' 1 ;: ■ /i ]^'Y w.i THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF FLINT & MacK A-V i|?l2 Eowan Buil^ SHIPPERS AND CARRIERS OF INTERSTATE AND INTRASTATE FREIGHT Third Edition Shippers am) Cahkikks OF Interstate am) Intrastate Freigjit Volume One By EDGAR VV ATKINS, LL. B. Of the Atf.axta Bar An. AN lA TIIK IIAl^MnsoX COMI'AXV I. AW P)()(tK INlU.ISlIF.HS Copyright 19()9, 1916 and 1920 BY Edgar Watkins T PREFACE. No l)r;m('li of the law is iiku-i' iiiiimrtaiit lliaii that relutin;^ to the ri^'lifs and duties i>f sliippci's and carriers, and no ijrancli (»f the law is less i^cncrally known. The purpose of this book is to assist tliose who may he called iii)on to advise as to such ri'_'hts and dulies lo an undei'standinf; of this in- terest int; phase of the law. In api)roacliinf; the subject the expei'ienee of an active prac- titioner was drawn upon to deleniiine what would lie most useful, not only to the le<;al profession, but to traflKc men, whether in the employ of the carriers or of tliose bureaus organi/e(i t hi-oii|j:hout the country to aid and advise ship[)ers. From tins experience, it was thouj^ht that where the state of the authoi-ities justified, the law should be given as nearly as mi<,'ht be in the lanfrua^je of the courts of final authority. For this reason, wliei-e (piestions liave been definitely deter- mined, liberid (piolations have been inserted. Afany (luestions, however, affecting the subject of this book have iu)t yet been settled. AVhere this is true, the opinions of tlh' fedei-al courts, the Interstate Commerce Commission and state courts, hav(^ been referred to and discussed. In this way it has been sought to deduce the principles of the law. The .\et to Kegulate Conuneree has been annotated, not only with the decisions of the courts, but also with the opin- ions of the Intei'state Commerce Commission. Tliis will en- a))le oiu^ desii'ing to investigate a i)ai'ticular provisit)n of tluit act to trace the construction thereof by the references which have Ic'ii made therctn l)y the tribunals ^\•hosc duty it is to enforce this great statute. The SluM-nuin and Clayton .\nti-Trust Statutes, the Twcnty- Kight Hour Law. and otliei- acts alVeeting the question are eitiMl and discusscii in so far as they relate to the subject under investigation. Statutes such as the Safety Appliance Acts, the Employers' Liability Act. the Hours of Service Act, the Federal Trade Commission auil Anti-Trust Acts, and other acts, a knowledge of which is necessarv to tln>se who. as prac- (7) 755850 8 Preface. titioners oi- otliei'wise have to do with the enforcement ol those laws, or are required to advise or act with reference thereto, are inserted. Because the r-onference rulings of the Interstate Commerce Coinmissiou are of such general use and are not always avail- able, and adopting the suggestions of lawyers and traffic officials familiar witii the practice before the Commission, these conference rulings have been copied at the end of Volume One While few lawyers have given special attention to the questions here discussed, the widening scope of interstate commerce makes it necessary that all practitioners shall be ready to advise clients as to their rights and liabilities grow- in4a. Same Subject. Amendment 1920. 35. Penalties for Failure to Pay Claim. 3<). Requiring Railroads to Perform Transportation Service. 37. Sale and Regulation of Passenger Tickets. 38. Same Subject. Mileage Books. 39. Free Transportation. 40. Routing Freight. 41. When Interstate Transportation Begins and Ends. 42. Attachments and Garnishments. 43. Rates. 44. Intrastate Rates Which Affect Interstate Rates. 45. Limitations on the Power of States to Regulate Intrastate Rates. 46. Property Basis for Returns. 47. When Does a Rate Violate Rights under the Fourteenth Amend- ment? 48. Rates. Evidence That a Rate Is Confiscatory. Rates on a Few Commodities. 49. Same Subject. Relative Cost of Different Kinds of Transporta- tion. 50. Testing a Rate by Use to Determine Whether or Not It Is Confiscatory. 51. Issuance of Stocks and Bonds. 52. Long and Short Haul. 53. Ferries. 54. Bridges. 55. Regulating Charges for Transportation by Water. 56. Regulating Pilotage, Ports, Harbors and Vessels. 57. Boards of Trade and Exchanges. 58. Inspection. Quarantine, Game. Food, Liquor, and Lottery Laws. 59. Taxation, Including License Taxes. GO. Procedure to Test the Validity of State Regulations. CHAPTER II. VALIDITY AND SCOPE OF THE ACT TO REGULATE COMMERCE. S 61. Common Law Obligations of Common Carriers. 62. Power of Congress over Interstate Commerce. 63. Constitutionality of the Act to Regulate Commerce. 63a. Same Subject. Transportation Act 1920. 64. Reasons for the Act to Regulate Commerce. 65. Carriers Included in the Act. 66. Carriers' Duties under the Act. 67. What Transportation Included in the Act. 68. Transportation Included in the Act, continued. Table of Contents. 11 69. Same Subject. 70. Powers and Procedure of the Interstate Commerce Commission. 71. Same Subject. 72. Switch Connections. 73. Damages and Penalties for Misquoting a Rate. 74. Penalties. 75. Investigations by the Interstate Commerce Commission. 76. Additional Power Given the Interstate Commerce Commission. 77. Commission May Suspend an Advance in Rates. 78. Report of Carriers. 79. Court Procedure with Reference to the Orders of the Commission. CHAPTER III. ALL CHARGES FOR SERVICES RENDERED BY COMMON CAR- RIERS IN THE TRANSPORTATION OF PERSONS OR PROPERTY OR IN CONNECTION THEREWITH MUST BE JUST AND REASONABLE. S 80. All Charges Must Be Reasonable. 80a. Rule Applies to Accessorial Services. 81. Classification. 81a. Class and Commodity Rates. 82. Cost of Carrier's Equipment. 83. Cost of Carrier's Equipment. What Is a Reasonable Return. 84. Same Subject. Difficulties in Determining the Question. 85. Cost of Service. 86. Cost. When Carrier's Duty to Furnish Service. 87. Cost of Service. Continued. 88. Value of Service. 89. Same Subject. Use to Which Commodity Put. 89a. Cost of Assembling Theory. 90. Value of the Commodity, Its General Utility and Danger of Loss. 91. Value of the Commodity. Difference Between the Raw and the Manufactured Product. 92. Competition or Its Absence Considered in Determining Rea- sonable Rates. 93. Same Subject. 94. Same Subject. Rule Since 1910. 95. Same Subject. Conclusion. 96. Rates Affected by Amount of Tonnage. 97. Same Subject. Limitations on Rule. 98. Density of Traffic. 99. Distance and Rate per Ton Mile. 99a. Extra Line Haul. 100. General Business Conditions. 12 Table of Contents. 101. Estoppel. 102. Rates Long in Existence Are Presumed to Be Reasonable. 103. Same Subject. 104. Voluntary Reduction of Rates. 105. Same Subject. Act June 18, 1910. 106. Grouping Territory and Giving Each Group Same Rate Legal under Some Circumstances. 107. Grouping Producing Points and Making Zones Taking Same Rates. 108. Basing Point System. 109. Same Subject. Breaking Rates. 110. Comparison Between Different Lines as a Means of Deter- mining Correct Rate. 111. Car Load and Less than Car Load Movement.^ as Affecting the Rate. 112. Establishing Car Load Rates. 113. Same Subject. Rule in Duncan Case Criticised. 114. Same Subject. Proper Differential Between Rates on Car Load and Less than Car Load Freight. 115. Car Load Minima. 116. Train Load Rates. 117. Relation of Through Rates to the Sum of Local Rates. 118. Proportional Rates. 119. Through Rate Must Not Exceed Aggregate of Intermediate Rates. 120. Through Routes and Joint Rates. 121. Same Subject. Amendments of 1910 and 1912. 122. Rates on Commodities Requiring Refrigeration 123. Rates on Returned Shipments. 124. The Public Interest Must Be Considered in Making Rates. 125. General Principles Applicable to the Question. What Is a Reasonable Rate? 126. Same Subject. Some Statements of the Commission as to Such General Principles. 127. Same Subject. Illustrative Cases. 128. Same Subject. Discussion of Principles in Chicago Live Stock Exchange Case. 129. Same Subject. Rate Considered in and of Itself. 130. Same Subject. Commission Not Bound by Technical Rules. 131. Same Subject. Summary. CHAPTER IV. EQUALITY IN RATES. ^ 132. Scope of Chapter. 133. Common Law as to Equality in Rates by Carriers. Table of Contents. 13 134. Same Subject. Damages. 135. Comparison of the English Railway and Canal Act with the Act to Regulate Commerce. 136. Discrimination Forbidden. 137. Discrimination against Individuals. 13.8. Same Subject. 139. Same Subject. Construction by the Commission. 139a. Same Subject. Independent Contributing Causes. 140. Same Subject. Allowances to Shippers. 141. Trap Car Service. 142. Peddler Cars. 142a. Private Cars. 143. Car Spotting. 144. Undue Preferences in Favor of Persons or Localities. 145. Same Subject. Application of Section made by the Com- mission. 145a. Differentials. 146. Discrimination against Traffic. 146a. Same Subject. Competition between Users of Related Raves. 147. Same Subject. Discrimination Beyond the Control of the Carrier. 148. Facilities for Interchange of Traffic and Rates and Charges to Connecting Lines Must Be without Undue or Unreason- able Preference. 149. Same Subject. Statute. 150. Same Subject. Statute and Proviso. 151. Through Routes and Joint Rates. 152. Discrimination by Charging More for a Shorter than a Longer Haul. 153. Long and Short Haul. Old Law Construed. Definite Con- struction. 154. Long and Short Haul Clause under Act of 1910. 154a. Long and Short Haul Clause under Act of I'jZO. 155. Fourth Section. Relationship between Through Rates and In- termediate Rates. 156. Discrimination between Car Loads and Less than Car Loads. 157. Bulked Shipments. 158. Car Loads, Ownership of. 159. Train Loads. 160. Classification of Commodities Should Be without Discrimi- nation. 161. Uniform Classification. 162. Power of the Commission over Classification. 163. Milling in Transit. 164. Rebilling. 165. Rebilling— Found Illegal. 166. Rebilling Illegal Only When Unjustly Discriminatory. 167. Rebilling. Conclusion. 14 Table of Contents. 168. Payment of Elevator Allowances 169. Transit Privileges— Generally. 170. Allowances to Tap Line Railroads. 171. Allowances to Industrial Tracks. 172. Illegal for Carriers to Transport Commodities Produced or Owned by Them or in Which They Are Interested. 173. Commodities Clause of Act of 1906. 174. Cars Must Be Furnished without Discrimination. 175. Same Subject. Principles Applied by the Commission. 176. Freight Charges Must Be Collected without Discrimination. 177. Right of Carrier to Route Shipments Beyond Its Own Ter- minus. 178. Discrimination in Billing. 179. Tariffs of Rates Must Be Printed, Posted and Maintained. 180. Same Subject. Misquoting Rates. 181. Different Rates over the Same Line in Opposite Directions. 182. Discrimination by Granting Free Service. 183. Basing Points, Group Rates and Zone Rates. 184. How Far a Rate Made by a State Relieves a Carrier from the Duty to Serve Communities with Legal Equality. 185. Commutation, Mileage and Party Rate Tickets. 186. Rebates. 187. Same Subject. Corporation Punishable. 188. Summary. CHAPTER V. ENFORCEMENT BY THE COMMISSION OF THE ACT TO REGU- LATE COMMERCE. § 189. General Statement of the Functions of the Interstate Com- merce Commission. 190. Appointment and General Duties of the Commission. 191. Switch Connections. Duty of Carriers. 192. Switch Connections. Powers of the Commis.-iion. 193. Industrial Switches and Railways. 194. Switch Connections with Carriers by Water. 195. Through Routes. 196. Division ot Joint Rates. 197. Allowances to Shippers for Services and Facilities. 198. Distribution of Cars. 198a. Furnishing Cars, Car Service. 199. Long and Short Haul Provisions, History of. 200. Relationship of Intermediate and Through Rates. 201. Water Competition. 202. Power of the Commission under the Fourth Section. 203. Ownership of Water Carriers by Railroads. Table of Contents. 15 204. The Commission's Duties with Reference to Schedules of Rates. 204a. Bills of Lading. 205. Damages. 206. Damages — Power of the Commission to Make Award of. 207. Awards of Damages for Charging an Unjust and Unreasonable Rate. 208. Awards of Damages for Unlawful Discrimination. 209. Damages under the Fourth Section. 210. Damages for Misrouting. 211. Damages — General Statement. 212. Damages for Misquoting a Rate. 213. Damages, to Whom Paid. 214. Damages, by Whom Paid. 215. Damages — Protest Unnecessary. 216. Damages — Interest and Attorney's Fees. 217. Award of Damages an Inadequate Remedy. 218. Damages, Limitation on Complaint for. 219. General Investigation by the Commission. 220. Same Subject. Amendments of 1910 and 1920. 221. Commission May Ask the Aid of the Courts to Enforce the Law. 222. Commission Has Power to Prescribe Rates for the Future. 223. Suspension of Rates, Re'gulations and Practices. 224. Through Routes and Joint Rates. 225. Allowances for Services or Instrumentalities. 226. Powers Enumerated, Not Exclude Others. 227. Effect of Commission's Orders. 228. Commission's Control Over Its Orders. 229. Commission May Employ Attorneys. 230. Records of Commission. 231. Valuation of Railroad Property. 232. Valuation, How Made. 233. Finality and Effect of Valuation. 234. Office of Commission. 235. Annual Reports from Carriers. 236. Examiners. 237. Reports by the Commission. 238. Lake Erie and Ohio River Ship Canal. 239. Parcel Post. 240. Government Aided Railroads and Telegraph Companies. 241. Common Law Remedies. CHAPTER VI. PROCEDURE OF THE INTERSTATE COMMERCE COMMISSION. § 242. Scope of Chapter. J 6 Table of Contents. 243. Switch Connections. 244. Relief under the Fourth Section. 245. Water Competition. 246. Railroad Owned Steamships. 247. Changes in Tariffs. 248. Forms of Tariffs. 249. Through Routes. 250. Complaints for Damages. 251. Same Subject — Order of Commission. 252. General Investigations. 253. Procedure in Formal Cas^s — Complaint. 254. Notice before Hearing. 255. Formal Complaints — Answer. 256. Hearings by the Commission. 256a. Proposed Reports. 257. Orders Relating to Rates and Practices. 258. Suspension of Rates. 259. Practices in Suspension Cases Where There Exist Intrastate Rates Lower than Proposed Interstate Rates. 260. The Weak and the Strong Roads. 261. Other Orders. 262. Service of Orders of the Commission. 263. Rehearings by the Commission. 264. Valuation of Property. 265. Oral Argument. 266. Estoppel by Former Order of the Commission. 267. Rules of Procedure Prescribed by the Commission. 268. Public Sessions and Hearings. 269. Parties. 269a. Interventions. 270. Complaints. 271. Answers. 272. Reparation Statements. 273. Service of Papers. 274. Amendment to Pleadings. 275-. Continuances. 276. Stipulations Desirable and Must Be in Writing. 277. Hearings. 278. Depositions, How Taken. 279. Witnesses and Subpoenas. 280. Documentary Evidence. 281. Briefs and Oral Argument. 282. Rehearings. 283. Free Copies of Transcript of Testimony, When Furnished. 284. Orders Must Be Compiled with and Notice Given to the Secretary of the Commission. 285. Fourth Section Applications. 286. Suspension of Rate Increases, How Obtained. Table of Contents. 17 287. Secretary to Give Information to Parties. 288. Address of the Commission. 288a. Specifications As to Complaints, etc. 288b. Office and Address of Commission. 289. Form of Complaints. 290. Form of Answer. 291. Intervening Petition. 291a. Petition for Rehearing. 291b. Form of Reparation Statement. 291c. Form of Complaint Against Federal Agent. Conference Rulings. Index to Conference Rulings. End of Volume One. VOLUME II. CHAPTER VII. 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 INTERSTATE COMMERCE COMMISSION. 292. Jurisdiction of the Courts of the States to Enforce Provisions of the Act to Regulate Commerce. 293. Same Subject. Statutory Provisions. 294. Same Subject. Awards of Damages. 295. Same Subject. Suit for Damages Against an Initial Carrier. 296. Compelling a Common Carrier to Transport. 297. Jurisdiction. General Statement. 298. Commerce Court. 298a. General Jurisdiction of Federal Courts. 299. Jurisdiction of the Courts of the United States to Compel the Attendance of Witnesses Before the Commission and Enforce Obedience to Act. 300. Enforcement of Forfeitures. 301. Mandamus. 302. To Enforce Rights under Act to Aid Railroads and Telegraph Companies. 303. Injunctions in Aid of Enforcement of Act. 304. Injunctions Against Unlawful Rates and Practices. 305. Same Subject. Conclusion. 306. Same Subject. Effect of Amendment of 1910. 307. Same Subject. Venue. 308. Jurisdiction of Suits to Set Aside Orders of the Commission. 308a. Right of Shipper to Set Aside a Negative Order. 308b. Parties. 18 Table of Contents. 309. Grounds upon Which Orders of the Commission May Be Set Aside. 310. Same Subject. Violations of the Constitution — Fourth Amend- ment. Sll. Violation of the Fifth Amendment. 312. Mistake of Law. 313. Lack of Jurisdiction. 314. The Substance and Not the Form of the Finding Determines. 315. Disregard of the Legal Effect of Undisputed Testimony. 316. Lack of Full Hearing. 317. Awards of Damages. 318. Awards of Damages — Parties and Procedure. 319. Procedure to Enforce or Annul Orders of the Commission. 320. Interlocutory Injunctions — Three Judges to Hear Application for. 321. Interlocutory Injunctions — Notice and Hearing. 322. Interlocutory Injunctions— Appeal from. 323. Appeal from Final Judgment. 324. Venue of Suits. CHAPTER VIII. ACTS OF CONGRESS INDIRECTLY AFFECTING INTERSTATE TRANSPORTATION. 325. Scope of Chapter. 326. Quarantine Laws Relating to Transportation. 327. Sherman Anti-Trust Law. 328. Clayton Anti-Trust Law. 329. Federal Trade Commission Law. 329a. Merchant Marine. 330. Safety Appliance Law. 331. Hours of Service Law. 332. Employers' Liability Law. 333. Arbitration And Labor Laws. 334. Breaking Seals of Railroad Cars Containing Interstate or For- eign Commerce. 334a. Transportation of Stolen Motor Vehicles Prohibited. 334b. Child Labor 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 CuUom Act. Table op Contents. 19 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, 20 Stat. L. 753, U. S. Comp. Stat. 1901, p. 3163, 3 Fed. Stat. Ann. 839. Amendment of February 8, 1895, Chap. 61, 28 Stat. U 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 Blkin's Act. Act February 25, 1903, Chap. 755, 32 Stat. L. 903, 10 Fed. Stat. Ann. 173, being section one of the Appropriation Act. Act June 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. Act of June 18, 1910, 36 Stat. L. 539. Chap. 309, U. S. Comp. Stat. Supp. 1911, p. 1288, Fed. Stat. Ann. Supp. 1912, pp. Ill to 127. Act Aug. 24, 1912, 37 Stat. L. 566, Chap. 390, Fed. Stat. Ann. Supp. 1914, p. 378. Known as' Panama Canal Act. Act Mch. 4, 1913, 37 Stat. L. 1013, Chap. 160, Fed. Stat. Ann. Supp. p. 226. Act Mch. 1, 1913, 37 Stat. L. 701, Chap. 92, Fed. Stat. Ann. Supp. 1914, p. 204. Act Oct. 22, 1913. Known as District Court Act. Government Aided Railroad and Telegraph Lines Act. Lake Erie and Ohio Ship Canal Act. Parcel Post Act. Witness Acts. Transportation Act 1920; Act February 28, 1920. Bill of Lading Act; Act August 29, 1916, U. S. Comp. Stat. 1916, Sees. 8604aaa to 8604w. 334c. Titles of Acts and Definitions. 335. Scope of Act to Regulate Commerce. 336. Not Applicable to Intrastate Transportation. 336a. Certain Water Transportation Exempted. 337. Term "Common Carrier," "Railroad," and "Transportation" Defined. 338. Duty of Carrier to Furnish Transportation and to Establish Through Routes. 339. All Transportation Charges Must Be Reasonable. . 340. Classification of Telegraph, Telephone and Cable Messages. 341. Classifications, Regulations and Practices Must be Reasonable. 20 Table of Contents. 342. Free Service with Certain Exceptions Prohibited and Penalties Prescribed. 342a. Excepting Cincinnati Southern Railway. 343. Railroad Companies Prohibited from Transporting Commodi- ties in Which They Are Interested, with Certain Exceptions. 344. Terms under Which Switch Connections Shall Be Maae. 344a. Car Service Defined. 344b. Duty of Carrier To Furnish Safe and Adequate Car Service. 344c. Duty of Carrier To Make Reasonable Distribution of Cars. 344d. Schedule of Car Service Must be Filed. 344e. Authority of Commission to Establish Car Service Rules. 344f. Authority of Commission to Req^iire Joint Use of Terminals. 344g. Routing Regulations. 344h. Commission May Act by Agents — Penalties. 344i. Extension and Abandonment of Present Railroad Facilities. 344j. Procedure in Applying For Extensions or Abandonments. 344k. Further Procedural Rules — Penalties. 3441. Commission May Require Extension of Facilities. 344m. Facilities Solely Within One State Exempted. 344n. Punishment For Obstructing Interstate or Foreign Commerce. 344o. Provisions Relating to Duties of Carriers During War. 345. Definition and Prohibition of Unjust Discrimination. 346. Undue and Unreasonable Preference Prohibited. 346a. Regulation of Collection of Transportation Charges. 347. Carriers Shall Accord Reasonable and Equal Facilities for In- terchange of Traffic. 347a. Joint Use of Terminal Facilities May be Required. 348. Rule as to Long and Short Hauls. 349. Relief From Long and Short Haul Clause. 350. Changes Not Required Until Further Orders. 351. Rates Reduced by Competition with Water Routes — Not In- creased When. 352. Pooling of Freights and Division of Earnings Regulated. 352a. Consolidation of Carriers. 352b. Commission To Adopt A Plan. 352c. Notice of Plan To Be Given. 352d. Conditions Under Uhich Consolidations Must Be Made. 352e. Applications To Consolidate. 352f. Express Companies Consolidation of. 352g. Anti-Trust Laws Not to Apply. 353. Rail Carrier Not to Own Competing Water Carriers. 354. Whether or Not Competition Exists to be Determined by the Commission. 355. Commission May Relieve from Provision. 356. Water Carriers to File Tariffs. 357. Violators of Sherman Anti-Trust Act Not to Use Panama Canal. 358. Carriers Shall File, Print and Keep Public Schedules of Rates. Table of Contents. 21 359. Regulations as to Printing and Posting Schedules of Rates tor Freight Moving Through Foreign Countries from and to Any Place in the United States. 360. No Change of Schedules of Rates Shall Be Made Without Notice. 361. Names of All Carriers Parties to Schedules Must Be Specified. 362. Carriers Shall File Contracts Relating to Traffic Arangements. 363. Commission May Prescribe Form of Schedules. 364. No Carrier Shall Participate in Interstate Commerce Unless the Charges Therefor are Published, and No Such Car- rier Shall Deviate from the Published Schedules. 365. Preference and Precedence May Be Given Military Traffic in Time of War. 366. The Commission May Reject Schedules. 367. Penalty for Failure to Comply with Orders under Section Six. 368. Penalty for Misstating or Failure to State Rate. 369. Must Post Name of Agent. 370. Corporations Violating the Act to Regulate Commerce Guilty as Individuals and Punishment Prescribed. 371. Rebate. Punishment for Offering, Granting, Soliciting, or Ac- cepting. 372. Act of Officer or Agent, When Binding. 373. Carrier Filing or Participating in Rate Bound Thereby. 374. Forfeiture for Rebating in Addition to Penalties. Limitation of Six Years Fixed. 375. Jurisdiction over Water Carriers. 376. Physical Connection Betvi^een Rail Lines and Dock of Water Carriers. 377. Through Routes and Joint Rates Between Rail and Water Carriers. 378. Proportional Rates to and from Ports. 379. Through Rates via Panama Canal. 380. Conditions under Which Through Routes and Joint Rates with Water Carriers May Be Operated to Be Prescribed by the Commission. 381. Contracts and Combinations to Prevent Continuous Carriage of Freight Prohibited. 382. Damages and Attorneys' Fees Allowed for Violations. 383. Where to Sue for Damages, Compulsory Attendance of Wit- nesses and Production of Papers. 384. Penalties for Violations of the Act. 385. Penalties for False Billing, False Classification, False Weigh- ing, etc., by Carriers. 386. Penalties against Shippers for False Billing, etc. 387. Penalties and Damages for Inducing Discriminations. 388. Appointment and Term of Office of Commissioners. 389. Power and Duty of Commissioners. 22 Table of Contents. 390. Power of Courts to Punish for Disobedience, Witnesses Not Excused Because Testimony May Incriminate. 391. Right to Talte Testimony by Depositions and the Manner Thereof Prescribed. 392. Persons Who May File Complaints with the Commission an-l Practice with Reference Thereto. 393. Commission May on Its Own Motion Institute Investigations. 393a. Procedure When State Rates Involved. 393b. Order of Commission Binding Notwithstanding State Laws. 394. Reports of Commission on Investigations, How Made and Published. 395. Power of Commission to Determine and Prescribe Just and Reasonable Rates, Regulations and Practices. 396. When Orders Take Effect and How Long Continue Unless Modified or Set Aside by the Commission or a Court. 396a. Through Routes and Joint Rates May Be Established by the Commission. 396b. Limitations on the Power to Prescribe Through Routes. 396c. Delivery of Ordinary Live Stock. 397. Division of Joint Rate May Be Prescribed by Commission. 398. Right to Suspend Proposed Increases in Rates. 399. Burden of Proof to Justify Rates Increased after Jan. 1, 1910. 400. Through Routes and Joint Rates May Be Established by the Commission. 401. Limitation of the Power to Prescribe Through Routes. 402. Shippers May Designate Routing. 403. Unlawful to Give or Receive Information Relative to Shipments. 404. Charges for Instrumentalities Furnished by Shipper Must Be Reasonable. 40.5. Enumeration of Powers of Commission Not Exclusive. 405a. Meaning of Word "Rates" and "Carriers". 405b. Commission's Power to Initiate Rates — Fair Return. 405c. Percentage Constituting a Fair Return To Be Determined By Commission. 405d. Determination of Aggregate Value of Property. 405e. Income In Excess of Fair Return a Trust Fund. 405f. Disposition of Excess Over Six Per Centum. 405g. Carriers' Use of Reserve Fund. 405h. Limit of Five Per Centum for Reserve Fund. 4051. Rules to be Prescribed for Recovery of Excess Income. 405j. Administration of This Trust Fund by Commission. 405k. Applications By Carriers for Loan of Trust Fund. 4051. Action by the Commission on Applications for Loans. 405m. Applications by Carriers for Lease of Facilities Controlled by the Commission. 405n. Procedure on Application for Lease. 405o. Commission May Purchase Equipment. 405p. Commission May Make Rules of Procedure. 405q. Section Not to Deprive Shippers of Right to Reparation. Table of Contents. 23 405r. Rights of Carriers When Undertaking New Construction. 406. Award of Damages Shall Be Made by Commission alter Hearing. 407. Carrier Failing to Comply with Order for Reparation, Suit May Be Brought Thereon in United States and State Courts, the Order Being Prima Facie Evidence of the Right to Re- cover. 408. Limitation on Actions for Damages. 409. All Parties Jointly Awarded Damages May Sue as Plaintiffs Against All Carriers Parties to the Award. 410. Service of Orders of Commission. 411. Commission May Suspend or Modify Its Orders. 412. Punishment for Knowingly Disobeying an Order Issued under Section Fifteen. 413. Special Attorneys May Be Employed. 414. Courts May Enforce Obedience to Commission's Order, Man- datory or Otherwise. 415. Schedules, Contracts, etc.. Must Be Filed with the Commis- sion, and, When Filed, Original or Certified Copy Prima Facie Evidence. 416. Rehearings May Be Granted by Commission. 417. Procedure before the Commission. 417a. Division of the Commission. 417b. Functions of Commission May Be Performed by Divisions. 417c. Procedure of Divisions — Rehearing by Whole Commission. 418. Salaries and Expenses of the Commission. 419. Principal Office of Commission in Washington, but May Prose- cute Inquiries Elsewhere. 420. The Commission Is Authorized to Investigate, Ascertain and Report the Value of Railroad Property. 421. Method of Procedure to Be Prescribed by the Commission. 422. How Such Investigation Is Prosecuted. 423. Duty of Carriers to Aid the Investigation. 424. Valuations to Be Revised and Corrected. 425. Carrier to Make Reports. 426.. Notice of Completion of Valuation. 427. Hearings Before Valuation Fixed. 428. Effect of Valuation as Evidence. 429. Applicable to Receivers — Penalty. 430. Jurisdiction of Courts to Aid. 431. Requirements as to Transportation of Employees of the Com- mission with Supplies Therefor. 432. Annual Reports Required and What They Shall Contain. Penalties for Failure to Make. 433. Commission May Prescribe Form of Keeping Accounts and Inspect Same. 434. Penalties for Failure to Keep Accounts and for Falsifying the Record. 24 Table of Contents. 435. The Commission May Permit the Destruction of Papers. 436. Penalty for an Examiner Divulging Information Received as Such. 437. United States Circuit and District Courts May, Upon Ap- plication of Attorney-General at Request of Commission, Enforce Provisions of Act. 43.8. Commission May Employ Agents or Examiners. 439. Receiving Carrier Liable for Loss, Remedy Cumulative. . 440. Carriers Liable for Full Value of Property Transported — ("um- mins Amendment. 440a. Bills of Lading. 440b. Bill of Lading Act — Transportation Included in Act. 440c. Straight Bill of Lading. 440d. Order Bill of Lading; Negotiable. 440e. Certain Order Bills. 440f. Indorsement on Order Bill. 440g. Indorsement on Straight Bill of Lading. 440h. Insertion of Name of Person to be Notified. 4401. Liability of Carrier to Purchaser of Order Bill. 440j. Person To Whom Carrier May Deliver Goods. 440k. Liability of Carrier in Case of Delivery of Goods to Wrong Person. 4401. Liability of Carrier to Purchase of Order Bill. 440m. Liability in Case of Loss of Part of Goods. 440n. Alterations. 440o. Courts May Order Delivery of Goods on Loss of Order Bill of Lading. 440p. Liability of Carrier on Bill of Lading Indorsed "Duplicate." 440q. Adverse Claim of Title. 440r. Requiring Conflicting Claimants to Interplead. 440s. Delivery By Carrier When Informed of Adverse Claim to Goods. 440t. Claim of Third Person Enforced by Legal Process. 440u. Shipper's Weight, Load and Count. 440v. Weight, Load and Count. 440w. Liability of Carrier on Bill of Lading Issued By Its Agent. 440x. Attachment by Garnishment. 440y. Remedies of Creditor. 440z. Lien of Carrier. 440aa. Liability of Carrier After Sale of Goods. 440bb. Negotiation of Order Bill by Delivery. 440cc. Transfer of Bill by Delivery. 440dd. Negotiation of Order Bill by Person in Possession. 440ee. Title and Rights Acquired by Transferee. 440ff. Rights of Transferee. 440gg. Compelling Indorsement of Order Bill. 440hh. Warranties Extend to Negotiation of Bill for Value. 440ii. Liability of Indorser for Acts of Carrier or Previous Indorsers. Table of Contents. 25 440jj. Warranties by Mortgagee. 440kk. Bona Fide Purchaser of Bill Wrongly Negotiated. 44011. Negotiation of Order Bill by Mortgagor. 440mm. Superior Rights of Bona Fide Purchaser of Order Bill. 440nn. Lien Valid. 440oo. Forgery or Counterfeiting Bill of Lading; Penalty. 440pp. Definitions. 440qq. Retroactive Effect. 440rr. Invalidity of Part of Act. 441. Carrier, As Used in This and Next Eleven Sections, Defined. 441a. Security Issues Regulated. 441b. Power of Commission Over Applications to Issue Securities. 441c. Commission To Prescribe Form of Applications. 441d. Notice of Sale of Securities Required. 441e. Notice of Applications — How Served. 441f. Exclusive and Plenary Jurisdiction Given Commission. 441g. No Guarantee by United States. 441h. Not Applicable to Notes — Rule as To No Par Stock. 441i. Reports of Carriers Showing Security Issues Required. 441j. Securities Not Authorized Void — Penalties. 441k. Interlocking Railway Directorates Regulated. 4411. Annual Reports by Commission to Congress. 442. Circumstances under Which Reduced or Free Fares and Rates May Be Given. 443. Existing Remedies Not Abridged or Altered. Pending Liti- gation Not Affected. 444. Interchangeable Mileage Tickets, How Issued. 445. Discrimination May Be Prevented by Writ of Mandamus, Remedy Cumulative. 446. Number, Terms, Qualification, Salary and Appointment of Com- missioners. 446a. Certain Water Carriers to File Schedules. 446b. Information To Be Furnished By Water Carriers. 446c. Change of Schedules To Be Filed. 446d. Through Bills of Lading Required. 44Ge. Such Through Lading Not An Arrangement for Continuous Service. 446f. Automatic Trains — Control Devices May Be Required. 446g. Title of Act. 447. Existing Laws as to Obtaining Testimony Applicable to Act. 448. Repealing Conflicting Laws Not to Affect Pending Suits. 449. Time of Taking Effect of Act. 450. Carriers Must Designate Agents in Washington. 451. Pending Cases Not Affected. 452. Commission to Investigate Questions Pertaining to Issuance of Stocks and Bonds. 453. Injunctions against Operation of State Statutes. 454. When Act Effective. 26 Table of Contents. 455. Parties Defendant Other than Carriers in Suit to Enforce Pro- visions of Act. 456. Equitable Proceedings May Be Instituted by the Commission to Restrain Discrimination or Departures from Published Rates. 457. Immunity and Compulsory Attendance of Witnesses, Produc- tion of Books and Papers. 458. Expediting Act Applicable to Suits Brought under Direction of Attorney-General. 459. Repealing Clause Not Affecting Pending Suits or Accrued Rights. 460. Commerce Court. 461. Commerce Court Abolished. 462. Venue of Suits on Orders of Interstate Commerce Commission. 463. Procedure in the District Courts. 464. Temporary Restraining Orders. 465. An Appeal to the Supreme Court from Interlocutory Orders. 466. Appeals from Final Judgments. 467. Pending Causes Transferred to District Courts. 468. Certain Cases Given Precedence and Hearing E.xpedited, Hear- ing Before Three Judges. 469. Direct Appeal to Supreme Court. 470. Government Aided Railroad and Telegraph Lines. 471. Connecting Telegraph Lines. 472. Duties Imposed on Interstate Commerce Commission. 473. Duty of the Attorney-General. 474. Penalties Provided. 475. Duty of Telegraph and Railroad Companies to File Contracts with and Make Reports to Interstate Commerce Commission. 476. Right of Congress to Alter or Annul Act. 477. Lake Erie and Ohio River Ship Canal. 478. Parcel Post. 479. Compulsory Attendance of Witnesses and Production of Pa- pers Provided for. 480. Amendment to Compulsory Attendance Act. 480a. Policy of Congress to Encourage Water Transportation. 480b. Effective Date Section Ten Clayton Act Extended. 480c. Part of Act Unconstitutional Not Invalidate Other Parts. 480d. Federal Control. CHAPTER X. ACTS RELATING TO THE TRANSPORTATION OP ANIMALS. 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, Table of Contents. 27 Act March 4, 1907, Chapter 2907, 34 Stat. L. 12G0 et seq., requiriiife inspection of meat. Act March 3, 1905, 33 Stat. L. 1264, Ch. 1496, U. S. Comp. St. Supp. 1909, p. 1185, relating to transportation of animals from quarantine territory. § 481. Time Prescribed for Feeding and Unloading Animals in Transit. 482. Feeding Shall Be at Expense of Owner, Lien Given for Food. 483. Penalty. 484. Meat Inspection Act. 485. Transportation of Animals from Quarantine Territory. CHAPTER XI. TRUSTS AND OTHER COMBINATIONS IN RESTRAINT OF TRADE. § 486. Contracts, Combinations and Conspiracies in Restraint of In- terstate Commerce Illegal. 487. Monopolies and Conspiracies and Combinations to Monopo- lize Interstate Trade Illegal. 488. Prohibition Applies to Territories and Between States and Territories. 489. Courts Given Jurisdiction to Enjoin Violations of Act. 490. Practice with Reference to Parties and Service of Subpoenas Thereon. 491. Property Owned under a Contract Violating This Act Being in Course of Interstate Transportation May Be Seized and Forfeited. 492. Measure of Damages in Favor of Person Injured. 493. Person Includes Corporation and Association. 494. Act of August 28, 1894, So Far as It Relates to Trusts and Combinations in Restraint of Trade. 495. Clayton Act. Definitions. 496. Price Discrimination Prohibited. 497. Lease or Sale of Patented Articles. 498. Damages May Be Recovered by Person Injured. 499. Effect of Final Judgments in Criminal Prosecutions. 500. Labor Not a Commodity. 501. Acquisition by a Corporation of Stock in Another Corpora- tion, When Prohibited. 502. Interlocking Directorates, When Prohibited. 503. Punishment of Corporate Officers. 504. Certain Contracts of Common Carriers Must Be Let by Com- petitive Bids. 505. Authority to Enforce Certain Provisions of Act Vested in Interstate Commerce Commission, Federal Reserve Board and Federal Trade Commission. 28 Tablk of Contents. 506. Procedure for Hearings by Boards Vested with Jurisdiction under Act. 507. Effect of the Orders of Boards. 508. Judicial Proceedings to Enforce the Orders of the Boards. 509. Venue of Suits. 510. Attendance of Witnesses. 511. Guilt of Corporation Deemed Guilt of Officers. 512. District Courts Invested with Jurisdiction to Prevent Viola- tions of the Act. 513. Private Persons May Obtain Injunctive Relief, When. 514. Procedure in the Issuance of Temporary Restraining Orders. 515. Security Before Issuing Restraining Orders, When Required. 516. What Injunction Orders Shall Contain. 517. Injunctions in Suits Between Employer and Employee. 518. Disobedience of Orders of Court. 519. Same Subject. Procedure Prescribed. 520. Right to Trial by Jury Provided for. 521. Review of Convictions for Violation of Court Orders. 522. Provision for Trial for Disobedience to Orders of Courts Not Applicable to Contempt Committed in the Presence of the Court. 523. Limitation in Proceedings for Contempt. 524. That Part of the Act Invalid, Not to Affect Validity of Other Portions. 525. Dumping Prohibited. APPENDICES. Federal Control Act and Provisions of Transportation Act 1920 Terminating Federal Control. 2. Labor Provisions of the Transportation Act 1920 and Adamson Eight Hour Law. A. Federal Trade Commission Act. B. An Act to promote the safety of employees and travelers upon rail- roads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes. C. An Act to amend an act entitled "An act to promote the safety of employees and travelers upon railroads by compelling com- mon 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. D. Supplement to Safety Appliance Acts. E. An act requiring common carriers engaged in interstate commerce to make full reports of all accidents to the Interstate Com- merce Commission. F. Medals of Honor Act. (29) 30 Appendices. An Act to promote the safety of employees and travelers upon rail- roads by limiting the hours of service of employees thereon. H. Ash Fan Act. An act to promote the safe transportation in interstate commerce of explosives and other dangerous articles, and to provide penalties for its violation. Boiler Inspection Act. K. An act concerning carriers engaged in interstate commerce and their employees. Employers Liability. L. Arbitration Act. M. Breaking Seals of Cars Prohibited, Act providing for. N. National Motor Vehicle Theft Act. O. The Shipping Act. P. National Prohibition. GENERAL INDEX. TABLE OF CASES CITED. '• [References are to Sections.] A. Abby Dodge, The (223 U. S. 166, 56 L. Ed. 390, 32 Sup. Ct. 310), 53. Aberdeen Group Commercial Asso. v. Mobile & O. R. Co. (10 I. C. C. 289), 346, 348. Acme Belting Co. v. A. & R. Co. (52 I. C. C. 15), 81. Acme Cement Plaster Co. v. L. S. & M. S. R. Co. (17 I. C. C. 30), 146. Acme Cement Plaster Co. (18 I. C. C. 376), 218. Adams v. Milwaukee (228 U. S. 572, 57 L. Ed. 971, 33 Sup. Ct. 610), 326. Adams v. Milwaukee (144 Wis. 371, 129 N. W. 518, 43 L. R. A. (N. S.) 1066), 326. Adams v. Miss. Lumber Co. (84 Miss. 29, 44 L. R. A. (N. S.) 257, 36 So. 68), 58. Adams Ex Co. v. Commonwealth (154 Ky. 462, 157 S. W. 90S, 48 L. R. A. (N. S.) 342), 58. Adams Ex. Co. v. Croninger (226 U. S. 491, 57 L. Ed. 314, 33 Sup. Ct. 148), 34, 439. Adams Ex. Co. v. Kentucky (206 U. S. 129, 51 L. Ed. 987, 27 Sup. Ct. 606), 58. Adams Ex. Co. v. Kentucky (214 U. S. 218, 53 L. Ed. 972, 29 Sup. Ct. 633), 58. Adams Ex. Co. v. Mellichamp (138 Ga. 443, 75 S. E. 596), 34. Addyston Pipe & Steel Co. v. United States (175 (U. S. 211, 14 L. Ed. 136, 20 Sup. Ct. 96, 1 Fed. Anti-Trust Dec. 1009), 486, 489, 491 Advances in Rates— Eastern Case (20 I. C. C. 243), 82, 96, 98, 126, 223, 231, 398, 399. Advances in Rates— Western Case, (20 I. C. C. 307), 80, 81, 82, 84, 87, 88, 100, 126, 130, 223, 392, 398, 399. Advances in Rates— Western Case— 1915 (35 I. C. C. 497) (See Wes- tern Rate Advance Case 1915). Advances in Rates on Grain (21 I. C. C. 22), 88, 398, 399. i^dvances on Ground Iron Ore (26 I. C. C. 675), 397. Aetna Powder Co. v. W. R. Co. (39 I. C. C. 199), 335. Alabama & N. 0. Tr. Co. v. Doyle (210 Fed. 173), 58. (31) 32 Table of Oases Cited. [References are to Sections.] Alabama & Vicksburg R. Co. v. Railroad Com. of Miss. (203 U. S. 496, 51 L. Ed. 289, 27 Sup. Ct. 163, 86 Miss. 667, 38 So. 356), 36, 37, 166. Alabama G. S. R. Co. v. Fowler (104 Ga. 148, 30 S. E. 243), 15. Alabama G. S. R. Co. v. McFadden & Bros. (232 Fed. 1000, 241 Fed. 562, — C. C. A. — ), 41, 364. Alabama Packing Co. v. L. & N. R. Co. (47 I. C. C. 524), 209. Alan Wood Iron & Steel Co. v. P. R. Co. (22 I. C. C. 540), 43, 143. 193. Alaska Investigation (44 I. C. C. 680), 85, 343. Alaska Steamship Co. v. International Longshoremen's Asso. (236 Fed. 964), 384, 517. Alaska Steamship Co. v. United State (259 Fed. 713), 204a. Albree v. B. & M. R. Co. (22 I. C. C. 303), 122, 403. Aldrich & ^tna Co. (8 Wall., 75 U. S. 491, 19 L. Ed. 473), 55. Alender v. Chicago, B. & Q. R. Co. (16 I. C. C. 103), 383. Alexander v. United States (201 U. S. 117, 50 L. Ed. 686, 26 Sup. Ct. 356, 2 Fed. Anti-Trust Dec. 945), 486. Algert Co. v. D. & R. G. Co. (20 I. C. C. 93), 346.. Alleged Unreasonable Rates on Live Stock (41 I. C. C. 514), 207. Alleged Unreasonable Rates on Meat (28 I. C. C. 332), 408. Allen V. Louisiana (103 U. S. 80, 26 L. Ed. 318), 480c. Allen V. Louisville, N. A. & C. R. Co. (1 I. C. C. 199, 1 I. C. R. 621), 348. Allen V. Oregon R. & Nav. Co. (98 Fed. 16), 339. Allen V. St. L. I. M. & S. R. Co. (230 U. S. 553, 57 L. Ed. 1625), 33 Sup. Ct. 1030), 45, 84. Allen V. Texas & Pac. R. Co. (100 Tex. 825, 101 S. W. 792), 24. Allowances to Kanawha, Glen & Eastern (41 ¥. C. C. 53), 343. Alpha Portland Cement Co. v. B. & O. R. Co. (22 I. C. C. 446), 183. Alton Board of Trade v. C. & A. R. Co. (28 I. C. C. 589), 348. American and Other Express Companies v. United States (212 U. S. 522, 53 L. Ed. 635, 29 Sup. Ct. 315), 66, 335, 442. American Asphalt Asso. v. Uintah Ry. Co. (13 I. C. C. 196), 339. American Banana Co. v. United Fruit Co. (160 Fed. 184), 492. American Banana Co. v. United Fruit Co. (166 Fed. 261, 92 C. C. A. 325), 486, 492. American Banana Co. v. United Fruit Co. (213 U. S. 347, 53 L. Ed. 826, 29 Sup. Ct. 511), 486. American Brake, Shoe & Foundry Co. v. Pere Marquette R. Co. (23 L C. C. 519), 99. American Ex. Co. v. Iowa (196 U. S. 133, 49 L. Ed. 417, 25 Sup. Ct. 182), 58. Table of Cases Cited. . 38 [References are to Sections.] American Express Co. v. United States (212 U. S. 522, 53 L. Ed. 635, 29 Sup. Ct. S15), 33, 303. American Ex. Co. v. Miller (104 Miss. 247, 61 So. 306, 45 L. R. A. (N. S.) 120), 58. American Ex. Co. v. South Dakota (244 U. S. 617, 61 L. Ed. 1352, 37 Sup. Ct. 656), 44, 292. American Insulated Wire & Cable Co. v. Chicago & N. W. R. Co. (26 I. C. C. 415), 245, 351. American National Live Stock Asso. v. Tex. & Pac. Ry. Co. (12 I. C. C. 32), 338. American Paper & Pulp Asso. v. B. & O. R. Co. (41 I. C. C. 506), 337, 358. American Press Asso. v. United States (245 Fed. 91), 486. American Round Bale Press Co. v. A. T. & S. F. Ry. Co. (32 I. C. C. 458), 113, 345. American Smelting & Refining Co. v. Union P. R. Co. (256 Fed. 737, — C. C. A. — ), 12. American Steel Co. v. American Steel & Wire Co. (244 Fed. 300), 492. American Sugar Refining Co. v. Delaware, L. & W. R. Co. (207 Fed. 733, 125 C. C. A. 251), 197, 335, 345, 346, 358, 371, 395, 404. American Sugar Refining Co. v. Delaware, L. & W. Ry. Co. (200 Fed. 652), 140, 335, 345, 346, 371, 395, 404. American Tie and Timber Co. v. Kansas City So. Ry. Co. (175 Fed. 28), 383. Ames V. Kirby (71 N. J. L. 446, 59 Atl. 558), 58. Ames V. Union Pac. R. Co. (64 Fed. 165), 49, 84. Anaconda Copper Mining Co. v. Chicago & E. R. Co. (19 I. C. C. 592), 195. Anadarko Cotton Oil Co. v. A. T. & S. F. R. Co. (20 I. C. C. 43), 207, 383. Anderson v. Pacific C. S. Co. (225 U. S. 187, 56 L. Ed. 1017, 32 Sup. Ct. 526), 56. Anderson Clayton & Co. v. C. R. I. & P. Ry. Co. (18 I. C. C. 340), 140. Andrews Bros. Co. v. P. R. Co. (38 I. C. C. 165), 346. Ann Arbor R. Co. v. Fellows (236 Fed. 387), 47, 60. Anson Gilkey & Kurd Co. v. So. Pac. Co. (33 I. C. C. 332), 88, 147. Anthony Salt Co. v. Mo. Pac. R. Co. (5 I. C. C. 299, 4 1 C. R. 33), 90. Appalachian Lumber Co. v. Louisville & N. R. Co. (25 I. C. C. 193). 117, 209. Application Grand Trunk Ry. Co. (43 I. C. C. 286), 354. Application of the Duluth South Shore & A. R. Co. (34 I. C C. 229). 335. 34 Table of Cases Cited. FReferences are to Sections.] Application of the Southern Pac. Co. (32 I. C. C. 690, S4 I. C. C. 648), 335, 354. Application of the Spokane P. & S. R. Co. (33 I. C. C. 462), 335. Application Grand Trunk Ry. Co. (34 I. C. C. 49), 354. Application S. P. Co. Operation S. S. Co. (32 I. C. C 692), 203. Arkadelphia Mill Co. v. St. L. S. W. R. Co. (249 U. S. — , 63 L. Ed. — , 39 Sup. Ct. 237, P. U. R. 1919 C 710), 41. Arkansas Brokerage Co. v. Dunn (173 Fed. 899), 486. Arkansas Fertilizer Co. v. St. L. I. M. & S. Ry. Co. (25 I. C. C. 266, 645), 398, 408. Arkansas Fertilizer Co. v. United States (193 Fed. 667), 218. Arkansas Fuel Co. v. C. M. & St. P. Ry. Co. (16 I. C C. 95), S39, 364, 383, 392, 394. .vrliiigton Heights Freight Ex. v. So. Pac. Co. (39 I. C. C. 88). 207. Arlington Heights Fruit Exchange v. S. Pac. Co. (20 I. C. C. 106), 222, 398. Arlington Heights Fruit Exchange v. S. Pac. R. Co. (22 I. C. C. 149), 107, 222, 311. Armour & Co. v. Tex. & Pac. Ry. Co. (258 Fed. 185, — C. C. A. — ), 9. Armour & Co. v. Virginia (246 U. S. 1, 62 L. Ed. 547, 38 Sup. Ct. 267), 59. Armour Packing Co. v. United States (209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428), 64, 93. Asbell V. Kansas (209 U. S. 251, 52 L. Ed. 778, 28 Sup. 485, 26 L. R. A. (N. S.) 279, 14 Ann. Cas. 1101), 58. Ashgrove Cement Co. v. A. T. & S. F. Ry. Co. (23 I. C. C. 519), 99. Ashland Fire Brick Co. v. S. Ry. Co. (22 I. C. C. 115), 345. Ashtabula-Port Maitland Car-Ferry Service (40 I. C. C. 143), 354. Associated Jobbers ot Los Angeles v. A. T. & S. F. R. Co. (18 I. C. C. 310), 193, 197. Associated Railways Classification Exceptions (41 I. C. C. 561), 161. Association of Union Made Garment Mfgr's of America v. Chicago & N. W. R. Co. (16 L C. C. 405), 88, 89, 90, 91. Astoria v. S. P. & S. Ry. Co. (38 I. C. C. 16), 134. Atchison, T. & S. F. Ry. Co. v. Denver & N. 0. R. Co. (110 U. S. 667, 28 L. Ed. 291, 4 Sup. Ct. 185), 148, 327. Atchison, T. & S. F. R. Co. v. Goetz (51 111. App. 151), 178. Atchison, T. & S. R. Ry. Co. v. Harold (241 U. S. 371, 60 L. Ed. 1050, 36 Sup. Ct. 665), 41. Atchison, T. & S. F. Ry. Co. v. Holmes (18 Okla. 92, 90 Pac. 22), ISO, 213. Table of Cases Cited. 35 [References are to Sections.] Atchison, T. & S. F. Ry. Co. v. Int. Com. Com. (188 Fed. 229). 193, 197, 315. Atchison, T. & S. F. Ry. Co. Int. Com. Com. (190 Fed. 591), 101, 311, 312. Atchison, T. & S. F. Ry. Co. v. Robinson (223 U. S. 173, 58 L. Ed. 90, 34 Sup. Ct. 556, 36 Okla. 435, 129 Pac. 20), 34. Atchison, T. & S. F. Ry. Co. v. Spiller (246 Fed. 1, 158 C. C. A. 227), 129, 207, 211, 256, 317, 318, 383, 406. Atchison, T. & S. F. R. Co. v. State (23 Ok. 210, 231, 100 Pac. 11, 16), 9. Atchison, T. & S. F. Ry. Co. v. United States (191 Fed. 856), 63, 107, 154, 202, 343, 346, 348. Atchison, T. & S. F. Ry. Co. v. United States (203 Fed. 56), 87. 222, 311, 443. Atchison, T. & S. F. Ry. Co. v. United States (231 U. S. 736, 58 L. Ed. 460, 34 Sup. Ct. 316), 87. Atchison, T. & S. F. R. Co. v. United States (170 Fed. 250, 95 C. C. A. 446), 371. Atchison, T. & S. F. R. Co. v. United States (178 Fed. 12, 101 C. C. A. 140), 481. Atchison, T. & S. F. R. Co. v. United States (204 Fed. 647), 398. Atchison, T. & S. F. R. Co. v. United States (232 U. S. 199, 58 L. Ed. 568, 34 Sup. Ct. 291), 143, 222, 313, 315, 398. Atchison, T. & S. F. R. Co. v. Vosberg (238 U. S. 56, 59 L. Ed. 1199, 35 Sup. Ct. 675), 407. Athanasaw v. United States (227 U. S. 326, 57 L. Ed. 528, 33 Sup. Ct. 285, Ann. Cas. 1913E, 911), 2. Atkins V. Fiber Disintegrating Co. (18 Wall., 85 U. S. 272, 21 L. Ed. 841), 307. Atkinson v. Southern Ex. Co. (94 S. C. 444, 78 S. E. 516, 48 L. R. A. (N. S.) 349), 58. Atlantic & Pacific Tea Co. v. Cream of Wheat Co. (224 Fed. 566, 227 Fed. 46), 496. Atlantic C. L. R. Co. v. Florida (203 U. S. 256, 51 L. Ed. 174, 27 Sup. Ct. 108), 48. Atlantic C. L. R. Co. v. Glenn (239 U. S. 388, 60 L. Ed. 344, 36 Sup. Ct. 154), 34. Atlantic C. L. R. Co. v. Goldsboro (155 N. C. 356, 71 S. E. 514), 15. Atlantic C. L. R. Co. v. Goldsboro (232 U. S. 548, 58 L. Ed. 721, 34 Sup. Ct. 364), 15. Atlantic Coast Line R. Co. v. Henderson (131 Ga. 75, 61 S. E. 1111), 295. 36 Table of Cases Cited. [References are to Sections.] Atlantic Coast Line R. Co. v. Int. Com. Com. (194 Fed. 449), 222, 443. Atlantic Coast Line R. Co. v. Macon Grocery Co. (166 Fed. 206, 92 C. C. A. 114), 304, 383, 443. Atlantic Coast Line R. Co. v. Mazursky (216 U. S. 122, 54 L. Ed. 411, 30 Sup. Ct. 378, 78 S. C. 36, 58 S. E. 927, 125 Am. St. Rep. 762), 35. Atlantic Coast Line R. Co. v. North Carolina Corporation Commis- sion (206 U. S. 1, 51 L. Ed. 933, 27 Sup. Ct. 585, 11 Ann. Cas. 398), 12, 19, 45, 47, 49, 86, 87, 124, 311, 316, 396. Atlantic C. L. R. Co. v. Riverside Mills Co. (219 U. S. 186, 55 L. Ed. 167, 31 Sup. Ct. 164, 31 L. R. A. (N. S.) 7), 12, 439. Atlantic C. L. R. Co. v. State (42 Fla. 358, 29 So. 319, 89 Am. St. Rep. 233), 13. Atlantic C. L. R. Co. v. State of Ga. (234 U. S. 280, 58 L. Ed. 312, 34 Sup. Ct. 829), 15, 22, 31. Atlantic C. L. R. Co. v. Wharton (207 U. S. 328, 52 L. Ed. 230, 28 Sup. Ct. 121), 19, 21. Atlantic S. R. & G. Co. v. State (135 Ga. 545, 69 S. E. 725, 32 L. R. A. (N. S.) 20), 31. Attorney-General (Mass.) v. Eastern R. Co. (137 Mass. 45), 9. Attorney-General v. Great Northern R. Co. (29 L. J. Ch. (N. S.) 794), 172. /Vttorney-General v. Old Colony R. Co. (160 Mass. 62, 35 N. E. 252, 22 L. R. A. 112), 38. Audley Hill & Co. v. S. R. Co. (20 I. C. C. 225), 105. Augusta & Sav. S. S. Co. v. O. S. S. Co. (26 I. C. C. 380), 65, 121, 151, 194, 195, 375, 392. Augusta Southern R. Co. v. Wrightsville & T. R. Co. (74 Fed. 522), 108, 335, 345, 346, 347. Aurora, The (7 Cranch. 11 U. S. 382, 3 L. Ed. 378), 54. Austin V. Tennessee (179 U. S. 343, 45 L. Ed. 224, 21 Sup. 132), 58. B. Babbitt v. G. T. W. R. Co. (285 111. 267, 120 N. E. 803), 440. Baer Bros. Mercantile Co. v. Mo. Pac. Ry. Co. (13 I. C. C. 329), 214, 317, 383, 392. Baer Bros. Mercantile Co. v. M. P. R. Co. (17 I. C. C. 225), 317, 383, 407. Baer Bros. v. D. & R. G. R. Co. (233 U. S. 479, 58 L. Ed. 1055, 34 Sup. Ct. 641), 207, 215, 314, 317, 383, 407. Bailey v. W. U. Tel Co. (171 S. W. 839), 340. Baker v. State (54 Wis. 368, 12 N. W. 12), 45. Table of Cases Cited. 37 [References are to Sections.] Baker Mfg. Co. v. C. & N. W. R. Co. (21 I. C. C. 605), 213. Baker-Whitely Coal Co. v. B. & O. R. Co. (188 Fed. 405. 110 C. C. A. 234, 176 Fed. 632), 327, 486. Balfour, Guthrie & Co. v. 0. W. R. & Nav. Co. (21 I. C. C. 539), 140, 404. Ball, The Daniel (10 Wall, 77 U. S. 557, 19 L. Ed. 999). See Daniel Ball. Baltic Mining Co. v. Mass (231 U. S. 68, 58 L. Ed. 127, 34 Sup. Ct. 15, 207 Mass. 381, 93 N. E. 831, Ann. Cas 19i3C 805), 59. Baltimore & C. S. S. Co. v. A. C. L. R. Co. (49 I. C. C. 176), 118, 121, 151, 194, 249, 375, 376. Baltimore & O. R. Co. v. Hamburger (155 Fed. 849), 358. Baltimore & 0. R. Co. v. Int. Com. Com. (145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844), 38. Baltimore & 0. R. Co. v. Int. Com. Com. (221 U. S. 612, 55 L. Ed. 878, 31 Sup. Ct. 621), 3, 310, 311, 432. Baltimore & O. R. Co. v. Leach (249 U. S. 217, 63 L. Ed. — , 39 Sup. Ct. — ), 440. Baltimore & 0. R. Co. v. United States (200 Fed. 779), 140, 197, 312, 335, 343, 404. Baltimore & O. R. Co. v. United States (215 U. S. 481, 54 L. Ed. 292, 30 Sup. Ct. 164), 145, 174, 198, 208, 296, 445. Baltimore & O. R. Co. v. United States (220 U. S. 94, 55 L. Ed. 384, 31 Sup. 368), 483. Baltimore & O. S. W. R. Co. v. United States (195 Fed. 962), 191. 222. Baltimore Butchers Abattoir & Live Stock Co. v. P. B. & W. R. Co. (20 I. C. C. 124), 101, 104, 249. Baltimore Chamber of Commerce v. B. & O. R. Co. (45 I. C C. 40), 340. Bancroft, Whitney & Co. v. C. N. O. & T. P. R. Co. (24 I. C. C. 557), 88. Bank of Hamilton v. Dudley (2 Pet. 492, 7 L. Ed. 496), 480c. Banner Milling Co. v. N. Y. C. & H. R. R. Co. (14 I. C. C. 398), 226, 266, 416. Banner Milling Co. v. N. Y. C. & H. R. R. Co. (13 I. C. C. 31), 346. Bannon v. So. Ex. Co. (13 I. C C. 516), 383 Baran v. Goodyear Tire Co. (256 Fed. 570), 486, 487. Barber Asphalt Co. v. Morris (1^2 Fed. 945, 66 C. C. A. 55, 67 L. R A. 761), 60. Barden & S. v. Lehigh V. R. Co. (12 I. C. C. 193), 434. Barnes Co. v. Berry (156 Fed. 72), 487. Barnett v. Spokane, P. & S. Ry. Co. (210 Fed. 94), 332. 38 Table of Cases Cited. [References are to Sections.] Barrett v. City of New York (183 Fe^. 793. 189 Fed. aC8), 25, 6G. Barrett v. City of New York (232 U. S. 14, 58 L. Ed. 483, 34 Sup. Ct. 203), 4, 25, 337. Barrett v. Gimbel Bros. (226 Fed. 623, 141 C. C. A. 379), 297. Bascom Co. v. A. T. & S. F. Ry. Co. (17 I. C. C. 354), 118, 346. Bates V. C. M. & St. P. R. Co. (60 Wis. 296, 19 N. W. 72, 50 Am. St. Rep. 369), 42. Bates V. Penn. R. Co. (4 I. C. C. 281, 3 I. C. R. 296), 416. Bauer & Cie v. O'Donnell (229 U. S. 1, 57 L. Ed. 1041, 33 Sup. Ct. 616), 486. Baxendale v. Eastern Counties R. Co. (4 C. B. N. S. 63), 133. Baxendale v. L. & S. W. Ry. (4 H. & C. 130, 35 L. J. Ex. 108, L. H. 1 Ex. 137, 12 Jur. (N. S.) 274, 14 L. T. 26, 14 W. R. 458), 157. Baxter & Co. v. Georgia S. & F. Ry. Co. (21 I. C. C. 647), 119. Bay State Milling Co. v. Transit Corp. (43 I. C. C. 338), 399. Beach-Nut Packing Co. v. Federal Trade Commission ( — Fed. — ), 329. Beardsley v. N. Y. L. E. & W. R. Co. (162 N. Y. 230, 56 N. E. 488), 38. Becker v. P. M. R. Co. (28 I. C. C. 645), 208. Beebe & Runyan Furn. Co. v. C. B. & Q. R. Co. (41 I. C. C. 464), 348. Beekman Lumber Co. v. St. Louis, I. M. & S. R. Co. (15 I. C. C. 274), 218. Behlmer v. Louisville & N. R. Co. (71 Fed. 835), 335, 347. Behlmer v. Louisville & N. R. Co. (83 Fed. 898, 28 C. C. A. 229, 42 U. S. App. 581), 335, 348. Behlmer v. Memphis & C. R. Co. (6 I. C. C. 257, 4 I. C. R. 520), 335, 347. Belfast, The (7 Wall, 74 U. S. 624, 19 L. Ed. 266), 55, 56. Bein V. United States (259 Fed. 822, — C. C. A. — ), 486. Bell Co. V. Baltimore, etc., R. Co. (9 I. C. C. 632), 345. Bement v. National Harrow Co. (186 U. S. 70, 46 L. Ed. 1058, 22 Sup. Ct. 747, 2 Fed. Anti-Trust Dec. 109, 486. Bennett v. United States (227 U. S. 333, 57 L. Ed. 531, 33 Sup. Ct. 288), 2. Benson, Ex parte (18 S. C. 38), 133. Bernheim v. O. R. & N. Co. (25 I. C. C. 156), 88. Berwind-White Coal Mining Co. v. C. & E. I. R. Co. (235 U. S. 371, 59 L. Ed. 275, 35 Sup. Ct. 131), 356. Best V. Gt. N. R. Co. (33 I. C. C. 1), 383, 404. Best V. Seaboard A. L. Ry. Co. (72 S. C. 479, 52 S. E. 223), 35. Bigbee & Warrior River Packet Co. v. Mobile & O. R. Co. (60 Fed. 545), 345, 346. Bigelow V. Calumet & Hecla Mining Co. (155 Fed. 869), 489. Table of Cases Cited. 39 [References are to Sections.] Bigelow V. Calumet & Hecla Mining Co. (167 Fed. 704), 486, 489. Bigelow V. Calumet & Hecla Mining Co. (167 Fed. 721, 94 C. C. A. 13), 486, 489. Bills of Lading (14 I. C. C. 346), 252. Bills of Lading (29 L C. C. 417), 26, 252. Bills of Lading (52 I. C. C. 671), 25, 34a, 204a, 440a. Binney v. Cumberland-Ely Coffee Co. (183 Fed. 650), 486. Birmingham Packing Co. v. Texas & P. Ry. Co. (12 I. C. C 29, 500), 338. Birmingham Water Works v. Birmingham (211 Fed. 497), 453. Bishop V. American Preservers' Co. (51 Fed. 272, 1 Fed. Anti-Trust Dec. 49), 492. Bishop V. American Preservers' Co. (105 Fed. 845), 492. Bitterman v. L. & N. R. Co. (207 U. S. 205. 52 L. Ed. 171, 28 Sup. Ct. 91), 37. Bituminous Coal to C. F. A. Territory (46 L C. C. 66), 88. Bitzer v. W. V. R. Co. (24 I. C. C. 255), 185. Black Horse Tobacco Co. v. I. C. R. Co. (17 L C. C. 588), 195, 214. Black Mt. Coal Land Co. v. So. Ry. Co. (15 I. C. C. 286), 345, 346. Blackwell Milling & Elevator Co. v. Mo. K. & T. Ry. Co. (12 I C. C. 23), 245, 346. Blakely S. R. Co. v. A. C. L. R. Co. (26 I. C. C. 344), 344. Blindell & Hagan (54 Fed. 40, 1 Fed. Anti-Trust Dec. 106), 489. Blinn Lumber Co. v. So. Pac. Co. (18 1. C. C. 430), 218, 406, 408. Block V. Standard Distilling & D. Co. (95 Fed. 978, 1 Fed. Anti-Trust Dec. 993), 492. Blount Mfg. Co. V. Yale & Towne Mfg. Co. (106 Fed. 555), 486. Bluefield Shippers' Ass'n v. N. & W. R. Co. (22 I. C. C. 519), 244. Bluetields S. S. Co. v. United Fruit Co. (243 Fed. 1, 155 C. C. A. 531;, 492. Blume V. Wells, Fargo & Co. (15 I. C. C. 53), 205, 209, 383, 406. Board of Bristol, Tenn. v. Virginia & S. W. Ry. Co. (15 I. C. C. 453;, 93, 486. Board of Trade of Carrollton v. Central of Ga. Ry. Co. (28 I. C. C. 154), 102, 108, 183, 346. Board of Trade of Chattanooga v. East Tenn., Va. & Ga. Ry. Co. (5 L C. C. 546, 2 I. C. R. 798, 3 L C. R. 106, 4 I. C. R. 213), 339, 348. V Board of Trade of Chicago v. Chicago & A. R. Co. (4 L C. C. 158, 3 I. C. R. 233), 147, 346. Board of Trade of Chicago v. A. T. & S. F. R. Co. (29 I. C. C. 438, 253. 40 Table of Cases Cited, [References are to Sections.] Board of Trade of Chicago v. C. & A. R. Co. (27 I. C. C. 530), 146, 339, 345, 346. Board of Trade of Chicago v. Christie Grain & Stock Co. (121 Fed. 608. 2 Fed. Anti-Trust Dec. 233), 486. Board of Trade of Chicago v. Christie Grain Co. (198 U. S. 236, 49 L. Ed. 1031, 25 Sup. Ct. 637, 2 Fed. Anti-Trust Dec. 717), 486. Board of Trade of Dawson v. Central of Ga. Ry. Co. (8 1. C. C. 142), 108. Board of Trade of Hampton v. Nashville, C. & St. L. R. Co. (8 I. C. C. 503), 108, 339, 346, 348. Board of Trade of Kansas City v. St. Louis & S. F. R. Co. (32 I. C. C. 297), 118. Board of Trade of Lynchburg v. Old Dominion S. S. Co. (6 L C. C. 6a2), 348, 383. Board of Trade of New York v. Penn. R. Co. (4 L C. C. 447, 2 L C. R. 660, 734, 755, 800, 3 L C. R. 417), 339, 345, 358. Board of Trade of Troy v. Alabama M. R. Co. (6 I. C. C. 1, 4 I. C. R. 348), 339, 348. Boards of Trade Union v. Chicago, etc., R. Co. (1 I. C. C. 215, 1 I. C. R. 608), 346. Bobbs-Merrill Co. v. Straus (139 Fed. 155, 2 Fed. Anti-Trust Dec. 755), 486. Bobbs-Merrill Co. v. Straus (147 Fed. 15, 77 C. C. A. 607, 15 L. R. A. 766), 486. Bobbs-Merrill Co. v. Straus (210 U. S. 339, 52 L. Ed. 1086, 28 Sup. Ct. 722), 486. Bonney v. Cumberland-Ely Coffee Co. (183 Fed. 650), 486. Bonvillian v. American Sugar Refining Co. (250 Fed. 641), 492. Booth & Co. V. Davis (127 Fed. 875, 2 Fed. Anti-Trust Dec. 318), 486. Boston & A. R. Co. v. Boston & L. R. Co. (1 I. C. C. 158, 1 I. C. R. 500, 571), 153, 199, 348, 392. Boston & Maine Boat Lines (40 L C. C. 565), 3-54. Boston & M. R. Co. v. Hooker 233 U. S. 97, 58 L.| Ed. 868, 34 Sup. Ct. 526), 34, 358, 439. Boston & Maine R. Co. v. Piper (246 U. S. 439, 62 L. Ed. 820, 38 Sup. Ct. 354), 358, 440. Boston Chamber of Commerce v. Lake Shore & M. S. R. Co. (1 I. C. C. 436, 1 I. C. R. 754), 3. Boston Fruit & Produce Exchange v. New York & N. E. R. Co. (5 I. C. C. 1. 3 I. C. R. 604), 335, 339. Boston Fruit & Produce Exchange v. New York & N. E. R. Co. (4 L C.C. 664, 3 I. C. R. 493), 335, 339. Table of Cases Cited. 41 [References are to Sections.] Boston (Ga.) v. A. C. L. R. Co. (24 I. C. C. 50), 108, 346, 348. Boston Store v. American Graphophone Co. (246 U. S. 8, 62 L. Ed. 551, 38 Sup. Ct. 258), 486, 497. Bowling Green Bus. Men's Asso. v. L. & N. R. Co. (24 I. C. C. 228), 244, 348. Bowling Green Bus. Men's Asso. v. L. & N. R. Co. (31 I. C. C. 1), 194. Bowling Green Bus. Men's Asso. v. L. & N. R. Co. (31 I. C. C. 301), 375. Bowman v. Ciiicago & N. W. R. Co. (125 U. S. 465, 31 L. Ed. 700, 8 Sup. Ct. 689), 58. Boyle V. St. L. & S. F. R. Co. (222 Fed. 539, P. U. R. 1916A 49), 47. Boyle V. St. L. & S. F. R. Co. (222 Fed. 539), 4, 49. Boyle V. United States (259 Fed. 803, — CCA.—), 486. Bracey v. Darst (218 Fed. 482), 58. Brady v. Penn. R. Co. (4 I. C R. 283), 416. Brady v. Penn. R. Co. (2 I. C C 131, 2 I. C R. 78), 339. Brass v. North Dakota ex rel. Stoesser (153 U. S. 391, 38 L. Ed. 757, 4 I. C R. 670, 14 Sup. Ct. 857), 45. Breechbill v. Randall (102 Ind. 528, 52 Am. Rep. 695, 1 N. E. 362), 45. Brenner Lumber Co. v. M. L. & T. R. Co. (34 I. C C 630), 383. Brewer v. Central of Ga. Ry. Co. (84 Fed. 258), 153, 199, 346, 348. Brick from New Hampshire (42 I. C C. 231), 207. Brig Aurora, The (7 Cranch. 11 U. S. 382, 3 L. Ed. 378), 54. Brodnax v. Missouri (219 U. S. 285, 55 L. Ed. 219, 31 Sup. Ct. 238), 57. Brooklyn Heights R. Co. v. Straus (245 Fed. 132), 45. Brook-Rauch Mill & Elevator Co. v. M. & P. Ry. Co. (17 I. C C 158), 139, 346. Brook-Rauch Mill & Elevator Co. v. St. L. & I. M. Ry. Co. (21 1. C C. 651), 337, 400. Brooks Coal Co. v. Wabash Ry. Co. (39 I. C C. 426), 208. Brown & Sons Lumber Co. v. L. & N. R. Co. (37 I. C C 507), 204, 360. Brown Drug Co. v. United States (235 Fed. 603), 319. Brown v. Clayton (12 Ga. 564), 55. Brown v. Denver Omnibus & Cab Co. (254 Fed. 560), 486. Brown v. Walker (161 U. S. 591, 40 L. Ed. 918, 16 Sup. Ct. 644), 299. Bruner Co. v. S. Ry. Co. (40 I. C C. 549), 400. Bryant Lumber Co. v. Fourche River Lumber Co. (97 Ark. 623, 135 S. W. 796), 371. Brymer v. Butler Water Co. (179 Pa. St. 331, 36 Atl. 249), 46. (Book 2). Buchanan v. N. P. R. Co. (5 I. C C 7, 3 I. C. R. 655), 8?, 42 Table of Cases Cited. [References are to Sections.] Buckeye Buggy Co. v. Cleveland, etc., R. Co. (9 I. C. C. 620), 331), 345, 385. xiuckeye Powder Co. v. Dupont De Nemours Powder Co. (248 U. S. 55, 63 L. Ed. — , 39 Sup. Ct. 38), 492, 499. Buckeye Powder Co. v. Du Pont Nemours (196 Fed. 514, 223 Fed. 887), 492, 499. Buck Stove Co. v. Vickers (226 U. S. 205, 57 L. Ed. 189, 33 Sup. Ct. 41), 8. Budd v. New York (143 U. S. 517, 36 L. Ed. 247, 4 I. C. R. 45, 12 Sup. Ct. 468), 43, 45. Buffalo R. & P. R. Co. Operation Car Ferry (34 I. C. C. 52), 354. Buffalo R. & P. R. Co. v. ?. R. Co. (29 I. C. C. 114), 347. Buffalo Union Furnace Co. v .L. S. & M. S. Ry. Co. (44 I. C. C. 267), 208. Buffalo Union Furnace Co. v. L. S. & M. S. Ry. Co. (21 I. C. C. 620), 149, 346. Bulah Coal Co. v. P. R. Co. (20 I. C. C. 52), 175, 208. Bulte Milling Co. v. C. & A. R. Co. (15 I. C. C. 351), 91, 99. Burdick v. People (149 111. 600, 36 N. E. 948, 24 L. R. A. 152, 41 Am. St. Rep. 329), 37. Buren v. S. P. Co. (26 I. C. C. 332), 358. Burgess v. Transcontinental Freight Bureau (13 I. C. C. 668), 96, 212, 346, 383. Burleson v. Dempey (250 U. S. 191, 63 L. Ed. 929, 39 Sup. Ct. 511), 335. Burlington, C. R. & N. Ry. Co. v. Northwestern Fuel Co. (31 Fed. 652), 156, 345. Burnham-Hanna-Munger Dry Goods Co. v. Chicago R. & P. R. Co. (14 I. C. C. 299), 109, 117, 207, 222, 339. Burnett v. Spokane, P. & S. Co. (210 Fed. 94), 332. Burritt Co. v. C. P. Ry. Co. (45 I. C. C. 195), 169. Burrows v. Interborough Met. Co. (156 Fed. 389), 487. Burson Knitting Co. v. C. M. & G. R. Co. (42 I. C. C. 739), 253. Burton Stock Car Co. v. Chicago, B. & Q. R. Co. (1 I. C. C. 132, 1 I. C. R. 329), 337, 345, 347. Business Men's Asso. v. Chicago & X. W. Ry. Co. (2 I. C. C. 73, 2 I. C. R. 48), 99, 110. Business Men's Asso. v. Chicago, St. P., M. & O. R. Co. (2 I. C. C. 52, 2 I. C. R. 41), 99, 105, 138, 339, 345. Business Men's League of St. Louis v. Atchison, T. & S. F. Ry. Co. (9 I. C. C. 318j, 95, 114, 156, 339, 346, 348. Business Men's League, St. Louis, v. A. T. & S. F. Ry. Co. (41 I. C. C. 13, 503, 44 I. C. C. 308, 49 I. C. C. 713), 44. Butchers' etc.. Stock Yards Co. v. Louisville & N. R. Co. (67 Fed. 35, 14 C. C. A. 290), 197, 346. Table of Cases Cited. 4.3 [References are to Sections.] Butfield V. Stranahan (192 U. S. 470, 48 L. Ed. 525, 24 Sup. Ct. 349), 54. B. V. D. Co. V. Isaac (257 Fed. 709), 486. C. Cadillac Lumber Ex. v. A. A. R. Co. (43 I. C. C. 636), 181. Cairo Board of Trade v. C. C. C. & St. L. Ry. Co. (46 I. C. C. S43), 163, 254. Caldwell Co. v. C. I. & L. Ry. Co. (20 I. C. C. 412), 90. Caldwell v. Sioux Falls Stock Yards (242 U. S. 559, 61 L. Ed. 493, 37 Sup. Ct. 224), 58. ralhoun v. Seattle (215 Fed. 226), 453. California Com. Asso. v. Wells- Fargo Ex. Co. (14 I. C. C. 422), 156, 157, 345, 383. California Com. Asso. v. Wells-Fargo Ex. Co. (16 I. C. C. 458), 383. California Com. Asso. v. Wells-Fargo Ex. Co. (21 I. C. C. 300), 345. California Corrugated Culvert Co. v. A. G. S. Ry. Co. (38 I. C. C. 568), 208. California Pole & Piling Co. v. S. P. Co. (27 I. C. C. 670), 146. Calloway v. Louisville & N. R. Co. (7 I. C. C. 431), 346, 348. Camden Iron Works v. United States (158 Fed. 561, 85 C C. A. 585), 371. Caminetti v. United States (242 U. S. 470, 61 L. Ed. 442, 37 Sup. 192), 2. Camors-McConnell Co. v. McConnell (140 Fed. 412, 2 Fed. Anti-Trust Dec. 817), 486. Campbell v. Northern R. W. Co. (26 Gr. 522), 352. Campbell's Creek Coal Co. v. A. A. R. R. Co. (29 I. C. C. 682), 338, 343. Canada Atlantic Transp. Co. v. Chicago (210 Fed. 7, 126 C. C. A. 587), 55. Canada S. Ry. Co. v. International Bridge Co. (8 App. Cas. 731), 126. Cannon v. Mobile & Ohio R. Co. (11 I. C. C. 537), 110, 339, 345, 346. Cannon Falls Elevator Co. v. Chicago, etc., R. Co. (10 I. C. C. 650), 164, 345, 346. Cape Girardeau Commercial Club v. 111. C. R. Co. (51 I. C. C. 105), 101. Capeheart v. Louisville & N. R. Co. (4 I. C. C. 265, 3 I. C. R. 278), 335, 338, 347. Capital City Gas Co. v. Central V. R. Co. (11 I. C. C. 104), 139, 345. Capital City Oil Co. v. Y. & M. V. R. Co. (39 I. C. C 141), 99a. Cardiff Coal Co. v. Chicago, M. & St. P. Ry. Co. (13 I. C. C. 460), 145, 195, 338, 347. Cardwell v. Am. Bridge Co. (113 U. S. 205, 28 L. Ed. 959, 5 Sup. Ct. 423), 54. 44 Table of Cases Cited. [References are to Sections.] Carey .Mfg. Co. v. G. T. W. Ry. Co. (3.6 I. C. C. 203), 65. Carey v. So. Dak. (250 U. S. — , 63 L. Ed. — , 39 Sup. Ct. — ), 58. Car Ferry Allowance (32 I. C. C. 578), 171, 193. Carl V. K. C. S. R. Co. (91 Ark. 97, 121 S. W. 932, 134 Am. St. 56), 439. Carlisle v. Mo. Pac. R. Co. (168 Mo. 656, 68 S. W. 898), 405. Carlowitz v. C. P. R. Co. (46 I. C. C. 290), 65. Carnegie Board of Trade v. ?. R. Co. (28 I. C. C. 122), 442. Carolina Portland Cement Co. v. C. & O. R. Co. (21 I. C. C. 533), 213. Car Peddling Case (45 I. C. C. 494), 337. Carr v. Northern Pac. R. Co. (9 I. C. C. 1), 116, 345, 358. Carstens Packing Co. v. O. S. L. R. Co. (17 I. C. C. 125, 324), 159, 205, 206, 348. Carter v. New Orleans & N. E. R. Co. (143 Fed. 99, 74 C. C. A, 293), 218, 383. Carter-Crume Co. v. Peurrung (86 Fed. 439, 30 C. C. A. 174, 1 Fed. Anti-Trust Dec. 844), 486. Carter-White Lead Co. v. N. & W. R. Co. (21 I. C. C. 41), 89. Car Spotting Charges (34 I. C. C. 609), 140, 143, 193. Gary v. Eureka Springs Ry. Co. (7 I. C. C. 286), 335, 345, 395. Casket Mfgrs. Asso. v. B. & O. R. R. Co. (49 I. C. C. 327), 81. Cassatt V. Mitchell Coal & Coke Co. (150 Fed. 32, 10 L. R. A., N. S., 99, 81 C. C. A. 80), 335. Cator V. Southern Pac. Co. (6 I. C. C. 113, 4 I. C. R. 397), 345. Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co. (10 L C. C. 83), 218, 383, 392, 406, 408, 416. Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co. (11 L C. C. 277), 9, 80, 129, 197, 383. Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co. (12 I. C. C. 6), 80. 263, 392, 416. Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co. (12 I. C. C. 507), 80, 392, 416. Cattel Raisers' Asso. v. Ft. Worth & D. R. Co. (7 I. C. C. 555a), 335, 337, 345, 346, 416. Cattle Raisers' Asso. of Texas v. Fort Worth & D. C. R. Co. (7 L C. C. 513), 335, 345, 346. Cattle Raisers' Asso. of Texas v. Galveston, H. & S. A. R. Co. (12 L C. C. 20), 338. Cattle Raisers' Asso. v. Missouri, Kansas & Tex. R. Co. (11 I. C. C. 296, 13 I. C. C. 418), 339, 383, 486. Cattle Raisers' Asso. v. Missouri, Kan. & Tex. Ry. Co. (12 L C. C. 1), 392, 395, 416. Table of Cases Cited. 45 [References are to Sections.] Cavanaugh Bros. v. C. R. I. & P. R. Co. (75 N. H. 243, 72 Atl. 694), 42. Cedar Hill Coal & Coke Co. v. Colorado & Southern R. Co. (14 I. C. C. C. 606, 16 I. C. C. 387, 179 C. C. A. 479), 49, 195, 383. Cedar Hill Coal & Coke Co. v. Colorado & Southern R. Co. (17 T. C. C. 479), 195. Cedar Rapids Gas. Co. v. Cedar Rapids (223 U. S. 655, 56 L. Ed. 594, 32 Sup. Ct. 389), 47. Cement Rates from Mason City (30 I. C. C. 426), 121, 401. Central Coal & Coke Co. v. Hartman (111 Fed. 96, 49 C. C. A. 244, 2 Fed. Anti-Trust Dec. 94), 492. Central Com. Co. v. L. & N. R. Co. (27 I. C. C. 114), 395. Central of Ga. R. Co. v. Augusta Brokerage Co. (122 Ga. 046, 50 S. E. 473, 69 L. R. A. 119), 37, 3-8. Cent, of Ga. R. Co. v. Blount (238 Fed. 292), 345. Central of Ga. Ry. Co. v. City Mills Co. (128 Ga. 841, 58 S. E. 197), 295. Central of Ga. Ry. Co. v. Evans (133 Ga. 639, 66 S. E. 788), 42. Central of Ga. Ry. Co. v. McLendon, et al. (157 Fed. 961), 50, 60. Central of Ga. Ry. Co. v. Murphey (116 Ga. 863, 43 S. E. 265, 60 L. R. A. 817), 32. Central of Ga. Ry. Co. v. Murphey (196 U. S. 194, 49 L. Ed. 444, 25 Sup. Ct. 218), 32. Central of Ga. R. Co. v. R. R. Com. of Ala. (209 Fed. 75), 43, 45. Central of Ga. Ry. Co. v. R. R. Com. of Ga. (215 Fed. 421), 45. Central of Ga. Ry. Co. v. State (104 Ga. 831, 31 S. E. 531). 9. Central of Ga. R. Co. v. Yesbik (146 Ga. 769), 34a, 295, 440. Central of N. J. R. Co. v. Hite (166 Fed. 976), 297. Central P. R. Co. v. Gallatin (99 U. S. 9 Otto 727, 25 L. Ed. 504), 3. Central R. Co. of N. J. v. United States (229 Fed. 501, 143 C. C. A. 569), 371, 404. Central Stock Yards Co. v. Louisville & N. R. Co. (112 Fed. 823), 383, 406. Central Stock Yards Co. v. Louisville & N. R. Co. (118 Fed. 113, 55 C. C. A. 63, 63 L. R. A. 213), 12, 14, 197, 347, 406. Central Stock Yards Co. v. Louisville & N. R. Co. (192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. 339), 14, 17, 197, 304, 347. Central Trust Co. v. P., etc., R. Co. (101 N. Y. Supp 837, 114 A pp. Div. 907), 343, 492. Central Vermont Boat Lines (40 I. C. C. 589), 354. Central Yellow Pine Asso. v. Hlinois Cent. R. Co. (10 I. C. C. 505), 85, 90, 92, 100, 102, 207, 339, 345, 346, 395, 486. Central Yellow Pine Asso. v. Vicksburg, S. & P. R. Co. (10 I. C. C. 193), 163, 170, 345, 358. 46 Table of Cases Cited. [References are to Sections.] Chamber of Commerce of Ashburn v. G. S. & F. R. Co. (23 I. C. C. 140), 145. Chamber of Commerce of Chattanooga v. Southern Ry. Co. (10 I. C. C. Ill), 348. Chamber of Commerce Johnson City v. S. Ry. Co. (4G I. C. C. 527), 99, 346. Chamber of Commerce of Milwaukee v. Chicago, M. & St. P. R. Co. (7 I. C. C. 481), 34G. Chamber of Commerce of Milwaukee v. Flint & P. M. R. Co. (2 1. C. C. 553, 1 I. C. R. 774, 792, 2 I. C. R. 393), 345. Chamber of Commerce of Newport News v. S. R. Co. (23 I. C. C. 345), 95, 222. Chamber of Commerce of New York v. N. Y. C. & H. R. Co. (24 1. C. C. 55), 401. Champion v. Ames (188 U. S. 321, 47 L. Ed. 492, 23 Sup. Ct. 321). 2, 58. Chappell V. United States (160 U. S. 499, 40 L. Ed. 510, 16 Sup. Ct. 397), 7. Charleston & Norfolk Steamship Co. Case (40 I. C. C. 382, 47 I. C. C. 365). Charleston & W. S. C. R. Co. v. Varnville Furniture Co. (237 U. S. 597, 59 L. Ed. 1137, 35 Sup. Ct. 715, 98 S. C. 63, 79 S. E. 700), 34, 35. Chattanooga Packet Co. v. I. C. R. Co. (33 I. C. C. 384), 375. Cheese Dealers Asso. Co. v. A. T. & S. F. Ry. Co. (40 I. C. C. 1), 80a. Cheney Bros. Co. v. Massachusetts (246 U. S. 147, 62 L. Ed. 632, 38 Sup. Ct. 295), 59. Cherokee Lumber Co. v. A. C. L. R. Co. (27 I. C. C. 438), 98. Cherokee Nation v. Sou. Kansas Ry. Co. (135 U. S. 641, 34 L. Ed. 295, 10 Sup. Ct. 965), 7. Chesapeake & 0. C. & C. Co. v. Toledo & O. C. Ry. Co. (245 Fed. 917), 297. Chesapeake & Ohio Fuel Co. v. United States (115 Fed. 610, 53 C. C. A. 256, 2 Fed. Anti-Trust Dec. 151), 486. Chesapeake & 0. R. Co. v. Conley (230 U. S. 513, 57 L. Ed. 1597, 33 Sup. Ct. 985), 45, 84. Chesapeake & Ohio R. Co. v. Int. Com. Com. (200 U. S. 361, 50 L. Ed. 515, 26 Sup. Ct. 272), 345. Chesapeake & Ohio R. Co. v. Kentucky (179 U. S. 388. 45 L. Ed. 244, 21 Sup. Ct. 101), 29. Chesterton & W. R. Co. v. Comrs. (1 Ohio St. 77), 54. Chicago & Alton R. Co. v. Int. Com. Com. (173 Fed. 930), 309, 346, 395. Chicago & Alton R. Co. v. Kirby (225 U. S. 155, 56 L. Ed. 1033, 32 Sup. Ct. 648), 346, 358, 371. Table of Cases Cited. 47 [References are to Sections.] Chicago & Alton R. Co. v. New York, L. E. & W. R. Co. (24 Fed. 516), 304. Chicago & Alton R. Co. v. Penn. Co. (1 I. C. C. 8G, 1 I. C. R. 357), 338, 347. Chicago & Alton R. Co. v. United States (156 Fed. 558, 84 C. C. A. 324), 358. Chicago & E. I. R. Co. v. Collins Produce Co. (235 Fed. 857, 149 C. C. A. 169, 249 U. S. 186, 63 L. Ed. — , 39 Sup. Ct. 189), 440. Chicago & G. T. R. Co. v. Wellnian (143 U. S. 339, 36 L. Ed. 176, 12 Sup. Ct. 400), 45. Chicago & Mil. Elec. Ry. Co. v. 111. Cent. R. Co. (13 I. C. C. 20), 335, 338, 400. Chicago & N. W. R. Co. v. Forest Co. (95 Wis. 80, 70 N. W. 77), 42. Chicago & North W. R. Co. v. Junod (52 Fed. 912, 3 C. C. A. 347), 383. Chicago & N. W. Ry. Co. v. Ochs (250 U. S. — , 63 L. Ed. — , 39 Sup. Ct. — ), 12. Chicago & North W. R. Co. v. Osborne (52 Fed. 912, 3 C. C. A. 347), 348, 383. Chicago & North W. R. Co. v. Osborne (146 U. S. 364, 36 L. Ed. 1002; 13 Sup. Ct. 281), 383, 389, 397. Chicago & N. W. R. Co. v. Smith (210 Fed. 632), 43, 45. Chicago & N. W. R. Co. v. Tectonius (262 Fed. 715), 346a. Chicago & N. W. Ry. Co. v. United States (246 U. S. 512, 62 L. Ed. 859, 38 Sup. Ct. 351, 234 Fed. 268, 272, 148 C. C. A. 170), 481, 483. Chicago & N. W. Ry. Co. v. Ziebarth (245 Fed. 334), 364. Chicago Board of Trade v. C. & A. R. Co. (4 I. C. C. 158), 91. Chicago, B. & Q. R. Co. v. Anderson (72 Neb. 586, 101 N. W. 1019), 52. Chicago, B. & Q. R. Co. v. Cram (228 U. S. 70, 57 L. Ed. 784, 33 Sup. Ct. 437), 20. Chicago, B. & Q. R. Co. v. Drainage Comrs. (200 U. S. 561, 50 L. Ed. 596, 26 Sup. Ct. 341), 54. Chicago, B. & Q. R. Co. v. Feintuch (191 Fed. 482, 112 C. C. A. 126), 207, 216, 317. Chicago, B. & Q. R. Co. v. Iowa (v. Cutts) (94 U. S. 155, 24 L. Ed. 94), 45. Chicago, B. & Q. R. Co. v. Kyle (228 U. S. 85, 57 L. Ed. 741, 33 Sup Ct. 440), 20. Chicago, B. & Q. R. Co. v. Miller (226 U. S. 513, 57 L. Ed. 323, 33 Sup. Ct. 155), 439. Chicago, B. & Q. R. Co. v. Nebraska (170 U. S. 57, 42 L. Ed. 948, 18 Sup. Ct. 513), 15. 48 Table of Cases Cited. I References are to Sections.] Chicago, B. & Q. R. Co. v. Oglesby (198 Fed. 153), 453. Chicago, B. & Q. R. Co. v. Railroad Com. of Wis. (237 U. S. 220, 59 L. Ed. 926, 35 Sup. Ct. 560), 19. Chicago, B & Q. R. Co. v. Railroad Com. of Wis. (237 U. S. 220, 59 L. Ed. 926, 35 Sup. Ct. 460, P. U. R. 1915C, 309). 20, 21. C. B. & Q. V. U. S. (157 Fed. 830, 85 C. C. A. 194), 67, 186, 335. Chicago, B. & Q. R. Co. v. United States (195 Fed. 241, 115 C. C A. 193), 481. Chicago, B. & Q. R. Co. v. U. S. (209 U. S. 90, 52 L. Ed. 698, 28 Sup. Ct. 439), 186, 371. Chicago Fire Proof, etc., Co. v. Chicago & N. W. R Co. (8 I. C. C. 316), 340, 348. Chicago, I. & L. R. Co. v. Hackett (228 U. S. 559, 57 L. Ed. 966, 33 Sup. Ct. 581), 33. Chicago, I. & L. R. Co. v. R. R. Com. of Ind. (175 Ind. 630, 85 N. E. 364), 14. Chicago, I. & L. R. Co. v. United States (219 U. S. 486 55 L. Ed. 305, 31 Sup. Ct. 272), 38. 303, 358. Chicago, K. & W. R. Co. v. Pontius (157 U. S. 209, 39 L. Ed. 675, 15 Sup. Ct. 585), 12, 33, 332. Chicago Live Stock Ex. v. Chicago G. W. R. Co. (10 I. C. C. 428), 91, 128, 339, 346. Chicago,. M. & St. P. R. Co. v. Ackley (94 U. S. 179, 24 L. Ed. 99), 45. Chicago, M. & St. P. R. Co. v. Becker (32 Fed. 849, 35 Fed. 883, 10, 335. Chicago, M. & St. P. Ry. Co. v. Geo. A. Hormel & Co. (240 Fed. 381, 153 C. C. A. 307), 394. Chicago, M. & St. P. R. Co. v. Iowa (152 Iowa 317, 130 N. W. 802). Chicago, M. & St. P. R. Co. v. Iowa (145 U. S. 632, 36 L. Ed. 857, 12 Sup. Ct. 978). 335. Chicago, M. & St. P. R. Co. v. Iowa (233 U. S. 334, 58 L. Ed. 988. 34 Sup. Ct. 592), 41, 68, 296, 335. Chicago, M. & St. P. R. Co. v. Kennedy (232 U. S. 626, 58 L. Ed. 762, 34 Sup. Ct. 463, 28 S. D. 94, 132 N. W. 802), 35. Chicago, M. & St. P. R. Co. v. Keyes (91 Fed. 47), 49. Chicago, M. & St. P. R. Co. v. Minneapolis (232 U. S. 430. 58 L. Ed. 671, 34 Sup. Ct. 400, 115 Minn. 400, 133 N. W. 169, Ann. Cas. 1912 D. 1027). 15. 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), 45, 60, 63. 339. Chicago, M. & St. P. R. Co. v. Polt (232 U. S. 165, 58 L. Ed. 554, 34 Sup. Ct. 301, 26 S. D. 378, 128 N. W. 472), 35. Table of Cases Cited. 49 [References are to Sections.] Chicago, M. & St. P. Ry. Co. v. Public Util. Com. 111. (242 U. S. 33:i, 61 L. Ed. 341, 37 Sup. Ct. 173), 45. Chicago, M. & St. P. R. Co. v. Solan (160 U. S. 133, 42 L. Ed. 688, 18 Sup. Ct. 289), 32. Chicago, M. & St. P. R. Co. v. Tompkins (176 U. S. 167. 44 L. Ed. 417, 20 Sup. Ct. 336), 45, 49. Chicago, R. I. & P. R. Co. v. Arkansas (86 Ark. 412, 111 S. W. 456, 219 U. S. 453, 55 L. Ed. 290, 31 Sup. Ct. 275), 22. Chicago, R. I. & P. R. Co. v. Chicago & A. R. Co. (3 I. C. C. 450, 2 I. C. R. 581, 721), 345. Chicago, R. I. & P. R. Co. v. Cramer (232 U. S. 490, 58 L. Ed. 697, 34 Sup. Ct. 383, 153 Iowa 103, 133 N. W. 387), 32, 439. Chicago, R. I. & P. R. Co. v. Hardwick Farmers' Elevator Co. (226 U. S. 426, 57 L. Ed. 284, 33 Sup. Ct. 174), 3, 4, 9, 25, 68. Chicago, R. I. & P. R. Co. v. Hubbell (54 Kan. 232, 38 Pac. 266, 5 I. C. R. 241), 180, 212. Chicago, R. I. & P. R. Co. v. Int. Com. Com. (171 Fed. 680), 107, 207, 222, 395, 462, 465. Chicago, R. I. & P. R. Co. v. Ketchum (212 Fed. 986), 38. Chicago, R. I. & P. R. Co. v. Lena Lumber Co. (99 Ark. 105, 137 S. W. 562), 297. Chicago, R. I. & ?. R. Co. v. Maucher (248 U. S. 359, 63 L. Ed. — , 39 Sup. Ct. — ), 295, 440. Chicago, R. I. & P. R. Co. v. Railroad Com. of Ind. (175 Ind. 630, 95 N. E. 364), 13. Chicago, R. I. & P. R. Co. v. R. R. Com. of Neb. (85 Neb. 818, 124 N. W. 477), 49. Chicago, St. P., M. & O. R. Co. v. Latta (226 U. S. 519, 57 L. Ed. 328, 33 Sup. Ct. 155, 184 Fed. 987, 106 C. C. A. 664), 439. Chicago, St. P., M. & O. R. Co. v. United States (162 Fed. 835), 358, 371. Chicago Sash & Door Asso. v. Norfolk & W. R. Co. (14 I. C. C. 594), 348. Chicago, T. H. & S. Ry. Co. v. Anderson (242 U. S. 283, 61 L. Ed. 302, 37 Sup. Ct. 124), 15. Chicago Union Traction Co. v. Chicago (199 111. 579, 65 N. E. 470), 49. Chicago Wall Paper Mills v. General Paper Co. (147 Fed. 491. 78 C. C. A. 607, 2 Fed. Anti-Trust Dec. 1027), 486. Chicago Wool Co. v. C. M. & St. P. Ry. Co. (40 I. C. C. 101), 114, 156. Chiles V. Chesapeake & O. R. Co. (218 U. S. 71, 54 L. Ed. 936, 30 Sup. Ct. 067), 29. Chin Yow v. United States (208 U. S. 8, 52 L. Ed. 369, 28 Sup. Ct. 201), 316. 50 Table of Cases Cited. r References are to Sections.] China & Japan Trading Co. v. Georgia R. Co. (12 I. C. C. 236), 93, 339, 346, 486. Christie Grain & Stock Co. v. Board of Trade of Chicago (125 Fed. 161, 61 C. C. A. 11), 486. Cilley V. United Shoe Mach. Co. (152 Fed. 726). 492. Cilley V. United Shoe Mach. Co. (202 Fed. 598), 492. Cincinnati v. Louisville & N. R. Co. (223 U. S. 390. 56 L. Ed. 481, 32 Sup. Ct. 267), 7. Cincinnati & C. T. Co. v. B. & O. R. Co. (20 I. C. C, 486), 191, 222, 400, 401. Cincinnati, Freight Bureau of, v. Cincinnati, N. 0. & T. P. Ry. Co. (6 I. C. C. 195, 4 I. C. R. 592). 110. Cincinnati, H. & D. R. Co. v. Int. Com. Com. (206 U. S. 142, 51 L. Ed. 995, 27 Sup. Ct. 648), 162, 312, 317, 345, 394, 395, 406. Cincinnati, N. O. & 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), 389. Cincinnati, N. 0. & T. P. R. Co. v. Int. Com. Com. (162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700), 67, 128. 204, 312, 335, 339, 348, 389, 395. Cincinnati, N. O. & T. P. R. Co. v. Rankin (241 U. S. 319, 60 L. Ed. 1022, 36 Sup. Ct. 555), 440. Cincinnati Packet Co. v. Catlettsburg (105 U. S. 559, 26 L. Ed. 1169), 56. Cincinnati, P. B. S. & ?. P. Co. v. Bay (200 U. S. 179, 50 L. Ed. 428, 26 Sup. Ct. 208, 2 Fed. Anti-Trust Dec. 867), 69, 486. Cist V. Mich. Cent. R. Co. (10 I. C. C. 217), 335. 339. Citizens' Wholesale Supply Co. v. Snyder (201 Fed. 907), 486. City Gas Co. v. Baltimore & 0. R. Co. (11 I. C. C. 371), 345, 346. City of Atchison v. Mo. Pac. Ry. Co. (12 I. C. C. 254), 416. City of Danville v. Southern Ry. Co. (8 I. C. C. 571), 416. City of Spokane v. Nor. Pac. Ry. Co. (15 I. C. C. 376), 339. Claflin v. Houseman (93 U. S. 3 Otto. 130, 23 L. Ed. 833), 292. Clark & Co. v. Buffalo & S. R. Co. (18 I. C. C. 380), 40. Clark Bros. Coal Mining Co. v. Penn. R. Co. (238 Fed. 642), 317. Clark Co. (Fred G.) v. Lake Shore & M. S. Ry. Co. (11 I. C. C. 558), 397. Clark, James, Distilling Co. v. W. M. R. Co. (242 U. S. 311, 61 L. Ed. 326, 37 Sup. Ct. 180), 58. Clark V. So. Ry. Co. (119 N. E. 539), 440. Clarke (Rowena) v. Central R. & Bkg. Co. of Ga. (50 Fed. 338, 15 L. R. A. 683, 1 Fed. Anti-Trust Dec. 17), 486. Classification— Western No. 51— Suspension of (25 I. C. C. 442), 113. See also Western Classification. Table of Cases Cited. 51 [References are to Sections.] Class Rates between Stations in La. (S3 I. C. C. 302), 259, 398. Clegg V. St. L. & S. P. R. Co. (203 Fed. 971, 122 C. C. A. 273), 358. Clement v. Louisville v. N. R. Co. (153 Fed. 979), 383. Cleveland. C. C. & St. L. R. Co. v. Dettlebach (239 U. S. 588, 60 L. Ed. 453, 36 Sup. Ct. 177), 440. Cleveland, C. C. & St. L. R. Co. v. Hirsch (204 Fed. 849, 123 C. C. A. 145), 346, 358. Cleveland, C. C. & St. L. R. Co. v. Illinois (177 U. S. 514, 44 L. Ed. 868, 20 Sup. Ct. 722), 20. Clyde Coal Co. v. Penn. R. Co. (23 I. C. C. 135), 107. Coal Rates from Oak Hills, Colo. (30 I. C. C. 505), 395, 398. Coal Rates from Oak Hills, Colo. (35 I. C. C. 193), 117, 397. Coal Rates from Virginia (30 I. C. C. 635), 85. Coal Rates Stony Fork Branch (26 I. C. C. 168), 439. Coca-Cola Co. v. Butler & Sons (229 Fed. 224), 486. Coca-Cola Co. v. Deacon-Brown Bottling Co. (200 Fed. 105), 486. Coca-Cola Co. v. Gay-Ola Co. (200 Fed. 720), 486. Coe'v. Errol (116 U. S. 517, 29 L. Ed. 715, 6 Sup. Ct. 475), 41, 68, 303, 304, 335. Coe V. Louisville & N. R. Co. (3 Fed. 775), 304, 305. Coffey ville Commercial Club v. A. T. & S. F. R. Co. (33 I. C. O. 122, 34 I. C. C. 231), 183. Coffeyville Vitrified Brick & Tile Co. v. St. Louis & S. F. R. Co. (12 I. C. C. 498), 117, 329, 392. Coke Producers' Asso. v. B. & O. R. Co. (27 I. C. C. 125), 87, 345. Coles V. Cent. R. & B. Co. (86 Ga. 251, 12 S. E. 749), 14, 17. Cole Motor Car Co. v. Hurst (228 Fed. 280), 486. College Arms Hotel Co. v. Atlantic C. L. R. Co. (61 Fla. 553, 54 So. 459), 9. Collins V. Kentucky (234 U. S. 034, 58 L. Ed. 1510, 34 Sup. Ct. 924, 141 Ky. 564, 133 S. W. 233), 486. Colonial Nav. Co. v. N. Y. N. H. & H. R. Co. (50 I. C. C. 625), 375. Colorado Coal Traffic Asso. v. C. & S. R. Co. (19 I. C. C. 478), 350. Colorado Free Pass. Situation (26 I. C. C. 491), 342, 442. Colorado Fuel & Iron Co. v. So. Pac. R. Co. (6 I. C. C. 488), 88, 90, 339, 346, S58, 363. Columbia Grocery Co. v. Louisville & N. R. Co. (18 I. C. C. 502), 108, 183. Commercial Cable Co. v. West. Union Tel. Co. (45 I. C. C. 33), 340. Commercial Club of Duluth v. B. & O. R. Co. (27 I. C. C. 639), 108, 183. 52 Table of Cases Cited. [References are to Sections.] Commercial Club of Mitchell, S. Dak. v. A. & W. Ry. Co. (46 I. C. C. 1, 48 I. C. C. 40), 99, 116, 147. Commercial Club of Omaha v. A. & S. R. Co. (27 I. C. C. 302), 207, 211, 213, 404. Commercial Club of Omaha v. Chicago & N. W. Ry. Co. (7 I. C. C. 386), 339, 346. Commercial Club of Omaha v. Chicago, R. I. & P. Ry. Co. (6 T. C. C. 647), 253, 338. Commercial Club of Omaha v. S. P. Co. (20 I. C. C. 631), 105, 119. Commercial Coal Co. v. B. & 0. R. Co. (15 I. C. C. 11), 101, 104. Commercial Milling Co. v. Western Union Tel. Co. (151 Mich. 425, 115 N. W. 698), 2. Commodity Rates to Pacific Coast Terminals (32 I. C. C. 611), 118. Commodity Rates between Mo. River Points (28 I. C. C. 265), 399. Commonwealth v. A. C. L. R. Co. (106 Va. 61, 55 S. E. 572, 7 L. R. A. (N. S.) 1086, 117 Am. St. Rep. 983), 424. Commonwealth v. Interstate R. Co. (187 Mass. 436, 73 N. E. 530), 185. Commonwealth v. Keary (198 Pa. St. 500, 48 Atl. 472), 37. Commonwealth v. Norfolk v. W. R. Co. (Ill Va. 59, 68 S. E. 351), 13. Commutation Rate Case (21 I. C. C. 428), 185, 345, 389, 395, 442. Commutation Tickets to School Children (17 I. C. C. 144), 185, 345. Compagnie Prancaise v. Board of Health (186 U. S. 380, 46 L. Ed. 1209, 22 Sup. Ct. 811), 58. Compton V. Allen (216 Fed. 537), 58. Concentration of Cotton (26 I. C. C. 585), 403. Concord & M. R. Co. v. Boston & M. R. Co. (68 N. H. 464, 41 Atl. 263), 9. Connery v. Q. 0. & K. C. R. Co. (92 Minn. 20, 99 N. W. 365), 42. Connolly v. Union Sewer Pipe Co. (184 U. S. 540, 46 L. Ed. 679, 22 Sup. Ct. 431, 2 Fed. Anti-Trust Dec. 118), 486. Connor v. Vicksburg & M. R. Co. (36 Fed. 273, 1 L. R. A. 331), 294, 383. Consolidated Classification Case (54 I. C. C. 1), 114, 156, 161. Consolidated Forwarding Co. v. Southern Pac. Co. (9 I. C. C. 182), 197, 338, 352, 358. Consolidated Forwarding Co. v. Southern Pac. Co. (10 I. C. C. 590), 197, 352, 432. Consolidated Fuel Co. v. A. T. & S. F. R. Co. (27 I. C. C. 554), 343. Consolidated Pump Co. v. L. S. & M. S. R. Co. (27 I. C. C. 519), 243. Continental Securities Co. v. Interborough R. T. Co. (165 Fed. 945), 486. Continental Wall Paper Co. v. Lewis Voight & Sons Co. (212 U. S. 227, 53 L. Ed. 486, 29 Sup. Ct. 280), 486. Table of Cases Cited. 53 [References are to Sections.] Continental Wall Paper Co. v. Lewis Voight & Sons Co. (148 Fed. 939, 78 C. C. A. 567), 486. Control of Water Lines by Railroad Carriers (51 I. C. C. 436), 354. Cook V. Marshall County Iowa (196 U. S. 261, 49 L. Ed. 471, 25 Sup. Ct. 233), 58. Cooke V. Boston & L. R. Co. (133 Mass. 185), 54. Cooley V. Board of Wardens (12 How. 53 U. S. 299, 13 L. Ed. 996), 56. Coomes v. Chicago, St. P.. M. & O. Ry. Co. (13 I. C. C. 192), 383. Copp V. Louisville & N. R. Co. (43 La. Ann. 511, 9 So. 441, 3 1. C. R. 625, 46 Am. & Eng. R. Cases 634, 12 L. R. A. 725, 26 Am. St. Rep. 198), 383, 405. Corey v. Independent Ice Co. (207 Fed. 459), 492. Corn Belt Meat Producers' Asso. v. Chicago, M. & Q. R. Co. (14 L C. C. 376), 339. Corp. Com. v. A. T. & S. F. Ry. Co. (31 I. C. C. 532), 47. Corporation Com. of N. C. v. N. & W. R. Co. (19 I. C. C. 303), 183, 222. Corporation Com. of N. C. v. S. A. L. R. Co.- (161 N. C. 271, 76 H. E. 554), 9. Corporation Com. of Ok. v. A. T. & S. F. Ry. Co. (31 I. C. C. 532), 3* 6, 44, 62, 68, 259, 336, 398, 399. Corp. Com. of Va. v. C. & 0. Ry. Co. (40 I. C. C. 24), 339. Cosby V. Richmond Trans. Co. (23 I. C. C. 72), 346. Cosmopolitan Shipping Co. v. Hamburg-American Packet Co. et al. (13 I. C. C. 266), 335, 352. Cotting V. Godard (183 U. S. 79, 46 L. Ed. 92, 22 Sup. Ct. 30), 45. Cotton Concentration at Weeleetka (39 I. C. C. 181), 346. Cotton from New Orleans (49 I. C. C. 751), 399. Cotton Seed Products Co. v. St. L. & S. F. R. Co. (53 I. C C. 574), 80a. Council V. Western & A. R. Co. (1 I. C. C. 339, 1 I. C. R. 638), 216, 40b. Counselman v. Hitchcock (142 U. S. 547, 35 L. Ed. 1110, 12 Sup. Ct. 195), 299, 389. Covington, etc., Brdg. Co. v. Kentucky (154 U. S. 204, 38 L. Ed. 962. 14 Sup. Ct. 1087), 3, 5, 53. Covington & Lexington Turnpike Road Co. v. Sanford (164 IT. S. 578, 41 L. Ed. 560, 17 Sup. Ct. 198), 45, 49, 82, 88, 124, 125. Covington Stock Yards Co. v. Keith (139 U. S. 128, 35 L. Ed. 73, 11 Sup. Ct. 461), 41, 80a, 197. Cowan & Bond (39 Fed. 54), 345. Coxe Bros. & Co. v. Lehigh V. R. Co. (4 I. C. C. 535, 2 I. C. R. 195, 229, 3 I. C. R. 460), 339, 345, 395. Coyle V. So. Ry. Co. (112 Ga. 121, 37 S. E. 163), 37. 54 Table of Cases Cited. (References are to Sections.] Cozart V. Southern Ry. Co. (16 I. C. C. 226), 29, 346. Cram v. Chicago, B. & Q. R. Co. (84 Neb. 607, 122 N. W. ai. 26 L. R. A. (N. S.) 1022, 85 Neb. 586, 123 N. W. 1045, 26 L. R. A. (N. S.) 1028, 19 Ann. Cas. 170), 20, 25. Cramer v. C. R. & I. R. Co. (153 Iowa 103, 133 N. W. 387), 439. Crane Iron Works v. C. of N. J. R. Co. (17 I. C. C. 514), 171, 195, 338, 400. Crane Iron Works v. United States (209 Fed. 238), 121, 171, 195. 249, 313, 338, 400. Crane R. Co. v. Philadelphia & R. R. Co. (15 I. C. C. 248), 195, 338, 400. Craven v. Carter Crume Co. (92 Fed. 479, 34 C. C. A. 479, 1 Fed. Anti-Trust Dec. 983), 487. Crescent Brewing Co. v. Or. S. L. R. Co. (24 Idaho 106, 132 Pac. 975), 58. Crescent Coal & Mining Co. v. C. & E. I. R. Co. (24 I. C. C. 149), 339, 358. Crescent Mfg. Co. v. Wilson (233 Fed. 282), 58. Crews V. Richmond & D. R. Co. (1 I. C. C. 401, 1 I. C. R. 703), 12, 163, 345. Crouch V. G. N. R. Co. (11 Ex. 742, 25 L. J. Ex. 137), 157. Crouch Grain Co. v. A. T. & S. F. Ry. Co. (41 I. C. C. 717), 440. Cudahy Packing Co. v. Frey & Son (261 Fed. 65, — C. C. A. — ), 497, 498. Cudahy Packing Co. v. G. T. W. R. Co. (215 Fed. 93), 337. Cumberland Tel. & Tel. Co. v. Memphis (198 Fed. 955), 453. Cummins Amendment, The (33 I. C. C. 682), 34a, 440. Curry v. Kansas & C. P. Ry. (58 Kan. 6, 51 Pac. 576), 342. Curry & Whyte v. D. & I. R. Co. (30 I. C. C. 1), 208, 345, 383. Curry «S: Whyte v D. & I. R. Co. (32 I. C. C. 162), 345. Cutting V. Fla. Ry. & Nav. Co. (46 Fed. 641), 335. Dairyman's Supply Co. v. P. R. Co. (28 I. C. C. 406), 442. Dakota Cent. Tel. Co. v. S. Dakota (250 U. S. 163, 63 L. Ed. 910, 39 Sup. Ct. 507, P. U. R. 1919 D. 717, 4 A. L. R. 1623), 28, 43, 335. Dallas Freight Bureau v. Austin & N. W. R. Co. (9 I. C. C. 68), 348. Dallas Freight Bureau v. Gulf, C. & S. F. Ry. Co. (12 I. C. C. 223), 110, 250, 339, 383, 392. Dallas Freight Bureau v. Missouri, Kas. & Tex. Ry. Co. (12 I. C. C. 427), 339, 392. Dallas Freight Bureau v. Texas Pac. Ry. Co. (8 I. C. C. 33), 348. Daniel Ball (The) v. United States (10 Wall. 77 U. S. 557, 19 L. Ed. 999), 3, 55, 67, 335. Table or Cases Cited,. 55 [References are to Sections.] Daniels v. Chicago, M. & St. P. R. Co. et al. (6 I. C. C. 458), 304. Daniels v. Chicago, R. I. & P. R. Co. (6 I. C. C. 458), 153, 199, 346, 34)5. Danville Va. Class & Commodity Rates (38 I. C. C. 742), 259. Danville v S. R. Co. (8 I. C. C. 571), 416. DanviHe v. Southern Ry. Co. (8 I. C. C. 409), 346. Darius Coal Trans. Co. v. White Star Line (186 Fed. 63, 108 C. C. A. 165), 486. Darling v. B. & O. R. Co. (15 I. C. C. 78), 88. Darnell v. Edvk^ards (209 Fed. 99), 43. Darnell v. Edwards (244 U. S. 564, 61 L. Ed. 1317, 37 Sup. Ct. 701). 47. Darnell v. I. C. R. Co. (190 Fed. 656), 407. Darnell v. I. C. R. Co. (225 U. S. 243, 56 L. Ed. 1072, 32 Sup. Ct. 760, 190 Fed. 656), 294. Darnell-Taenzer Lumber Co. v. So. Pac. Co. (13 I. C. C. 668, 190 Fed. 659), 207. Darnell-Taenzer Lumber Co. v. So. Pac. Co. (221 Fed. 890, — C. C. A. — , 190 Fed. 659), 208, 383, 407. Darragh v. Wetter Mfg. Co. (78 Fed. 7, 23 C. C. A. 609), 60. Davis Bros. Lumber Co. v. C. R. L & P. R. Co. (46 I. C. C. 501), 170. Davis V. Booth (131 Fed. 31, 65 C. C. A. 269, 2 Fed. Anti-Trust Dec. 566), 486. Davis V. Booth (196 U. S. 636, 49 L. Ed. 355, 25 Sup. Ct. 793), 486. Davis V. C. C. C. & St. Louis R. Co. (217 U. S. 157, 54 L. Ed. 708, 30 Sup. Ct. 463, 146 Fed. 403), 42, 56. Davis V. Gray (16 Wall., 83 U. S. 203, 21 L. Ed. 447), 60. Davis v. Pere Marquette R. Co. (10 I. C. C. 405), 178. Davis V. S. A. L. R. Co. (136 Ga. 278, 71 S. E. 428), 32. Davis V. So. Pac. Co. (235 Fed. 731), 371. Davis V. State (68 Ala. 58, 44 Am. Rep. 128), 45. Davis V. United States (104 Fed. 136, 43 C. C. A. 448), 178, 386. Davis Bros. Lumber Co. v. C. R. I. & P. R. Co. (26 I. C. C. 257), 401. Dayton Coal & Iron Co. v. C. N. O. & T. P. Ry. Co. (239 U. S. 446, 60 L. Ed. 375, 36 Sup. Ct. 137), 361. De Bary v. Louisiana (227 U. S. 108, 57 L. Ed. 441, 33 Sup. Ct. 239), 58. Debs, Re (158 U. S. 564, 39 L. Ed. 1092, 15 Sup. Ct. 900, 1 Fed. Anti- Trust Dec. 565), 486. Decatur Nav. Co. v. L. & N. R. Co. (31 I. C. C. 281), 121, 151, 338, 375, 400, 401. Decker v. M. & St. L. R. Co. (55 I. C. C. 453), 34a, 440. Delaware & Hudson Boat Lines (40 I. C. C. 297), 354. 56 Table of Cases Cited. [References are to Sections.] Delaware, etc., Coal Co. v. D. L. & W. R. Co. (46 I. C. C. 506), 207, 208. Delaware, L. & W. R. Co. v. Central Stock Yard & Transit Co. (45 N. J. Eq. 50, 6 L. R. A. 855, 17 Atl. 146), 45. Delaware, L. & W. R. Co. v. Frank (110 Fed. 689, 2 Fed. Anti-Trust Dec. 81), 37, 486. Delaware, L. & W. R. Co. v. Int. Com. Com. (155 Fed. 512), 465*. Delaware, L. & W. R. Co. v. Int. Com. Com. (166 Fed. 498), 465. Delaware, L. & W. R. Co. v. Int. Com. Com. (166 Fed. 499), 138, 157, 344, 345, S.95, 465. Delaware, L. & W. R. Co. v. Kutter (147 Fed. 51, 77 C. C. A. 315, 2 Fed. Anti-Trust Dec. 1021), 344, 386. Delaware, L. & W. R. Co. v. Public Utilities Com. (85 N. J. L. 28, 88 Atl. 849), 39. Delaware, L. & W. R. Co. v. Public Utility Comrs. (84 N. J. L. 619, 8(t Atl. 801), 37, 38, 39. Delaware, L. & W. R. Co. v. Rutter (203 U. S. 588, 51 L. Ed. 330, 27 Sup. Ct. 776), 344, 386. Delaware, L. & W. R. Co. v. United States (231 U. S. 363, 58 L. Ed. 269, 34 Sup. Ct. 65), 63, 343. Delaware, L. & W. R. Co. v. Van Santwood (216 Fed. 252), 19. Delaware State Grange v. New York, P. & N. R. Co. (2 I. C. C. 309, 2 I. C. R. 187), 126, 392. Delaware State Grange v. New York, P. & N. R. Co. (4 I. C. C. 588, 3 I. C. R. 554), 88. Delaware State Grange v. New York, ?. & N. R. Co. (5 I. C. C. 161, 3 I. C. R. 828), 416. Delk V. St. L. & S. F. R. Co. (220 U. S. 580, 55 L. Ed. 590, 31 Sup. Ct. 617), 41. Delray Salt Co. v. Michigan C. R. Co. (18 I. C. C. 268), 110. Deming Lumber Co. v. S. P. Co. (24 I. C. C. 598), 213. Demurrage Charges State of Calif. (25 I. C. C. 314), 345. Denaby Main Colliery Co. v. Manchester, etc., R. Co. (11 App. Cas. 97), 158. Denison Light & Power Co. v. Missouri, K. & T. Ry. Co. (10 I. C. C. 337), 90. Dennehy v. McNulta (86 Fed. 825, 30 C. C. A. 422, 41 L. R. A. 609, 1 Fed. Anti-Trust Dec. 855). 487. Denver & N. O. R. Co. v. A. T. & S. F. R. Co. (15 Fed. 650), 304. Denver & R. G. Co. v. Baer Bros. (187 Fed. 485, 109 C. C. A. 337), 207, 317, 383, 407. Denver & R. G. R. Co. v. Baer Bros. (209 Fed. 577, 126 C. C. A. 399), 215, 216, 317, 407. Table of Cases Cited. 57 [References are to Sections.] Denver & R. G. R. Co. v. Baer Bros. (200 Fed. 614), 407. Denver & R. G. R. Co. v. Int. Com. Com. (195 Fed. 968), 317. De Rochemont v. N. Y. C. & H. R. R. Co. (75 N. H. 158, 71 Atl. 868), 42. Desel-Boettcher Co. v. Kansas City So. Ry. Co. (12 I. C. C. 220), 110. Des Moines Commodity Rates (34 I. C. C. 281), 88. Des Moines Gas Co. v. Des Moines (238 U. S. 153, 59 L. Ed. 1244. 35 Sup. Ct. 811), 47. Detroit & M. R. Co. v. Fletcher Paper Co. (248 U. S. 30, 63 L. Ed. — , 39 Sup. Ct. 250), 43. Detroit Board of Trade v. Grand Trunk R. Co. (2 I. C. C. 315, 1 I. C. R. 699, 2 I. C. R. 199), 345, 346. Detroit, G. H. & M. Ry. Co. v. Int. Com. Com. (74 Fed. 803, 21 C. C. A. 103, 43 U. S. App. 308), 339, 345, 346, 348, 392, 406. Dewey Bros. v. Baltimore & O. R. Co. (11 I. C. C. 481), 177, 348, 383. Diamond Lumber Co. v. M. & St. P. Ry. Co. (43 I. C. C. 65), 116. Diamond Match Co. v. Ontonagon (188 U. S. 82, 47 L. Ed. 394, 23 Sup. Ct. 266), 55. Diamond Mills Co. v. Boston & M. R. Co. (9 I. C. C. 311), 163, 346, 348. Direct Navigation Co. (46 I. C. C. 378), 354. Dixie Dairymen's Asso. v. Y. & M. V. R. Co. (27 I. C. C. 618), 88. Dixie Tob. Co. v. N. & W. R. Co. (Ill Ga. 813, 69 S. E. 1106), 439. Doctor Miles Medical Co. v. Jaynes Drug Co. (149 Fed. 838), 486. Doctor Miles Medical Co. v. Jno. D. Park & Sons Co. (164 Fed 803, 90 C. C. A. 579, 486. Douglas & Co. V. C. R. I. & P. R. Co. (21 I. C. C. 541), 395. Douglas, Ga., Mayor & Council of, v. Atlanta, B. & A. R. Co. (28 I. C. C. 445), 108. Dow V. Beidelman (125 U. S. 680, 31 L. Ed. 841, 2 I. C. R. 56, 8 Sup. Ct. 1028), 45, 82. Dowd V. United Mine Workers ot Am. (235 Fed. 1, 148 C. C. A. 495), 486, 492, 493, 517. Downie Coal Co. v. N. P. R. Co. (31 I. C. C. 142), 121. Drayage Absorption (43 I. C. C. 472), 346. Dudley v. May hew (3 N. Y. 9), 292. Dueber Watch-Case Mfg. Co. v. Howard Watch & Clock Co. (55 Fed. 851, 1 Fed. Anti-Trust Dec. 178), 492. Dueber Watch-Case Mfg. Co. v. Howard Watch & Clock Co. (66 Fed. 637, 14 I. C. C. A. 14, 1 Fed. Anti-Trust Dec. 421), 489, 492 Duffney Brick Co. v. B. & M. R. Co. (39 I. C. C. 118), 101. Dugan V. Bridge Co. (27 Pa. St. 303), 54. Duluth Dockage Absorption (44 I. C. C. 300), 80a. 5S Table of Cases Cited, [References are to Sections.] Duluth Log. Co. V. Minn. & Int. Ry. Co. (15 I. C. C. 627), 140, 218. Duluth, Minn., Log Rates (29 I. C. C. 420), 101. Duluth Shingle Co. v. Duluth S. S. & A. R. Co. (10 I. C. C. 489), 160, 346. Duncan v. Atchison, T. & S. F. R. Co. (6 I. C. C. 85, 3 I. C. R. 256, 4 I. C. R. 385), 181, 206, 339, 345, 346, 358, 383. Duncan v. Nashville, C. & St. L. Ry. Co. (16 I. C. C. 590), 112, 165, 345. Dunqan v. N. C. & St. L. Ry. Co. (21 I. C. C. 186), 166. Duncan v. N. C. & St. L. Ry. Co. (35 I. C. C. 477), 166, 348. Duplex Printing Press Co. v. Deering (252 Fed. 722), 500. Durham v. Ill Cent. R. Co. (12 I. C. C. 37), 348. E. East-Bound-Transcontinental Canned Goods (50 I. C. C. 62), 88. East Jersey R. R. & T. Co. v. C. R. R. Co. of N. J. (36 I. C. C. 146), 399. East St. Louis Cotton Oil Co. v. St. L. & S. F. R. Co. (20 I. C. C. 37), 91. East Tenn. Va. & Ga. Ry. Co. v. Int. Com. Com. (99 Fed. 52, 39 C. C. A. 413), 147. East Tenn., Va. & Ga. Ry. Co. v. Int. Com. Com. (181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. 516), 92, 93, 109, 128, 147, 153, 199, 312, 346, 348, 406. Eastern Oregon Lumber Producers Assn. v. C. B. & Q. R. Co. (39 I. C. C. 316, 338. Eastern Shore Development S. S. Co. v. B. & O. R. Co. (32 I. C. C. 238), 401. Eastern Shore, etc., Produce Ex. v. N. Y. P. & N. R. Co. (40 I. C. C. 328), 147. Eastern States Lumber Dealers' Asso. v. United States (234 U. S. 600, 58 L. Ed. 1490, 34 Sup. Ct. 95), 486, 492. Eastern T. R. Co. v. Railroad Com. of Texas (242 Fed. 300), 44. Eastern Wheel Mfg. Co. v. A. & V. R. Co. (27 I. C. C. 370), 392. Eaton V. Cincinnati, H. & D. R. Co. (11 I. C. C. 619), 87, 383. Edwards v. Nashville, C. & St. Ry. Co. (12 I. C. C. 247). 29. Edwards & Bradford Lumber Co. v. C. B. & Q. R. Co. (25 I. C. C. 93), 244, 348. Edmunds v. 111. Cent. R. Co. (80 Fed. 78), 213, 383. Eichenberg v. Southern Pac. Co. (14 I. C. C. 250), 10, 68, 139, 222. 335, 336, 337, 346. Eldred Milling Co. v. C. N. R. Co. (42 I. C. C. 215), 346. Elevation Allowances at St. Louis (30 I. C. C. 096), 339. Table of Cases Cited. 59 [References are to Sections.] Elgin, J. & E. Ry. Co. v. United States (253 Fed. 907, — C. C. A. — ), 385. Elk Cement & Lime Co. v. B. & O. R. Co. (22 I. C. C. 446), 183. Elliott Machine Co. v. Center (227 Fed. 124), 497. Ellis V. Inman, Poulsen & Co. (124 Fed. 956, 2 Fed. Anti-Trust Dec. 268), 486. Ellis V. Inman, Poulsen & Co. (131 Fed. 182, G5 C. C. A. 488, 2 Fed. Anti-Trust Dec. 577), 486. Ellis V. Int. Com. Com. (237 U. S. 434, 59 L. Ed. 1036. 35 Sup. Ct. 645), 220, 310, 389. El Paso & N. E. R. Co. v. Gutierrez (215 U. S. 87, 54 L. Ed. 106, 30 Sup. Ct. 21), 33. Elvey V. 111. Cent. R. Co. (3 I. C. C. 652, 2 I. C. R. 804), 345, 346. Elwood Grain Co. v. St. J. & G. I. R. Co. (202 Fed. 845, 121 C. C A. 153), 371. Emerson v. B.-& M. R. Co. (75 N. H. 427, 75 Atl. 529), 38. Emery & Co. v. B. & M. R. Co. (38 I. C. C. 636, 47 I. C. C. 200), 65, 346. Emlenton Petroleum Rates (29.1. C. C. 519), 348. Empire Coke Co. v. B. & S. R. Co. (31 I. C. C. 573), 399. Engemoen v. C. St. P. M. & 0. R. Co. (210 Fed. 896), 358. Enterprise Fuel Co. v. Penn. R. Co. (16 I. C. C. 219), 111, 149, 338. 347, 400. Enterprise Mfg. Co. v. Georgia R. Co. (12 I. C. C. 451), 93, 339, 346, 486. Enterprise Transportation Co. v. Penn. R. Co. (12 I. C. C. 326), 14, 195, 249, 335, 337, 338. Erb V. Morasch (177 U. S. 584, 44 L. Ed. 897, 20 Sup. Ct. 819), 20. Erie R. Co. v. New York (233 U. S. 671, 58 L. Ed. 1149, 34 Sup. Ct. 756, 198 N. Y. 369, 91 N. E. 849, 29 L. R. A. (N. S.) 240, 139 Am. Rep. 829, 19 Ann. Cas. 811), 22, 33. Erie R. Co. v. Stone (244 U. S. 332, 61 L. Ed. 1173, 37 Sup. Ct. 633), 440. Erie R. Co. v. Stuart (250 U. S. — , 63 L. Ed. — , 39 Sup. Ct. — ), 34a, 440. Erie R. Co. v. United States (200 Fed. 406), 481. Erie R. Co. v. Williams (233 U. S. 685, 58 L. Ed. 1155, 34 Sup. Ct. 761, 199 N. Y. 525, 92 N. E. 1084, 136 App. Div. 902, 120 N. Y. Sup. 1023), 22, 23. Escabana Co. v. Chicago (107 U. S. 678, 27 L. Ed. 442, 2 Sup. Ct. 185), 54. Eschner v. P. R. Co. (18 I. C. C. 60), 38. Essex V. New England Tel. Co. (239 U. S. 313, 60 L. Ed. 301, 36 Sup. Ct. 102), 7, 470. 60 Table of Cases Cited. [References are to Sections.] Evans v. 0. R. & N. Co. (1 I. C. C. 325), 88. Evans v. Union Pac. R. Co. (6 I. C. C. 520), 110, 339. Evens & Howard Fire Brick Co. v. St. L., I. M. & S. R. Co. (25 1. C. C. 141), 394. Evershed v. London & N. W. R. Co. (33 App. Cas. 1029), 158. Ewing V. Leavenwortli, 226 U. S. 464, 57 L. Ed. 303, 33 Sup. Ct. 157), 69. Excursion Car Co. v. P. R. Co. (3 I. C. C. 577), 197. Ex parte, Benson (18 S. C. 38), 133. Ex parte Debs, see Debs, re. Ex parte Koehler (30 Fed. 867). 335, 345. Ex parte Koehler (31 Fed. 315, 12 Sawy. 446), 442. Ex parte Lennon (64 Fed. 320, 22 U. S. App. 561), 347. Ex parte Lennon (166 U. S. 548, 41 L. Ed. 1110, 17 Sup. Ct. 658), 347. Ex parte Metropolitan Water Co. (220 U. S. 539, 55 L. Ed. 576, 31 Sup. Ct. 600), 320, 453. Ex parte McNeil (80 U. S. 13 Wall. 236, 20 L. Ed. 624), 292. Ex parte Oklahoma (220 U. S. 191, 55 L. Ed. 431, 31 Sup. Ct. 426), 58. Ex parte O'Neill (83 Pac. 104), 87. Ex parte Westbrook (250 Fed. 636), 2. Ex parte Young (209 U. S. 123, 52 L. Ed. 714. 28 Sup. Ct. 441), See Young Ex parte. Export Rates on Grain & Grain Products (31 I. C. C. 616), 346. Export Shipping Co. v. Wabash R. Co. (14 I. C. C. 437), 157, 345, 383, 442, 444. Express Rates and Practices (43 I. C. C. 510), 34a, 440. F. Fabrication in Transit Charges (29 L C. C. 70), 169, 358. Fairmont Creamery Co. v. Adams Ex. Co. (43 I. C. C. 724), 335. Falls & Co. V. Chicago, R. T. & P. Ry. Co. (15 I. C. C. 269). 205, 383. Fargo Iron & Metal Co. v. G. N. Ry. Co. (46 I. C. C. 399), 169. Farmers' Elevator Co. v. C. M. & St. P. Ry. Co. (47 I. C. C. 475), 174. Farmers' Loan & Trust Co. v. Northern Pac. R. Co. (83 Fed. 249), 335, 348, 395, 406. Farmers', Merchants' & Shippers' Club v. Atchison, T. & S. F. R. Co. (12 I. C. C. 351), 90, 91, 105. Farmers' Warehouse Co. v. Louisville & N. R. Co. (12 I. C. C. 457), 339, 383. Farrar v. East Tenn., Va. & Ga. Ry. Co. (1 I. C. C. 480, 1 I. C. R. 764), 99. Table of Cases Cited. 61 [References are to Sections.] Farrar v. Southern Ry. Co. (11 I. C. C. 632), 96, 3X9, 348. Farrar v. So. Ry. Co. (11 I. C. C. 640), 99. Federal Glass Co. v. C. R. I. & P. Ry. Co. (38 I. C. C. 331), 207. Federal Sugar Refining Co. v. B. & O. R. Co. (17 I. C. C. 40. 20 I. C. C. 200), 9, 197, 335, 343. Federal Sugar Refining Co. v. B. & O. R. Co. (20 I. C. C. 200), 140, 197, 343, 404. Federal Sugar Refining Co. v. C. of N. J. R. Co. (35 I. C. C. 488), 121, 194, 338, 344, 375. Federal Trade Commission v. Gratz (258 Fed. 314, 252 U. S. — , 64 U Ed. — , 40 Sup Ct. — ), 329. Fels V. P. R. Co. (23 I. C. C. 483), 254, a92, 408. Fels V. P. R. Co. (25 I. C. C. 154), 90. Ferguson Saw Mill Co. v. St. Louis, I. M. & S. R. Co. (IS I. C. C. 396, 398), 107. Fewell V. Richmond & D. R. Co. (7 I. C. C. 354), 348. Field V. Barber Asphalt Paving Co. (117 Fed. 925, 2 Fed. Auti-Trust Dec. 192), 486. Field V. Barber Asphalt Paving Co. (194 U. S. 618, 48 L. Ed. 1142, 24 Sup. Ct. 784, 2 Fed. Anti-Trust Dec. 555), 486. Field V. Clark (143 U. S. 649), 36 L. Ed. 294, 12 Sup. Ct. 495), 54. Field V. So. R. Co. (13 I. C. C. 298), 442. Fitchburg R. Co. v. Gage (12 Gray 393), 133. Fitzgerald v. Fitzgerald, etc.. Construction Co. (41 Neb. 374, 59 N. W. 838), 383. Five Per Cent. Case (31 I. C. C. 351, 32 I. C. C. 325), 82, 88, 141, 171, 223, 259, 342, 398, 399. Flaccus Glass Co. v. Cleveland, etc., R. Co. (14 1. C. C. 333), 339. Fleitmann v. United Gas Improvement Co. (211 Fed. 103), 492. Fleitmann v. Welsbach Co. (240 U. S. 27, 60 L. Ed. 505), 36 Sup. Ct. 233), 513. Fletcher v. Peck (6 Cranch 10 U. S. 107, 3 L. Ed. 162), 7. Flint V. Stone-Tracy Co. (220 U. S. 107, 55 L. Ed. 389, 31 Sup. Ct. S42), 59. Florida Citrus Ex. v. A. C. L. R. Co. (39 I. C. C. 325). 174. Florida E. C. R. Co. v. United States (234 U. S. 167, 58 L. Ed. 1267, 34 Sup. Ct. 867), 309, 312. I lorida Fruit & Vegf.table Asso. v. A. C. L. P. Co. (17 I. C. C. 552), 126. Flour City S. S. Co. v. L. V. R. R. Co. (24 I. C. C. 179), 338, 346, 347, 400. Folmer & Co. v. Great Nor. Ry. Co. (15 I. C. C. 33), 358. 62 Table op Cases Cited. [References are to Sections.] Foot V. Buchanan (113 Fed. 156, 2 Fed. Anti-Trust Dec. 103), 486. Foote V. Stanley (232 U. S. 494, 58 L. Ed. 698, 34 Sup. Ct. 377), 58. Forbes Mfg. Co. v. Lehigh V. R. Co. (39 I. C. C. 566), 383. Ford V. M. C. R. Co. (19 L C. C. 507), 81. Ford Motor Co. v. Union Motor Sales Co. (244 Fed. 156, 156 C. C. A. 584), 486. Foreman v. Board of Com'rs (64 Minn. 371, 9 N. W. 737), 49. Forest City Freight Bureau v. A. A. R. Co. (13 I. C. C. 118), 392. Forest City Freight Bureau v. A. A. R. Co. (18 I. C. C. 205), 81, 88. Forster Bros. v. Duluth, etc., Ry. Co. (14 L C. C. 232), 383, 391. Fort Scott Industrial Asso. v. St. L. & S. F. R. Co. (29 I. C. C. 629), 348. Fort Smith Traffic Bureau v. St. Louis & S. F. R. Co. (13 I. C. C. 651), 339. Foster v. Cleveland, C. C. & St. L. Ry. Co. (56 Fed. 434), 336. Foster v. Davenport (22 How. 63 U. S. 244, 16 L. Ed. 248), 56. Fourche River Lumber Co. v. Bryant Lumber Co. (97 Ark. 623, 135 S. W. 796), 186. Fourche River Lumber Co. v. Bryant Lumber Co. (2S0 U. S. 816, 57 L. Ed. 1498, 33 Sup. Ct. 887), 186, 197, 371. Fourth Section Violation in Rates on Sugar (31 I. C. C. 511), 348. Fourth Section Violation in S. E. (30 I. C. C. 153, 32 I. C. C. 61), 108, 244, 348. Francis v. United States (188 U. S. 375, 47 L. Ed. 508, 23 Sup. Ct. 334), 58. Franke Grain Co. v. 111. C. R. Co. (27 I. C. C. 625), 212, 358, 359, 360. Franklin v. P. & R. R. Co. (203 Fed. 134), 407. Fraser v. Duffey (196 Fed. 900), 486. Freeman v. So. Ry. Co. (42 I. C. C. 736), 169. Freight Bills (29 I. C. C. 496), 403. Freight Bureau of Cincinnati v. Cincinnati, N. O. & T. P. Ry. Co. (6 I. C. C. 195, 4 I. C. R. 592), 100, 339, 352, 395, 648. Freight Bureau of Cincinnati v. Cincinnati, N. O. & T. P. Ry. Co. (7 I. C. C. 180), 339, 346. Freight Rates from Minnesota Points (32 I. C. C. 361), 6, 44. Frey & Sons v. Cudahy Packing Co. (232 Fed. 640, 243 Fed. 205, 261 Fed. 65), 496, 498, 505. Friedman v. United States (233 Fed. 429), 334. Fruit Dispatch Co. v. P. & R. Ry. Co. (48 I. C. C. 634), 207. Fry V. State (63 Ind. 552), 37. Fullerton Lumber & Shingle Co. v. B. B. & B. C R. Co. (25 I. C. C. 376), 68. Table of Cases Cited. 63 [References are to Sections.] G. Gaines v. Seaboard A. L. R. Co. (16 I. C. C. 471), 29, 346. Gallagher v. Keating (27 Misc. Rep. 131, 58 N. Y. Sup. 366), 13. Gallogly V. Cincinnati, H. & D. R. Co. (11 I. C. C. 1), 175, 383. Galloway Coal Co. v. A. G. S. R. Co. (40 I. C. C. 311), 144, 145a. Galloway Co. v. G. B. & W. Ry. Co. (48 I. C. C. 455), 205. Galveston Com. Asso. v. A. T. & S. P. R. Co. (25 I; C. C. 216), 175. Galveston, H. & S. A. Ry. v. Crow (117 S. W. 170), 439. Galveston, H. & S. A. Ry. Co. v. Texas (210 U. S. 217, 52 L. Ea. 1031, 28 Sup. Ct. 638), 59. Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481, 56 L. Ed. 516, 32 Sup. Ct. 205, 117 S. W. 169), 34, 292, 295, 439. Gamble-Robinson Com. Co. v. C. & N. W. R. Co. (168 Fed. 161, 94 C. C. A. 217, 21 L. R. A. (N. S.) 982, 16 Ann. Cas. 613), 176. Gardner v. Southern Ry. Co. (10 I. C. C. 342), 346, 348, 383. Gardner v. W. U. Tel. Co. (231 Fed. 405), 440. Garrison v. Southern Ry. Co. (150 N. C. 575, 64 S. E. 578), 25. Gatton V. Chicago, R. I. & P. Ry. Co. (95 Iowa 112, 62 N. W. 589, 28 L. R. A. 556, 5 I. C. R. 474), 383, 443. Geddes v. Anaconda Copper Mining Co. (245 Fed. 225, 157 C. C. A. 417), 513. Geer v. Connecticut (161 U. S. 519, 40 L. Ed. 793, 16 Sup. Ct. 600), 58. General Electric Co. v. New York C. & H. R. R. Co. (14 I. C. C. 237), 143, 171, 205, 206, 404. General Electric Co. v. Wise (119 Fed. 922, 2 Fed. Anti-Trust Dec. 205), 486. General Film Co. v. Sampliner (252 Fed. 443, 255 Fed. 242, — C. C. A. — , 259 Fed. 152, — C. C. A. — , 250 U. S. — , 63 L. Ed. — , 39 Sup. Ct. — ), 492. Georgetown Ry. & L. Co. v. N. & W. Ry. Co. (22 I. C. C. 144), 95. Georgia F. & A. R. Co. v. Blish Milling Co. (241 U. S. 190, 60 L. Ed. 948, 36 Sup. Ct. 541, 15 Ga. App. 142, 82 S. E. 784), 295, 440. Georgia Fruit Exchange v. So. Ry. Co. (20 I. C. C. 623), 115, 122. Georgia Peach Growers' Asso. v. Atlantic C. L. R. Co. (10 I. C. C. 255), 88, 339. Georgia R. & B. Co. v. Smith (70 Ga. 694), 63. Georgia R. & B. Co. v. Smith (128 U. S. 174), 32 L. Ed. 377, 9 Sup. Ct. 47), 63. Gerke Brewing Co. v. Louisville & N. R. Co. (5 I. C. C. 596, 4 I. C. R. 267), 348. 64 Table of Oases Cited. [References are to Sections.] German Alliance Ins. .Co. v. Lewis (23a U. S. 389, 58 L. Ed. 1011, 34 Sup. Ct. 612 j, 43, 61. Gibbons v. Ogden (9 Wheat 1, 6 L. Ed. 23, 70), 2, 4, 15, 54, 62. Gibbs V. McNeeley (102 Fed. 594, 2 Fed. Anti-Trust Dec. 25), 492. Gibbs V. McNeeley (118 Fed. 120, 55 C. C. A. 70, 60 L. R. A. 152, 2 Fed. Anti-Trust Dec. 194), 492. Gibbs V. McNeeley (107 Fed. 210, 2 Fed. Anti-Trust Dec. 71), 492. Gibson v. United States (166 U. S. 260, 41 L. Ed. 996, 17 Sup. Ct. 578), 54. Gile & Co. V. Sou. Pac. Co. (22 I. C. C. 298), 244. Gill Engraving Co. v. Doerr (214 Fed. Ill), 486, 489. Gilman v. Philadelphia (3 Wall. 70 U. S. 713, 18 L. Ed. 96), 54. Girard Point Storage Co. v. Southwark Foundry Co. (105 Pa. 248), 45. Glade Coal Co. v. Baltimore & O. R. Co. (10 I. C. C. 226), 175, 339, -346. Gladson v. Minnesota (166 U. S. 427, 41 L. Ed. 1064, 17 Sup. Ct. 627), 21. Globe Soap Co. v. A. & S. Ry. Co. (40 I. C. C. 121), 399. Gloucester Ferry Co. v. Penn. (114 U. S. 196. 29 L. Ed. 158, 5 Sup. Ct. 826), 53. Glucose, From Chicago (36 I. C. C. 379), 91. Goff-Kirby Coal Co. v. Bessemer & L. E. R. Co. (15 I. C. C. 553), 383. Goldfield Con. Mines Co. v. Goldfield Miners' Union (159 Fed 500), 487. Goodman Mfg. Co. v. P. R. Co. (26 I. C. C. 423), 206, 210. Goodrich Transit Co. v. Int. Com. Com. (190 Fed. 943), 63, 65, 69, 220, 226, 235, 310. Goshen Rubber Works v. Single Tube A. & B. Tire Co. (166 Fed. 431, 92 C. C. A. 183), 4, 86. Grain Elevation Allowances, Kansas City (34 I. C. C. 442), 168. Grain from Missouri Points (43 I. C. C. 737), 396b. Grain Rates C. F. A. Territory (28 I. C. C. 549), 398. Grain Shippers' Asso. v. 111. Cent. R. Co. (8 I. C. C. 158), 82, 339, 383. Grain to Arkansas Points (40 I. C. C. 49), 396b. Grand Rapids & I. Ry. Co. v. Hunt (38 Ind. App. 657, 78 N. E. 358), 15. Grand Rapids & I. Ry. Co. v. United States (212 Fed. 577), 371. Grand Trunk Ry. Co. v. United States (229 Fed. 116, 143 C. C. A. 392 Ann. Cas. 1917 B. 1094, 248 Fed. 905, 161 C. C. A. — ), 481, 483. Grand Trunk W. Ry. Co. v. R. R. Com. of Ind. (221 U. S. 400, 55 L Ed. 786, 31 Sup. Ct. 537), 14, 15. Grand Trunk W. Ry. Co. v. Mich. R. R. Com. (231 U. S. 457, 58 L. Ed. 310, 34 Sup. Ct. 152, 198 Fed. 1009), 14, 192. Table of Cases Cited. 65 [References are to Sections.] Grand Trunk W. Ry. Co. v. Operation Car Ferry (34 I. C. C. 54), 354. Graustein v. B. & M. R. Co. (45 I. C. C. 393), 208. Gray v. Col. So. Ry. Co. (204 S. W. 347), 440. Great Atlantic & Pac. Tea Co. v. Cream of Wheat Co. (227 Fed. 46, 141 C. C. A. 594), 486. Greater Des Moines Com. v. Chicago G. W. Ry. Co. (14 I. C. C. 294), 348. Greater Des Moines Com. v. C. R. I. & P. R. Co. (17 I. C C. 54). 118. Greater New York Film Rental Co. v. Biograph Co. (203 Fed. 39, 121 C. C. A. 375), 486. Great Northern Ry. Co. v. Kalispell Lumber Co. (165 Fed. 25, 91 C. C. A. 63), 304, 443. Great Northern Ry. Co. v. Minnesota (238 U. S. 340, 59 L. Ed. 1337 S5 Sup. Ct. 753), 9. Great Northern Ry. Co. v. O'Connor (232 U. S. 508, 58 L. Ed. 703, 34 Sup. Ct. 380), 158, 371. Great Northern Ry. Co. v. United States (155 Fed. 945, 84 C. C. A. 93), 371, 448. Great Northern Ry. Co. v. United States (208 U. S. 452, 52 L. Ed. 569, 28 Sup. Ct. 313), 371, 448. Great Western R. W. Co. v. Grand Trunk R. W. Co. (25 U. C. R. 37), 352. Great Western Ry. v. Sutton (38 L. J. Ex. 177, L. R. 4 H. L. 226, 22 L. T. 43, 18 W. R. 92), 133, 137, 158, 205, 345. Green & Son v. So. Ry. Co. (40 I. C. C. 157), 214. Green Bay Business Men's Asso. v. Baltimore & O. R. Co. (15 I. C. C. 59), 3S9. Greenbaum v. L. & N. R. Co. (30 L C. C. 699), 383. Greenbaum v. Sou. Ry. Co. (38 I. C. C. 715), 208. Green v. A. & V. Ry. Co. (43 I. C. C. 662), 105, 183. Greenwall v. Weir (111 N. Y. Sup. 235, 59 Misc. Rep. 431, 130 N. Y. App. Div. 696, 115 N. Y. Sup. 311), 34, 439. Greer, Mills & Co. v. Stoller (77 Fed. 1, 1 Fed. Anti-Trust Dec. 620), 489, 490. Griffin Grocery Co. v. Southern Ry. Co. (11 I. C. C. 522), 346, 348. Grosbeck v. Duluth S. S. & A. R. Co. (251 U. S. — , 64 L. Ed. — , 40 Sup. Ct. — ), 47. Gulf Atlantic S. S. Co. v. A. C. L. R. Co. (46 I. C. C. 309), 375. (Julf & I. R. Co. V. T. & N. O. Ry. Co. (93 Tex. 482, 56 S. W. 328), 13. Gulf Coast Nav. Co. v. Kansas City So. Ry. Co. (19 I. C. C. 544), 195. Gulf, C. & S. F. R. Co. V. Dennis (224 U. S. 503, 56 L. Ed. 860, 32 Sup. Ct. 542), 32. G6 Table of Cases Cited. I References are to Sections.] Gulf, C. & S. F. R. Co. V. Dwyer (75 Tex. 572, 12 S. W. 1001, 7 L. R. A. 478), 32. Gulf, C. & S. F. R. Co. V. Eddins (7 Tex. Civ. App. 116, 26 S. W. 161), 32. Gulf, C. & S. F. R. Co. V. Fort Grain Co. (72 S. W. 419, 73 S. W. 845), 335. Gulf, C. & S. F. R. Co. V. Hefley (158 U. S. 98, 39 L. Ed. 910, 15 Sup. Ct. 802), 180, 204, 212. Gulf, C. & S. F. R. Co. V. Miami S. S. Co. (86 Fed. 407, 30 C. C. A. 142, 1 Fed. Anti-Trust Dec. 823), 149, 347, 492. Gulf, C. & S. F. R. Co. V. Moore (98 Tex. 302, 83 S. W. 362, 4 Ann. Cas. 770), 383, 405. Gulf, C. & S. F. R. Co. V. State (56 Tex. Civ. App. 353, 120 S. W. 1028), 14. Gulf, C. & S. F. R. Co. V. Texas (204 U. S. 403, 246 U. S. 58, 51 L. Ed. 540, 62 L. Ed. 574, 27 Sup. Ct. 360, 38 Sup. Ct. 236), 21, 41, 67, 335. Gump V. Baltimore & O. R. Co. (14 I. C. C. 98), 339, 348. Gund & Co. V. C. B. & Q. R. Co. (25 I. C. C. 326), 346. Gustin V. Atchison, T. & F. Ry. Co. (8 I. C. C. 277), 49, 99. Gustin V. Burlington & M. R. R. Co. (8 I. C. C. 481), 348. Gustin V. 111. Cent. R. Co. (7 I. C. C. 376), 338, 339. Gutierrez v. El Paso & N. E. R. Co. (215 U. S. 87, 54 L. Ed. 106. 30 Sup. Ct. 21), 33. Guyton & Harrington Mule Co. v. L. & N. R. Co. (50 I. C. C. 546), 192. H, Haddock v. Delaware, L. & W. R. Co. (3 I. C. R. 410), 389. Haddock v. Delaware, L. & W. R. Co. (4 I. C. C. 296, 3 I. C. R. 302), 416. Hadley-Dean Plate Glass Co. v. Highland Glass Co. (143 Fed. 242, 74 C. C. A. 462, 2 Fed. Anti-Trust Dec. 994), 486. Hagan v. Blindell (56 Fed. 696, 6 C. C. A. 86, 1 Fed. Anti-Trust Dec. 182), 489. Hale V. Hatch & North. Coal Co. (204 Fed. 433, 122 C. C. A. 619). 486, 492. Hale V. Henkel (201 U. S. 43, 50 L. Ed. 652, 26 Sup. Ct. 370, 2 Fed. Anti-Trust Dec. 874), 486. Hale V. New Jersey Nav. Co. (15 Conn. 539, 39 Am. Dec. 398), 55 Hale v. O'Connor Coal Sup. Co. (181 Fed. 267), 492. Hall v. DeCuir (95 U. S. 5 Otto. 485, 24 L. Ed. 547), 3, 29. Hall v. Geiger-Jones Co. (242 U. S. 539, 61 L. Ed. 480, 37 Sup. Ct. 217), 58. Table of Cases Cited. C7 [References are to Sections.] Halliday Milling Co. v. Louisiana & N. W. R. Co. (80 Ark. 5'M'. 1)8 S. W. S74), 383. Hamilton & Brown v. Chattanooga, R. & C. R. Co. (4 I. C. C. 686, 3 I. C. R. 482), 348. Hamlen & Sons Co. v. L C. R. Co. (212 Fed. 324), 358. Hammer v. Dagenhart (247 U. S. 251, 62 L. Ed. 1101, 38 Sup. Ct. 529, 3 A. L. R. 649), 2, 41, 334b. Hammond Packing Co. v. Arkansas (212 U. S. 322, 53 L. Ed. 530, 81 Ark. 519, 26 Am. St. Rep. 1047, 100 S. W. 407, 29 Sup. Ct. 370), 486. Hammond, Standish & Co. v. M. C. R. R. Co. (42 I. C. C. 102), 326. Hampton Mfg. R. Co. v. Old Dominion S. S. Co. (27 I. C. C. 666), 207. Hampton v. St. L. I. M. & S. R. Co. (227 U. S. 456, 57 L. Ed. 596, 33 Sup. Ct. 263), 26. Ilanley v. Kansas City S. R. Co. (187 U. S. 617, 47 L. Ed. 333, 23 Sup. Ct. 214), 69, 335. Hannibal Bridge Co. v. United States (221 U. S. 194, 55 L. Ed. 699, 31 Sup. Ct. 603), 54. Hannibal & St. J. R. Co. v. Husen (95 U. S. 465, 24 L. Ed. 527), 58. Hans Rees' Sons v. S. R. Co. (30 I. C. C. 585), 259. Hardaway v. S. R. Co. (90 S. C. 485, 75 S. E. 1020), 297. Hardenberg, D. & G. v. Northern ?ac. Ry. Co. (14 I. C. C. 579), 383. Hardwick Farmers' Elevator Co. v. Chicago, R. I. & P. R. Co. (110 Minn. 25, 124 N. W. 819, 19 Ann. Cas. 1088), 4, 25. Hare v. L. & N. W. R. W. Co. (2 J. & H. 480, 30 L. J. Ch. 817), 352. Harriman Bros. v. M. K. & T. R. Co. (128 S. W. 932), 439. Harriman v. Int. Com. Com. (211 U. S. 407, 53 L. Ed. 253, 29 Sup. Ct. 115), 78, 219, 299, 310, 389, 390, 432, 441, 447. Harriman v. Northern Securities Co. (132 Fed. 464, 2 Fed. Anti-Trust Dec. 587), 489. Harriman v. Northern Securities Co. (197 U. S. 244, 49 L. Ed. 739, 25 Sup. Ct. 493, 2 Fed. Anti-Trust Dec. 669), 489. Hartman v. John D. Park Sons (145 Fed. 358, 2 Fed. Anti-Trust Dec. 999), 486. Hartman Furniture & Carpet Co. v. Wisconsin Cent. R. Co. (15 I. C. C. 530), 218. Harvard v. Penn. Co. (4 I. C. C. 212, 3 I. C. R. 257), 111, 346. Harvey v. Louisville & N. R. Co. (5 I. C. C. 153, 2 I. C. R. 662, 3 L C. R. 793), 342, 442. Harwell v. Columbus & W. R. Co. (1 I. C. C. 236, 1 I. C. R. 631), 348. Haskell v. Kansas Natural Gas Co. (172 Fed. 545), 7. 68 Table of Cases Cited. I References are to Sections.] Hastings Malting Co. v. Chicago, M. & St. P. Ry. Co. (11 I. C. C. 675), 339, 348, 395. Hatch V. Reardon (204 U. S. 152, 51 L. Ed. 415, 27 Sup. Ct. 188). 57. Hawkins v. Wheeling, etc., R. Co. (9 I. C. C. 212), 175. Hayden Bros. Coal Corp. v. D. & S. L. R. Co. (39 I. C. C. 94), 99a. Hays V. Penn. Co. (12 Fed. 309), 345, 346. Heard v. Georgia R. Co. (1 I. C. C. 428, 1 I. C. R. 719), 346. Heard v. Georgia R. Co. (3 I. C. C. Ill, 2 I. C. R. 508). 346 Heated Car Service Regulations (50 I. C. C. 620), 440. Heath v. Sandersville R. Co. (Ga.) (98 S. E. 92), 440. Heckle v. C. B. & Q. R. Co. (46 I. C. C. 513), 129. Heck V. East Tenn., Va. & Ga. Ry. Co. (1 I. C. C. 495, 5 I. C. R. 775), 206, 335, 383, 403. Heider Mfg. Co. v. C. G. W. R. Co. (39 I. C. C. 556), 181. Heileman Brewing Co. v. C. M. & St. R. Co. (16 I. C. C. 396), 348. Henderson Cotton Mills v. L. & N. R. Co. (39 I. C. C. 399), 346. Hendrick v. Maryland (235 U. S. 610, 59 L. Ed. 38.5, 32 Sup. Ct. 140, 4, 59. Hennepin Paper Co. v. Northern Pac. R. Co. (12 I. C. C. 535), 177, 383. Hennington v. Georgia (163 U. S. 299, 41 L. Ed. 106, 16 Sup. Ct. 1086), 17, 18. Herndon v. C. R. I. & P. R. Co. (218 U. S. 135, 54 L. Ed. 970, 30 Sup. Ct. 633), 21. Herrick Refrigerator & Cold Storage Co. v. C. G. W. R. Co. (46 I. C. C. ' 421), 116. Hewins v. N. Y., N. H. & H. R. Co. (10 I. C. C. 221), 181, 346. Hewitt & Conner v. C. & N. W. R. Co. (16 I. C. C. 431), 348. Heymann v. So. Ry. Co. (203 U. S. 270, 51 L. Ed. 178, 27 Sup. Ct. 104), 58. Higbee v. W. U. Tel. Co. (179 Mo. App. 195, 166 S. W. 825), 340. Hill V. W. S. R. Co. (128 Ga. 705, 57 S. E. 795), 43. Hill & Bro. V. Nashville, C. & St. L. Ry. Co. (6 I. C. C. 343), 348. Hill, (Audley), & Co. v. S. R. Co. (20 I. C. C. 225), 105. Hill & Morris v. St. L. S. W. R. Co. (— Tex. Civ. App. — , 75 S, W. 874), 25. Hillsdale Coal & Coke Co. v. P. R. Co. (19 I. C. C. 356, 23 I. C. C. 186), 175, 208, 222, 266, 346, 383, 392, 394, 445. Hillsdale Coal and Coke Co. v. Penn. R. Co. (23 I. C. C. 186), 208. Hillsdale Coal & Coke Co. v. P. R. Co. (229 Pa. 61, 78 Atl. 28), 208, 383. Hillsdale Coal & Coke Co. v. Penn. R. Co. (237 Fed. 272), 383, 407. Table of Cases Cited. 69 [References are to Sections.] Hilton Lumber Co. v. Wilmington & W. R. Co. (9 I. C. C. 17), 339, 345, 346, 348. Hipolite Egg Co. v. United States (220 U. S. 45, 55 L. Ed. 3G4, 31 Sup. Ct. 364), 58, 383. Hires Condensed Milk Co. v. P. R. Co. (38 I. C. C. 441), 207. 266. Hitchman Coal & Coke Co. v. Mitchell (202 Fed. 512), 486. Hocking Domestic Coal Co. v. K. & M. Ry. Co. (44 I. C. C. 392), 346. Hocking Valley R. Co. v. Lackawana Coal & Lumber Co. (224 Fed 930, — C. C. A. — ), lis. Hocking V. R. Co. v. United States (210 Fed. 735, 127 C. C. A. 285), 126, 345, 358, 370, 371. Hoke V. United States (227 U. S. 308. 57 L. Ed. 523., 33 Sup. Ct. 281, 43 L. R. A. (N. S.) 906. Ann. Cas. 1912 B, 669, Ann. Cas. 1913E, 905), 2, 34. Holbrook v. St. Paul, M. & M. R. Co. (1 I. C. C. 102, 1 I. C. R. 323), 392. Holdzkom v. Mich. Cent. R. Co. (9 I. C. C. 42), 346, 348. Holmes & Co. v. Southern Ry. Co. (8 I. C. C. 561), 102, 339. Holmes & Hollowell Co. v. G. N. Ry. Co. (37 I. C. C. 627), 6. Home Tel. Co. v. Granby & N. Tel. Co. (114 Mo. 1111, 126 S. W. 773), 14, 327. Home Tel. Co. v. Peoples Tel. Co. (125 Tenn. 270, 141 S. W. 845), a27. Home Tel. Co. v. Sarcoxie Light & Tel. Co. (236 Mo. 114, 139 S. VV. 108), 327. Honolulu R. T. & L. Co. v. Hawaii (211 U. S. 282, 53 L. Ed. 186, 29 Sup. Ct. 55), 63. Hooker v. B. & M. R. Co. (209 Mass. 598, 95 N. E. 945, 23 Ann. Cas. 699), 34, 439. Hooker v. Int. Com. Com. (225 U. S. 302, 56 L. Ed. 1099, 32 Sup. Ct. 769), 308, 314, 460. Hooker v. Int. Com. Com. (188 Fed. 242), 308, 314. Hope Cotton Oil Co. v. Texas & Pac. Ry. Co. (10 I. C. C. 696), 335, 383. Hope Cotton Oil Co. v. Texas & Pac. Ry. Co. (12 I. C. C. 265), 339. Hopkins v. United States (171 U. S. 578, 43 L. Ed. 290, 19 Sup. Ct. 40, 1 Fed. Anti-Trust Dec. 941), 486. Horton v. So. Ry. Co. (173 Ala. 231, 55 So. 531), 9. Horton v. T. & G. Ry. Co. (225 Fed. 406), 337, 358. House V. Mays (219 U. S. 270, 55 L. Ed. 213, 31 Sup. Ct. 234). 57 Houston & T. C. R. Co. v. Dumas (43 S. W. 609), 180, 212. Houston & T. C. R. Co. v. Mayes (36 Tex. Civ. App. 606, 83 S. W, 53), 24. ^^J Table of Oases Cited. [References are to Sections.] Houston & T. C. R. Co. v. Mayes (201 U. S. 321, 50 L. Ed. 772, 26 Sup. Ct. 491), 24. Houston, E. & W. T. R. Co. v. United States (234 U. S. 342, 58 L. Ed. 1341, 34 Sup. Ct. 833), 2, 3, 9, 44, 62, 68, 140, 145, 184, 222, 259, 336, 346. Howard v. 111. Cent. R. Co. (207 U. S. 463, 52 L. Ed. 297, 28 Sup. Ct. 141), 22, 33, 62, 332. Howard Mills Co. v. Mo. Pac. R. Co. (12 I. C. C. 258), 91, 346. Howard Supply Co. v. Chesapeake & O. Ry. (162 Fed. 688), 407. Howell V. New York, L. E. & W. R. Co. (2 I. C. C. 272, 2 I. C. R. 162), 80, 88, 90, 105, 339, 346. Hoxie V. New York, N. H. & H. R. Co. (73 Atl. 754, 82 Conn. 373), 293. Hozier v. Caledonia R. Co. (17 Sess. Cas. 303, 1 Nev. & McN. R. Cas. 27), 144. Hubinger Bros. Co. v. A. T. & S. F. Ry. Co. (39 I. C. C. 672), 345. Hudson Valley R. Co. v. B. & M. R. Co. (45 Misc. 520, 92 N. Y Sup. 928. 106 App. Div. 375, 94 N. Y. Sup. 545), 17. Hudson V. C. St. P. M. & O. Ry. Co. (226 Fed. 38), 440. Huerfano Coal Co. v. C. & S. E. R. Co. (28 I. C. C. 502), 338, 344. Hughes Creek Coal Co. v. K. & M. R. Co. (29 I. C. C. 671), 195, 401. Hull Vehicle Co. v. Sou. Ry. Co. (28 I. C. C. 619), 181. Humboldt S. S. Co. v. Int. Com. Com. (39 Wash. L. Rep. 386), 335. Humboldt S. S. Co. v. White Pass & Y. Route (25 I. C C. 136), 195. Humphrey Brick & Tile Co. v. P. R. R. Co. (50 I. C. C 457), 106. Humphries v. Hopkins (81 Cal. 551, 22 Pac. 892), 42. Hurlburt v. Lake Shore & M. S. R. Co. (2 I. C. C. 122, 2 I. C. R. 81), 392, 455. Huse V. Glover (119 U. S. 543, 30 L. Ed. 487, 7 Sup. Ct. 313), 56. Hussey v. Chicago, R. I. & P. R. Co. (14 I. C. C. 215), 416. Hutchinson Traffic Bureau v. C. R. I. & P. Ry. Co. (43 I. C. C. 689), 139a. Hydraulic Press Brick Co. v. M. & 0. R. Co. (19 I. C. C. 530), 96. Hydraulic Press Brick Co. v. St. Louis & S. F. R. Co. (13 I. C. C. 342), 346. I. 111. C. R. Co. V. Brooks-Scanlon Co. (241 Fed. 445, 154 C. C. A. 277), 170. 111. Cent. R. Co. v. Henderson Elevator Co. (138 Ky. 220 127 S. W. 779), 212. 111. Cent. R. Co. v. Henderson Elevator Co. (226 U. S. 441, 57 L. Ed. 290, 33 Sup. Ct. 176), 204, 212, 358. 111. C. R. Co. V. Hoppes & Sons (233 Fed. 135, 358), 346a. Table of Cases Cited. 71 [References are to Sections.] 111. Cent. R. Co. v. Illinois (163 U. S. 142, 41 L. Ed. 107, 16 Sup. Ct. 1096), 21. 111. Cent. R. Co. v. Int. Com. Com. (206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700), 63, 90, 92, 102, 109, 170, 197, 207, 308, 312, 339, 346, 395, 406, 486. 111. Cent. R. Co. v. Int. Com. Com. (173 Fed. 930), 222 309. 111. Cent. R. Co. v. Louisiana R. R. Com. (236 U. S. 157, 59 L. Ed. 517, 35 Sup. Ct. 275), 12, 14, 41, 192. 111. C. R. Co. V. Messina (240 U. S. 395, 60 L. Ed. 709, 36 Sup. Ct. 368), 342. 111. Cent. R. Co. v. Mississippi R. R. Com. (138 Fed. 327, 70 C. C. A. 617), 9. 111. Cent. R. Co. v. Mulberry Hill Coal Co. (257 111. 80, 100 N. E. 151), 174, 296, 405. 111. Cent. R. Co. v. Mulberry Hill Coal Co. (238 U. S. 275, 59 L. Ed. 1306, 35 Sup. Ct. 760), 25, 174, 175, 198, 296. 111. Cent. R. Co. v. Public Utilities Com. of 111. (245 U. S. 493, 62 L. Ed. 425, 38 Sup. Ct. 170), 44, 308b, 323, 335. Ilwaco Ry. & Nav. Co. v. Oregon S. R. & U. N. Ry. Co. (57 Fed. 673, 6 C. C. A. 495), 346, 347. Imperial Coal Co. v. Pittsburg & L. E. R. Co. (2 I. C. C. 618, 2 I. C. R. 436), 105, 348. Imperial Film Exchange v. General Film Co. (244 Fed. 985), 492. Import Rates on Manganese Ore (25 I. C. C. 663), 345. Independent Refiners' Asso. v. Penn. R. Co. (6 I. C. C. 52, 4 1. C. R. 162, 5 I. C. C. 415, 2 I. C. R. 294), 214, 345, 416. Independent Refiners' Asso. v. Western N. Y. & P. R. Co. (5 I. C. C. 415, 4 I. C. R. 162), 345, 352. Independent Refiners' Asso. v. Western N. Y. & P. R Co. (6 I. C. C. 378), 335, 345, 383, 407, 408. Indiana Mfg. Co. v. J. I. Case Threshing Mach. Co. (148 Fed. 21), 486. Indiana Steel & Wire Co. v. C. R. I. & P. R. Co. (16 I. C. C. 155), 145, 345. Indianapolis Freight Bureau v. Cleveland, C. C. & St. L. Ry. Co. (15 I. C. C. 504), 118, 346. Industrial Railways Case (29 I. C. C. 212, 32 I. C. C. 129, 34 I. C. C. 596), 140, 171, 193, 232, 346. Ingersoll & Bro. v. McColl (204 Fed. 147), 486. Inland Nav. Co. v. Wabash Ry. Co. (43 I.'C. C. 588), 375. mman v. St. L. S. W. R. Co. (14 Tex. Civ. App. 39, 37 S. W. 37), 17. Inman, Akers & Inman v. A. C. L. R. Co. (32 I. C. C. 146), 404. Interior Iowa Cities Case (28 I. C. C. 64), 118. 72 Table of Cases Cited, I References are to Sections.] Intermountain Rates Cases (234 U. S. 476, 58 L. Ed. 1408, 34 Sup. Ct. 986), 244. Int. & G. N. R. Co. V. Anderson County (246 U. S. 424. 62 L. Ed. 807, 38 Sup. Ct. 370), 9. International & G. N. R. Co. v. R. R. Com. of Tex. (99 Tex. 332. 89 S. W. 961, 86 S. W. 16), 13, 17. International Coal Mining Co. v. Penn. R. Co. (152 Fed. 551), 383. International Coal Mining Co. v. Penn. R. Co. (162 Fed. 996), 134. Incernational Harvester Co. v. Kentucky (147 Ky. 564, 795, 144 S. W. 1064, 146 S. W. 12, 148 Ky. 572, 147 S. W. 1199), 486. International Harvester Co. v. Ky. (234 U. S. 216, 58 L. Ed. 1284, 34 Sup. Ct. 853), 486. International Harvester Co. v. Missouri (237 Mo. 369, 141 S. W. 672), 486. International Harvester Co. v. Missouri (234 U. S. 199, 58 L. Ed. 1276, 34 Sup. Ct. 854), 486. International Harvester Co. v. Oliver (192 Fed. 59), 486. International Paper Co. v. D. & H. Co. (33 I. C. C. 270) 65, 335. International Paper Co. v. Massachusetts (246 U. S. 135. 62 L. Ed. 624, 38 Sup. Ct. 292), 59. International Text Book Co. v. Lynch (81 Vt. 101, 60 Atl. 541), 2. International Text Book Co. v. Pigg (217 U. S. 91, 54 L. Ed. 678. 30 Sup. Ct. 481), 2. Interstate Com. Com. v. Ala. Mid. R. Co. (69 Fed. 227). 339, 346, 348. 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), 93, 339, 345, 346, 348. Int. Com. Com. v. Ala. Mid. R. Co. (168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45), 93, 128, 137, 139, 153, 183, 199, 309. 312, 339, 345, 346, 348, 406. Int. Com. Com. v. Atchison, T. & S. F. R. Co. (50 Fed. 295), 248, 406. Int. Com. Com. v. Atchison, T. & S. F. R. Co. (149 U. S. 264. 37 L Ed. 727, 13 Sup. Ct. 837), 388. Int. Com. Com. v. Atchison, T. & S. F. R. Co. (234 U. S. 294, 58 L. Ed. 1319, 34 Sup. Ct. 814), 193, 197. Int. Com. Com. v. Baird (194 U. S. 25, 48 L. Ed. 860, 24 Sup. Ct. 563), 130, 219, 299, 310, 389, 392, 458, 469. Int. Com. Com. v. Baltimore & O. R. Co. (43 Fed. 37, 3 I. C. R. 192), 88, 128, 144, 339, 345, 346, 358, 442, 444. Int. Com. Com. v. Baltimore & O. R. Co. (145 U. S. 263. 36 L. Ed. 699, 4 I. C. R. 92, 12 Sup. Ct. 844), 93, 128. 133. 135, 136, 144, 185, 339, 345, 346, 358, S88, 442, 444. Int. Com. v. Baltimore & O. R. Co. (225 U. S. 326, 57 L. Ed. 1107, 32 Sup. Ct. 742), 138, 313, 345, 460. Table of Cases Cited. 73 [References are to Sections.] Int. Com. Com. v. Bellaire, Z. & C. Ry. Co. (77 Fed. 942), 335, 432. Int. Com. Com. v. Brimson (154 U. S. 447, 38 L. Ed. 1047, 14 Sup. Ct. 1125), 63, 219, 299, 310, 335, 389, 390. Int. Com. Com. v. Chesapeake & O. Ry. Co. (128 Fed. 59), .3.45. Int. Com. Com. v. Chicago & A. R. Co. (215 U. S. 479. 54 L. Ed. 291, 30 Sup. Ct. 163), 175, 198, 222, 313, 395. Int. Com. Com. v. Chicago, B. & Q. R. Co. (94 Fed. 272), 406. Int. Com. Com. v. Chicago, B. & Q. R. Co. (98 Fed. 173), 335, 337. Int. Com. Com. v. Chicago, B. & Q. R. Co. (103 Fed. 249, 43 C. C. A. 209), 335, 337. Int. Com. Com. v. Chicago, B. & Q. R. Co. (186 U. S. 320, 46 L. Ed. 1182, 22 Sup. Ct. 824), 10, 80, 80a, 358, 406. Int. Com. Com. v. Chicago, B. & Q. R. Co. (218 U. S. 113, 54 L. Ed. 959, 30 Sup. Ct. 660), 226, 463. Int. Com. Com. v. Chicago, G. W. Ry. Co. (141 Fed. 1003), 85, 88, 90, 91, 128, 339, 346. Int. Com. Com. v. Chicago, G. W. Ry. Co. (209 U. S. 108, 52 L. Ed. 705, 28 Sup. Ct. 493), 85, 93, 102, 105, 128, 339, 3-46, 348. Int. Com. Com. v. Chicago, R. I. & P. Ry. Co. (218 U. S. 88, 54 L. Ed. 946, 30 Sup. Ct. 651), 107, 109, 125, 130, 207, 222, 226, 312, 313, 463. Int. Com. Com. v. Cincinnati, H. & D. R. Co. (146 Fed. 559), 102, 339, 345, 394, 406. Int. Com. Com. v. Cincinnati, H. & D. R. Co. (206 U. S. 142, 51 L. Ed. 995, 27 Sup. Ct. 648), 102, 339. Int. Com. Com. v. Cincinnati, N. O. & T. P. Ry. Co. (56 Fed. 925), 335, 348, 406. Int. Com. Com. v. Cincinnati, N. O. & T. P. Ry. Co. (64 Fed. 981, 13 U. S. App. 700), 335, 389, 394, 406. Int. Com. Com. v. Cincinnati, N. O. & T. P. Ry. Co. (76 Fed. 183), 339, 352, 395. Int. Com. Com. v. Cincinnati, N. O. & T. P. Ry. Co. (162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700), 152, 199, 335, 348. Int. Com. Com. v. C. N. O. & T. P. Ry. Co. (167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896), 61. Int. Com. Com. v. Cincinnati, N. O. & T. P. Ry. Co. (167 U. S. 479, 42 L. Ed. 243, 17 Sup. 896), 5, 43, 61. 63, 80, 222, 239, 389, 395. Int. Com. Com. v. Cincinnati, P. & V. R. Co. (124 Fed. 624), 346. Int. Com. Com. v. Clyde S. S. Co. (181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512), 153, 199, 345, 346, 348, 406. Int. Com. Com. v. D. L. & W. R. Co. (64 Fed. 723), 346. 386, 406. ]nt. Com. Com. v. D. L. & W. R. Co. (166 Fed. 499), 346. 74 Table of Cases Cited. [References are to Sections.] Int. Com. Com. v. D. L. & W. R. Co. (216 U. S. 531, 54 L. Ed. 605, 30 Sup. Ct. 415), 191, 312, 338, 344, 345. Int Com. Com. v. D. L. & W. R. Co. (220 U. S. 235, 55 L. Ed. 448, 31 Sup. Ct. 392), 138, 159, 222, 313, 344, 463. Int. Com. Com. v. Detroit, G. H. & M. R. Co. (167 U. S. 633, 17 Sup. Ct. 986, 42 L. Ed. 306), 128, 137, 153, 199, 335, 339, 345, 348, 358, 392. Int. Com. Com. v. Diffenbaugh (222 U. S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22), 16, 168, 197, 312, 346, 404. Int. Com. Com. v. East Tenn., Vt. & Ga. Ry. Co. (85 Fed. 107), 339, 346, 348, 406. Int. Com. Com. v. East Tenn., Va. & Ga. Ry. Co. (99 Fed. 52, 39 C. C. A. 413), 346, 348. Int. Com. Com. v. Goodrich Transit Co. (224 U. S. 194, 56 L. Ed. 729, 32 Sup. Ct. 436), 27, 63, 65, 69, 220, 226, 235, 301, 310, 313, 314, 432. Int. Com. Com. v. Harriman (157 Fed. 432), 390, 432. Int. Com. Com. v. Humboldt S. S. Co. (224 U. S. 474, 56 L. Ed. 849, 32 Sup. Ct. 556), 68, 301, 335. Int. Com. Com. v. I. C. R. Co. (215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. 155), 174, 175, 198, 222, 309, 311, 313, 346, 395, 396. Int. Com. Com. v. Lake Shore & M. S. R. Co. (134 Fed. 942), 266, 339, 406. Int. Com. Com. v. Lake Shore & M. S. R. Co. (202 U. S. 613, 50 L. Ed. 1171, 26 Sup. Ct. 865), 266. Int. Com. Com. v. Lehigh Valley Ry. Co. (49 Fed. 177), 406. Int. Com. Com. V. Lehigh Valley Ry. Co. (74 Fed. 784), 339, 395. Int. Com. Com. v. Louisville & N. R. Co. (73 Fed. 409), 339, 345, 346, 392, 395, 406. Int. Com. Com. v. Louisville & N. R. Co. (101 Fed. 146), 406. Int. Com. Com. v. Louisville & N. R. Co. (102 Fed. 709), 346, 438, 406, Int. Com. Com. v. Louisville & N. R. Co. (118 Fed. 613), 181, 214, 346, 406. Int. Com. Com. v. Louisville & N. R. Co. (190 U. S. 273, 47 L. Ed. 1047, 23 Sup. Ct. 687), 93, 128, 153, 183, 199, 346, 348. Int. Com. Com. v. Louisville v. N. R. Co. (227 U. S. 88, 57 L. Ed. 431, 33 Sup. Ct. 185), 63, 103, 105, 222. 254, 256, 308a, 309, 313, 315, 316, 392, 395, 396, 443, 463. Int. Com. Com. v. Nashville, C. & St. L. Ry. Co. (120 Fed. 934), 339, 346, 443, 463. Int. Com. Com. v. N. P. R. Co. (216 U. S. 538, 54 L. Ed. 608, 30 Sup. Ct. 417), 120, 195, 313, 400, 463. Int. Com. Com. v. Peavy (222 U. S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22), 197. Table of Cases Cited. 75 [ References are to Sections.] Int. Com. Com. v. Philadelphia & R. R. Co. (123 Fed. 9G9), 392. Int. Com. Com. v. Reichmann (145 Fed. 2.>5), 335. Int. Com. Com. v. Southern Pac. Co. (74 Fed. 42), 462. Int. Com. Com. v. Southern Pac. Co. (123 Fed. 597), 338, 352, 40t;. Int. Com. Com. v. Southern Pac. Co. (132 Fed. 829), 352, 353, 358, 406. Int. Com. Com. v. Southern Pac. Co. (137 Fed. 606), 352, 406. Int. Com. Com. v. Southern Ry. Co. (105 Fed. 703), 348, 406. Int. Com. Com. v. Southern Ry. Co. (117 Fed. 741), 346. Int. Com. Com. v. Southern Ry. Co. (122 Fed. 800, 60 C. C. A. 540), 346. Int. Com. Com. v. Stickney (215 U. S. 98, 54 L. Ed. 112, 30 Sup. Ct. 66), 10, 312, 358. Int. Com. Com. v. Texas & Pac. Ry. Co. (52 Fed. 187), 339, 345, 346, 358. Int. Com. Com. v. Texas & Pac. Ry. Co. (57 Fed. 948, 6 C. C. A. 653, 20 U. S. App. 1, 4 I. C. R. 408), 339, 345, 346, 350, 358, 462. Int. Com. Com. v. Union P. R. Co. (222 U. S. 541, 56 L. Ed. 308, 32 Sup. Ct. 108), 309, 311, 315, 316, 463. Int. Com. Com. v. United States ex rel. Humboldt S. S. Co. (224 U. S. 474, 56 L. Ed. 849, 32 Sup. Ct. 556), 68, 301, 308a, 335. Int. Com. Com. v. Western & A. R. Co. (88 Fed. 186). 153, 199, 345, 346, 348. Int. Com. Com. v. Western & A. R. Co. (93 Fed. 83, 35 C. C. A. 217), 345, 346, 348, 389. Int. Com. Com. v. Western & A. R. Co. (181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512), 183, 345, 346, 389. Int. Com. Com. v. Western N. Y. & P. R. Co. (82 Fed. 192), 406. Interstate Packing Co. v. C. & N. W. Ry. Co. (42 I. C. C. 189), 169. Interstate Ry. Co. v. Mass. (207 U. S. 79, 52 L. Ed. Ill, 28 Sup. Ct. 26), 185, 345. Interstate Remedy Co. v. Am. Ex. Co. (16 I. C. C. 436). 358. Interstate Stock Yards Co. v. Indianapolis U; Ry. Co. (99 Fed. 472), 304, 335, 346. Investigation & Suspension Docket 26 (Coal Rates) (22 I. C. C. 604), 88. Investigation of Advances in Rates on Grain (21 I. C. C. 22), 88, 91, 99. Investigation of Alleged Unreasonable Rates on Meat (22 I. C. C. 160), 91. Investigation of Alleged Unreasonable Rates on Meat (23 I. C. C. 656), 142. Iowa & S. W. Ry. Co. v. C. B. & Q. R. Co. (32 I. C. C. 172, 42 I. C. C. 389), 143, 347, 391b. 76 Table of Cases Cited. I References are to Sections.] Iowa Railroad Com. v. A. T. & S. F. Ry. Co. (36 I. C. C. 79), 440. Iowa V. B. & 0. R. Co. (46 I. C. C. 595), 118. Iron Ore Rate Cases (41 I. C. C. 181), 85, 89a, 358. Irvine v. Postal Tel. & Cable Co. (173 Pac. 487), 182. Irving V. Neal (209 Fed. 471), 489. J. Jackson Chamber of Commerce v. N. Y. C. R. Co. (42 I. C. C. 155), 396b. Jackson v. St. Louis, A. & T. R. Co. (1 I. C. C. 184, 1 I. C. R. 599), 392. Jacobson v. Wis. M. & P. R. Co. (71 Minn. 519, 74 N. W. 893, 40 L. R. A. 389, 70 Am. St. Rep. 358), 13, 14, 49. Jacoby v. P. R. Co. (19 I. C. C. 392), 175, 208, 408. James & Abbott v. Canadian Pac. R. Co. (5 I. C. C. 612, 4 I. C. R. 274), 383. James & Mayer Buggy Co. v. Cincinnati, N. 0. & T. P. R. Co. (4 I. C. C. 744, 2 I. C. R. 625, 3 I. C. R. 682), 335, 348. James v. W. & O. D. Co. (44 I. C. C. 570), 337, 396a. Janesville Clothing Co. v. C. & N. W. R. Co. (26 I. C. C. 628), 209, 244, 348. Jannen v. State (42 Tex. Civ. App. 631, 51 S. W. 1126, 62 S. W. 419), 37. Jayne v. Loder (149 Fed. 21, 78 C. C. A. 653, 7 L. R. A. (N. S.) 984), 492. Jerome Hill Cotton Co. v. Missouri, K. & T. R. Co. (6 I. C. C. 601), 49, 339, 348. Jewett Bros. & Jewett v. Chicago, M. & St. P. R. Co. (156 Fed. 160), 304, 442. John D. Park & Sons Co. v. Hartman (153 Fed. 24, 82 C. C. A. 158, 12 L. R. A. (N. S.) 1135), 486. Johnson-Brown Co. v. D. L. & W. R. Co. (239 Fed. 590), 182, 346a, 358. Johnson v. Chicago & P. El. Co. (119 U. S. 388, 30 L. Ed. 447, 7 Sup. Ct. 254), 56. Johnson v. Chicago, St. Paul, etc., R. Co. (9 I. C. C. 221), 346, 350, 358, 383. Johnson v. N. Y., N. H. & H. R. Co. (Ill Me. 263, 88 Atl. 988), 371. Johnson v. Pensacola & P. R. Co. (16 Fla. 623), 133. Johnson v. Seaboard A. L. R. Co. (73 S. C. 36, 52 S. E. 644), 9, 30. Johnson v. Southern Pac. Co. (196 U. S. 1, 49 L. Ed. 363, 25 Sup. Ct. 158), 403. Johnson v. Southern Ry. Co. (69 S. C. 322, 48 S. E 260), 34. Johnson v. United States (215 Fed. 679), 2. Johns-Pratt Co. v. Sachs & Co. (176 Fed. 738), 486. Table of Cases Cited. 77 [References are to Sections.] Johnston-Larimer Dry Goods Co. v. Atchison, T. & S. F. R. Co. (6 I. C. C. 568), 346, 348. Johnston-Larimer Dry Goods Co. v. Atchison, T. & S. F. R. Co. (1^ I. C. C. 47), 346, 348. Johnston-Larimer Dry Goods Co. v. Atchison, T. & S. F. R. Co. (12 I. C. C. 188), 416. Johnston-Larimer Dry Goods Co. v. New York & Tex. S. S. Co. (12 L C. C. 58), 346, 348. Johnston-Larimer Dry Goods Co. v. Wabash R. Co. (12 L C. C. 51), 346. Joice & Co. V. 111. Cent. R. Co. (15 I. C. C. 239), 383. Joint Rates with Birmingham S. Ry. Co. (32 I. C. C. 110), 170. Joint Traffic Asso. Case (171 U. S. 505, 569, 43 L. Ed. 259, 19 ^up. Ct. 25, 1 Fed. Anti-Trust Dec. 859), 92, 327, 352. Jones V. Eastern Counties R. Co. (3 C. B. N. S. 718), 144. Jones V. Van Winkle (131 Ga. 336, 62 S. E. 2S6), 489. Joynes v. P. R. Co. (17 I. C. C. 361), 208, 395. Jubitz V. Southern Pac. Co. (27 I. C. C. 44), 117, 213. Junod V. Chicago & N. W. Ry. Co. (47 Fed. 290), 348, 383. Jurisdiction Over Urban Elec. Lines (33 I. C. C. 536), 337. K. Kalispel Lumber Co. v. Great N. R. Co. (157 Fed. 845), 304, 307, 442. Kambeitz v. United States (262 Fed. 378, — C. C. A. — ), 334. ICane v. New Jersey (242 U. S. 160, 61 L. Ed. 222, 37 Sup. Ct. 30), 594. Kanotex Refining Co. v. A. T. & S. F. R. Co. (34 I. C. C. 271), 41, 68, 335. Kansas v. A. T. & S. F. R. Co. (27 I. C. C. 073), 99. Kansas-California Flour Rates (29 I. C. C. 459, 32 I. C. C. G02), 91. Kansas, C. M. & B. R. Co. v. Stile (242 U. S. Ill, 61 L. Ed. 176. 37 Sup. Ct. 58), 59. Kansas City & M. Ry. Co. v. St. L. & S. F. Ry. Co. (46 I. C. C. 464), 146a. Kansas City v. K. C. V. & T. R. Co. (24 I. C. C. 22), 337. 400 Kansas City Hay Dealers' Asso. v. Missouri Pac. Ry. Co. (14 I. C. C. 597), 115, 339. Kansas City S. R. Co. v. Albers Com. Co. (79 Kan. 59. 99 Pac. 819), 212. Kansas City S. R. Co. v. Albers Com. Co. (223 U. S. 573, 56 L. Ee. 556, 32 Sup. Ct. 316), 204, 212, 358. Kansas City S. R. Co. v. Anderson (233 U. S. 825. 58 L. Ed. 983, 34 Sup. Ct. 599, 104 Ark. 500, 148 S. W. 58), 35. 78 Table of Cases Cited. [References are to Sections.] Kansas City S. R. Co. v. Carl (227 U. S. 639, 57 L. Ed 68S, 33 Sup. Ct. 391), 32, 439. Kansas City S. R. Co. v. State (27 Ok. 806, 117 Pac. 207), 30. Kansas City S. R. Co. v. Tonn (102 Ark. 20, 143 S. W. 577), 216, 297. Kansas City S. R. Co. v. United States (231 U. S. 423, 58 L. Ed. 296, 34 Sup. Ct. 125, 204 Fed. G41), 27, G3, 64, 66, 220, 226, 235. 252. 301, 313, 314, 335. p:ansas City S. R. Co. v. United States (204 Fed. 641, 250 U. S. — , 64 L. Ed. — , 40 Sup. Ct. — ), 233, 264, 432. Kansas City S. W. R. Co. v. Kaw-Valley Drainage Dist. (233 U. S. 75, 58 L. Ed. 857, 34 Sup. Ct. 564), ^4. Kansas-Iowa Brick Rate (28 I. C. C. 285), 399. Kansas City Traffic Bureau v. A. T. & S. F. R. Co. (15 I. C. C. 491), 266. Kansas City Transp. Co. v. A. T. & S. F. R. Co. (16 I. C. C. 195, 204), 107, 118. Kauffman v. Mo. Pac. Ry. Co. (4 I. C. C. 417, 3 I. C. R. 400), 346. Kauffman Commercial Club v. T. & N. O. R. Co. (31 I. C. C. 167), 183. Kaul Lumber Co. v. C. of G. R. Co. (20 I. C. C. 450), 170, 211. Kaw River Sand & Material Co. v. A. T. & S. F. Ry. Co. (42 I. C. C. 504), 399. Kellogg Toasted Corn Flakes Co. v. M. C. R. Co. (24 I. C. C. 604), 244, 348. Kellogg Toasted Corn Flake Co. v. Buck (208 Fed. 383), 486. Kemble v. Boston & A. R. Co. (8 I. C. C. 110), 335, 345, 348, 358. Kendall v. United States (12 Pet. 37 U. S. 584, 9 L. Ed. 1181), 301. Kennebec Water Co. v. Waterville (97 Me. 185, 54 Atl. 6), 84. Kentucky & Indiana Bridge Co. v. Louisville & N. R. Co. (37 Fed. 567, 2 L. R. A. 289, 2 I. C. R. 351), 65, 149, 294, 335, 337, 345, 347, 389, 395, 397, 406. Kentucky & Indiana Bridge Co. v. Louisville & N. R. Co. (2 I. C. C. 162, 2 I. C. R. 102), 335, 337, 347. Keokuk Packet Co. v. Keokuk (95 U. S. 80, 24 L. Ed. 377), 56. Ketchum v. Denver & R. G. Co. (248 Fed. 106, 160 C. C. A. 246), 343, 492, 513. Kiel Woodenware Co. v. C. M. & St. P. R. Co. (18 I. C. C. 242), 358. Kile & Morgan v. Deepwater Ry. Co. (15 I. C. C. 235). 218, 408. Kindel v. Adams Ex. Co. (13 I. C. C. 475), 83, 90, 111, 339, 346. Kindel v. Atchison, T. & S. F. Ry. Co. (9 I. C. C. 606), 83, 346, 348 Kindel v. Atchison, T. & S. F. R. Co. (8 I. C. C. 608), 346, 348. Kindel v. New York, N. H. & H. R. Co. (15 I. C. C. 555), 117. Table op Cases Cited. 79 [References are to Sections.] King V. New York, N. H. & H. R. Co. (4 I. C. C. 251, 3 I. C. R. 272), 348. Kinnavey v. Terminal R. Assu. of St. Louis (81 Fed. 802), 339, 345, 358, 383. Kinsley v. Buffalo, N. Y. & P. R. Co. (37 Fed. 181), 345, 346. Kinzell v. C. M. & S. P. R. Co. (— U. S. — , 63 L. Ed. — , 39 Sup. Ct. — ), 24. Kirby v. C. & A. R. Co. (241 111. 418, 90 N. E. 252), 346. Kirkpatrick v. State (138 Ga. 794, 76 S. E. 53), 58. Kiser v. Cent, of Ga. Ry. Co. (158 Fed. 193), 304, 395, 442. Knauer v. United States (2.^7 Fed. 8, 150 C. C. A. 210), 486, 500. Knott V. C. B. & Q. R. Co. (230 U. S. 474, 57 L. Ed. 1571, 33 Sup. Ct. 975), 45, 84, 480c. Knoxville v. Knoxville Water Co. (212 U. S. 1, 53 L. Ed. 371, 29 Sup. Ct. 148), 45, 47, 50, 82, 85. Knoxville Water Co. v. Knoxville (189 U. S. 434, 47 L. Ed. 887, 23 Sup. Ct. 531), 45. Knudsen Ferguson Fruit Co. v. Chicago, St. P. M. & O. R. Co. (149 Fed. 973, 79 C. C. A. 483), 80, 205, 215, 383. Knudsen-Ferguson Fruit Co. v. Chicago, St. P. M. & O. R. Co. (204 U. S. 670, 51 L. Ed. 672, 27 Sup. Ct. 786), 205, 383. Knudsen-Ferguson Fruit Co. v. Mich. Cent. R. Co. (148 Fed. 968, 79 C. C. A. 483), 358, 383. Koch Secret Service v. Louisville & N. R. Co. (13 I. C. C. 523), 346, 383. Koehler, Ex parte (30 Fed. 867), 335, 340. Koehler, Ex parte (31 Fed. 315, 12 Sawy. 446), 346, 348. Kohl V. United States (91 U. g. 367, 23 L. Ed. 449). 7. Kroger Grocery & Baking Co. v. Retail Clerks (250 Fed. 890), 486, 517. Kyle V. C. B. & Q. R. Co. (84 Neb. 621, 122 N. W. 37), 20. L. La Crosse Mfrs. & Jobbers Union v. Chicago, M. & St. P. R. Co. (11 L C. C. 629, 2 I. C. R. 9), 106, 339. La Crosse Shippers' Assn. v. C. & N. W. Ry. Co. (38 I. C. C. 453, 44 I. C. C. 512), 44, 134. LaFarier v. G. T. R. Co. (84 Me. 284, 24 Atl. 848), 37. LaFayette Chamber of Commerce v. A. & V. Ry. Co. (39 L C. C. 619), 399. LaFayette Chamber of Commerce v. L. W. R. Co. (41 I. C. C. 297), 348. La Grange Chamber of Commerce v. A. & W. P. R. Co. (28 I. C C. 178), 108. 80 Table of Cases Cited. I References are to Sections.] Laird v. B. & O. R. Co. (121 Md. 193, 88 Atl. 348), 51. Lake & Rail Rate Cancellations (44 I. C. C. 745, 42 I. C. C. 513), 65, 396b. Lake Cargo Coal Rate Case (22 I. C. C. 604), 99. Lake E. & W. R. Co. v. Cluggish (143 Ind. 347), 42 N. E. 743), 54. Lake E. & W. R. Co. v. Smith (61 Fed. 885), 54. Lake Line Applications Panama Canal Act (33 L C. C. 699), 354. Lake Shore & M. S. R. Co. v. Cincinnati, S. & C. R. Co. (30 Ohio St. 604), 45. Lake Shore & M. S. R. Co. v. Ohio (165 U. S. 305, 41 L. Ed. 747, 17 Sup. Ct. 357), 53. Lake Shore & Mich. So. R. v. Ohio (173 U. S. 285, 43 L. Ed. 702, 19 Sup. Ct. 465), 21. Lake Shore & Mich. So. R. Co. v. Smith (173 U. S. 684, 43 L. Ee. 858, 19 Sup. Ct. 565), 38, 442. Lake Shore & Mich. So. R. Co. v. Smith (114 Mich. 460, 72 N. W. 328), 38. Lakewood Engr. Co. v. N. Y. C. R. Co. (259 Fed. 61), 364. Lamar v. United States (260 Fed. 561, — C. C. A. — , 251 U. S. — , 64 L. Ed. — , 40 Sup. Ct. — ), 486. Lamb-Fish Lumber Co. v. Transcontinental Frt. Bureau (53 L C. C. 217. Lamb, McGregor & Co. v. C. & N. W. R. Co. (22 I. C. C. 346), 213. Landon v. Public Util. Com. of Kansas (234 Fed. 152, 242 Fed. 658, 245 Fed. 950), 2, 44, 45, 46, 335. Lane v. Leiter (237 Fed. 149), 486. Langdon v. Penn. R. Co. (194 Fed. 48G), 140. Laning-Harris Coal & Grain Co. v. Me. ?ac. Ry. Co. (13 L C. C. 154), 117, 339, 383. Laning-Harris Coal & Grain Co. v. St. Louis & S. F. R. Co. (15 I. C. C. 37), 205, 207, 383. Larabee Flour Mills Co. v. Mo. Pac. Ry. Co. (74 Kan. 808, 88 Pac. 72), 9, 296. larrison v. Chicaoo, etc., R. Co. (I'l. C. C. 1-47, 1 L C. R. 369), 345, 368, 444. Larsen Canning Co. (Wm.) v. Chicago & N. W. Ry. Co. (13 I. C. C. 286), 383. Larson Lumber Co. v. G. N. R. Co. (21 I. C. C. 474), 358. Larus & Bros. Co. v. American Tob. Co. (163 Fed. 712), 486. La Salle, etc., R. Co. v. Chicago & N. W. Ry. Co. (13 I. C. C. 610), 205, 206, 358, 383, 392. Table of Cases Cited. 81 [References are to Sections.] Laser Grain Co. v. United States (250 Fed. 826), 385. Lathrop Lumber Co. v. A. G. S. R. Co. (27 I. C. C. 250), 69, 210. Latta V. C, St. P., M. & 0. R. Co. (172 Fed. 850, 97 C. C. A. 198), 439. Laughter & Fisher v. McLain (229 Fed. 280), 58. Laundrymen's Nat'l. Assn. v. Adams Ex. Co. (45 I. C. C. 361), 146a. Lawlor v. Loewe (209 Fed. 721, 126 C. C. A. 445), 486, 492. Lawlor v. Loewe (235 U. S. 522, 59 L. Ed. 341, 35 Sup. Ct. 170) 486, 492. Leech v. Louisiana (214 U. S. 175, 29 S. Ct. 552, 53 L. Ed. 956), 56. Legality of Express Franks (50 I. C. C. 599), 342. Lehigh C. & N. Co. v. P. R. R. Co. (50 I. C. C. 543), 404. Lehigh V. R. Co. v. Am. Hay Co. (219 Fed. 539, 135 C. C. A. 307), 208, 383, 394. Lehigh V. R. Co. v. Clark (207 Fed. 717, 125 C. C. A. 235), 206, 208, 251, 317, 383, 394, 407. Lehigh V. R. Co. v. Meeker (211 Fed. 785), 317, 383, 394, 407, 408. Lehigh V. R. Co. v. Penn. (145 U. S. 192, 36 L. Ed. 672, 4 1. C. R. 87, 12 Sup. Ct. 806), 69, 335. Lehigh V. R. Co. v. Rainey (112 Fed. 487), 345, 346, 383. Lehigh V. R. Co. v. United States (187 Fed. 1006, 109 C. C. A. 211), 481. Lehigh V. R. Co. v. United States (188 Fed. 879), 25, 138, 186, 371. Lehigh V. R. Co. v. United States (243 U. S. 412, 444, 61 L. Ed. 819. 839, 37 Sup. Ct. 397), 308a, 309, 312, 354, 364. Lehmann-Higginson Gro. Co. v. Atchison, T. & S. F, R. Co. (10 I. C. C. 460), 346, 348. Lehmann, Higginson & Co. v. Southern Pac. Co. (4 I. C. C. 1, 3 I. C. R. 80), 339, 358, 361. Lehmann, Higginson & Co. v. Tex. & Pac. Co. (5 I. C. C. 44, 3 I. C. R. 706), 348, 350, 356, 358. Leisy v. Hardin (135 U. S. 100, 34 L. Ed. 128, 10 Sup. Ct. 681), 58. Lennon, Ex parte (G4 Fed. 320, 22 U. S. App. 561), 347 Lennon, Ex parte (166 U. S. 548, 41 L. Ed. 1110, 17 Sup. Ct. 658), 347. Leonard v. Chicago, M. St. P. Ry. (12 L C. C. 492), 383. Leonard v. Kansas City S. R. Co. (13 I. C. C. 573), 335. Leovy v. United States (92 Fed. 344, 34 C. C. A. 392. 177 U. S. 021, 44 L. Ed. 914, 20 Sup. Ct. 797), 53. Lexington Gro. Co. v. So. Ry. Co. (136 N. C. 396, 48 S. E. 801), 25. Lighterage & Storage Regulations at New York (35 L C. C. 47), 140. Lilly Co. V. N. P. R. Co. (64 Wash. 689, 117 Pac. 401), 297. Lincoln Board of Trade v. B. & M. R. R. Co. (2 L C. C. 147, 2 I. 0. R. 95), 346. 82 Table of Cases Cited. [References are to Sections.] Lincoln Creamery Co v. Union Pac. R. Co. (5 I. C. C. 15G, 3 I. C. ll. 794), 110, 339. Lindsay Bros. v. B. & 0. S. W. Ry. Co. (16 I. C. C. 6), 209. Lindsay Bros. v. Grand Rapids & Ind. Ry. Co. (15 I. C. C. 182), 339. Lippman & Co. v. 111. Cent. R. Co. (2 I. C. C. 584. 2 I. C. R. 414), 105, 339, 345. Little Rock & M. R. Co. v. East Tenn., Va. & Ga. Ry. Co. (3 I. C. C. 1, 2 I. C. R. 454), 338. Little Rock & M. R. Co. v. East Tenn., Va. & Ga. Ry. Co. (47 Fed. 771), 338, 346, 347, 389. Little Rock & M. R. Co. East Tenn., Va. & Ga. Ry. Co. (159 U. S. 698, 40 L. Ed. 311, 16 Sup. Ct. 189), 346, 347. Little Rock, etc., R. Co. v. St. Louis, etc., R. Co. (41 Fed. 559), 347, 389, 397. Little Rock & M. R. Co. v. St. Louis, I. M. & S. Ry. Co. (59 Fed. 400), 149, 346, 347. 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), 149, 189, 346, 347. Little Rock Chamber of Commerce v. C. M. & St. R. Co. (26 I. C. C. 341), 99. Little Rock Freight Bureau v. Mo. Pac. Ry. Co. (51 I. C. C. 23), 181. Live Poultry & Dairy Shippers' Traffic Asso. v. A. T. & S R. Ry. Co. (49 I. C. C. 228), 259. Live Stock Classification (47 I. C. C. 335), 34a, 440. Live Stock from Nashville (48 I. C. C. 277), 109. Live Stock Rates from Colorado (35 I. C. C. 682), 259, 398. Loch-Lynn Construction Co. v. B. & 0. R. Co. (17 I. C. C. 396), 346. Locke's Appeal (72 Pa. St. 491), 54. Locomobile Co. v. Massachusetts (246 U. S. 146, 62 L. Ed. 631, 38 Sup. Ct. 298), 59. Loder v. Jayne (142 Fed. 1010, 2 Fed. Anti-Trust Dec. 563, 142 Fed. 216, 2 Fed. Anti-Trust Dec. 854), 486. Loeb v. Eastman Kodak Co. (183 Fed. 704, 106 C. C A. 142), 492. Loewe v. Lawlor (130 Fed. 633, 2 Fed. Anti-Trust Dec. 563, 142 Fed. 216, 2 Fed. Anti-Trust Dec. 854), 486. Loewe v. Lawlor (209 Fed. 721), 486, 492. Loewe V. Lawlor (208 U. S. 274, 52 L. Ed. 488, 28 Sup. Ct. 301), 486. 492. Loewe v. Lawlor (223 U. S. 729, 56 L. Ed. 633, 32 Sup. Ct. 527), 492. Loewe v. Lawlor (235 U. S. 522, 59 L. Ed. 341, 35 Sup. Ct. 170), 486, 492. Loftus v. Pullman Co. (18 I. C. C. 135), 88, 124. Table of Cases Cited. 83 [References are to Sections.] Loftus V. Pullman Co. (19 I. C. C. 102), 50. Logan et al. Com. of Northwestern Grain Asso. v. Chicago & N. W. R. Co. (2 I. C. C. 604, 2 L C. R. 431), 102, 339, 346. Logan Coal Co. v. Penn. R. Co. (154 Fed. 497), 175, 395. Long V. Miller (262 Fed. 362), 53. Long V. So. Ex. Co. (201 Fed. 441), 304, 443. Loomis V. Lehigh V. R. Co. (240 U. S. 43, 60 L. Ed. 517, 36 Sup. Ct. 228), 292, 294, 404. Looney v. Eastern Texas R. Co. (247 U. S. 214, 62 L. Ed. 1084, 38 Sup, Ct. 460), 44, 321. Lord V. Goodall, N. & P. S. Co. (102 U. S. 541, 26 L. Ed. 224), 335. Los Angeles Switching Case (234 U. S. 294, 58 L. Ed. 1319, 34 Sup. Ct. 814), 113. Lotsfreich v. C. R. & B. Co. (73 Ala. 306), 14. Loud V. South Caro. R. Co. (5 I. C. C. 529, 4 I. C. R. 205), 88, 339, 383. Louisiana & P. R. Co. v. United States (209 Fed. 244), 140. Louisiana R. & N. Co. v. R. R. Com. of La. (121 La. 849, 49 So. 884), 9. Louisiana v. Texas (176 U. S. 1, 44 L. Ed. 347, 20 Sup. Ct. 251), 58. Louisiana State Rice Milling Co. v. M. L. & T. R. Co. (34 I. C. C. 511), 440. Louisville B. of T. v. L. & N. R. Co. (40 I. C. C. 679), 12, 192, 338, 347. Louisville v. Cumberland Tel. Co. (225 U. S. 430, 56 L. Ed. 1151, 32 Sup. Ct. 741), 47, 50. Louisville & N. R. Co. v. Alabama (208 Fed. 35), 60. Louisville v. N. R. Co. v. Behlmer (169 U. S. 644, 42 L. Ed. 889, 18 Sup. Ct. 502), 93, 153, 199, 335, 406. Louisville & N. R. Co. v. Behlmer (175 U. S. 648, 44 L. Ed. 309, 20 Sup. Ct. 209), 92, 109, 128, 199, 312, 335, 348, 406. Louisville N. & R. Co. v. Bitterman (144 Fed. 34, 75 C. C. A. 192), 37. Louisville & N. R. Co. v. Central Stock Yards Co. (212 U. S. 132, 53 L. Ed. 441, 29 Sup. Ct. 246, 133 Ky. 148, 97 S. W. 778), 13, 14. Louisville & N. R.' Co. v. Cook Brewing Co. (223 U. S. 70, 56 L. Ed. 355, 32 Sup. Ct. 189, 172 Fed. 117, 96 C C. A. 322, 40 L. R. A. (N. S.) 798), 58, 296. Louisville & N. R. Co. v. Dickerson (191 Fed. 705, 112 C. C. A. 295), 218. Louisville & N. R. Co. v. Eubank (184 U. S. 27, 46 L. Ed. 416, 22 Sup. Ct. 277), 44, 52, 259. Louisville & N. R. Co. v. Finn (235 U. S. 601, 59 L. Ed. 379, 35 Sup. Ct. 147), 48, 101, 103. 84 Table of Cases Ctted. [References are to Sections.] Louisville & N. R. Co. v. Garrett (231 U. S. 298, 58 L. Ed. 229, 34 Sup. Ct. 48), 45, 47, 52, 84, 320, 453. Louisville & N. R. Co. v. Georgia (140 Ga. 817, 80 S. E. 327, ^nn. Gas. 1915A, 1018), 38. Louisville & N. R. Co. v. Higdon (234 U. S. 592, 58 L. Ed. 1484. 34 Sup. Ct. 948), 344. Louisville & N. R. Co. v. Hughes (201 Fed. 727), 9. Louisville & N. R. Co. v. Int. Com. Com. (108 Fed. 988, 46 C. C. A. 685), 511. Louisville & N. R. Co. v. Int. Com. Com. (184 Fed. 118), 63, 105, 254, 392. Louisville v. N. R. Co. v. Int. Com. Com. (195 Fed. 541), 63, 105. 222, 254, 392, 395. Louisville & N. R. Co. v. Kentucky (21 Ky. Law Rep. 232, 51 S. W. 164, 1012, 106 Ky. 633, 90 Am. St. Rep. 236), 52. Louisville & N. R. Co. v. Kentucky (161 U. S. 677, 40 L. Ed. 849, 16 Sup. Ct. 714), 11. Louisville & N. R. Co. v. Kentucky (183 U. S. 503, 46 L. Ed. 298, 22 Sup. Ct. 95), 52. Louisville & N. R. Co. v. Louisville Cement Co. (50 I. C. C. 538), 217. Louisville & N. R. Co. v. Melton (218 U. S. 36, 54 L. Ed. 921, 30 Sup. Ct. 676). 33. Louisville & N. R. Co. v. Mottley (211 U. S. 149, 53 L. Ed. 126, 29 Sup. Ct. 42), 39, 342. Louisville & N. R. Co. v. Mottley (219 U. S. 467, 55 L. Ed. 297, 31 Sup. Ct. 265, 34 L. R. A. (N. S.) 671), 38, 176, 182, 186, 303, 342, 358. Louisville & N. R. Co. v. Ohio Valley Tie Co. (242 U. S. 288, 61 L. Ed. 305, 37 Sup. Ct. 120), 207, 383, 393, 406. Louisville & N. R. Co. v. R. R. Com. of Ala. (208 Fed. 35), 320. Louisville & N. R. Co. v. Rice (247 U. S. 201, 62 L. Ed. 1071, 38 Sup. Ct. 429), 295. Louisville & N. R. Co. v. Scott (219 U. S. 209, 55 _L, Ed. 183, SI Sup Ct. 171), 439. Louisville & N. R. Co. v. United States (197 Fed. 58), 166. Louisville & N. R. Co. v. United States (207 Fed. 591). 222. Louisville & N. R. Co. v. U. S. (225 Fed. 571), 348, 349. Louisville & N. R. Co. v. United States (238 U. S. 1, 59 L. Ed. 1177, 35 Sup. Ct. 696), 102, 150, 309, 320, 347, 392, 395, 465. Louisville & N. R. Co. v. United States (242 U. S. 60, 61 L. Ed. 152, 37 Sup. Ct. 01, 245 U. S. 463, 62 L. Ed. 400, 38 Sup. Ct 141), 150, 154, 313, 321, 346, 347, 348. Table of Cases Cited. 85 [References are to Sections.] Louisville & N. R. Co. v. West Coast Naval Stores Co. (198 U. S. 483, 49 L. Ed. 1135, 25 Sup. Ct. 745), 149, 327. Louisville & N. R. Co. v. Western Un. Tel. Co. (207 Fed. 1, 124 C. C. A. 573), 7. Louisville Board of Trade v. I. C. & S. T. Co. (27 I. C. C. 499, 34 I, C. C. 640), 195, 338, 381, 397. Louisville, N. 0. & T. Ry. Co. v. Mississippi (66 Miss. 662, 5 L. R. A. 132, 6 So. 203, 2 I. C. C. 615. 14 Am. St. Rep. 509), 29. 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), 29. Loup Creek Colliery Co. v. Virginian Ry. Co. (12 I. C. C. 471), 120, 338, 339. Lourie Mfg. Co. v. C N. R. Co. (42 I. C. C. 448), 338. Love V. A. T. & S. F. R. Co. (185 Fed. 321, 107 C. C. A. 403, 220 U. S. 618), 49, 50. Lovelace Flour Mills Co. v. Mo. Pac. Ry. Co. (74 Kan. 808, 88 Pac. 72), 296. Low Wah Suey v. Backus (225 U. S. 460, 56 L. Ed. 1165, 32 Sup. Ct. 734), 316, 396. Lowe v. S. A. L. R. Co. (63 S. C. 248, 41 S. E. 297, 90 Am. St. 678), 17. Lowenstein v. Evans (69 Fed. 908, 1 Fed. Anti-Trust Dec. 598), 4S6. Lowry v. Tile, Mantel & Grate Asso. (98 Fed. 817. 1 Fed. Anti- Trust Dec. 995), 486. Lowry v. Tile, Mantel & Grate Asso. (106 Fed. 38, 2 Fed. Anti-Trust Dec. 53), 486, 492. Lull Carriage Co. v. K. & S. Ry. Co. (19 I. C. C. 15), 117. Lum V. G. N. R. Co. (21 L C. C. 558), 254, 255, 393. Lumber Rates from Helena, Ark. (41 I. C. C. 565), 100. Lumber Rates from North Pacific Coast (30 I. C. C. Ill), 121, 401. Lumber Rates Oregon & Washington to Eastern Points (29 I. C. C. 609), 375, 401. Lumber Rates from Texas (28 I. C. C. 471), 400. Lundquist v. Grand T. W. Ry. Co. (121 Fed. 915), 345. Lykes S. S. Co. v. Commercial Union (13 I. C. C. 310). 335. Lykins v. C. & O. R. Co. (209 Fed. 573, 126 C. C. A. 395), 453. Lyne v. Delaware, L. & W. R. Co. (170 Fed. 847), 383, 408. Lysaght v. Lehigh V. R. Co. (254 Fed. 351), 230, 440. M. Mac Loon v. Boston & M. R. Co. (9 I. C. C. 642), 181, 339, 345, 346. MacLoon v. Chicago & N. W. R. Co. (5 I. C C. 84, 3 I. C. R. 711), 206, 383, 406. 86 Table of Cases Cited. [References are to Sections.] McAlister v. Henkel (201 U. S. 90, 50 L. Ed. 671, 26 Sup. Ct. 385, 2 Fed. Anti-Trust Dec. 919), 486. nicCabe v. A. T. & S. F. Ry. Co. (235 U. S. 151, 59 L. Ed. 169, 35 Sup Ct. 69), 29. McCaull-Dinsmore Co. v. Chicago, G. W. Ry. Co. (14 I. C. C. 527), 206, 210, 383. McCaull-Dinsmore Co. v. C. M. & St. P. Co. (252 Fed. 664, 260 Fed. 835, — C. C. A. — , 250 U. S. — , 64 L. Ed. — , 40 Sup. Ct. — ), 32, 34a, 204a, 440. McCauU-Dismore Co. v. M. P. R. Co. (35 I. C. C. 69), 383.' McClelen v. Southern Ry. Co. (6 I. C. C. 588), 348. McClung & Co. V. S. R. Co. (22 I. C. C. 582), 81. McCluskey v. Marysville & N. R. Co. (243 U. S. 36, 61 L. Ed. 578 37 Sup. Ct. 374), 2. McConnell v. Camors-McConnell Co. (140 Fed. 987, 72 C. C. A. 681, 2 Fed. Anti-Trust Dec. 825), 486. McConnell v. Camors-McConnell Co. (152 Fed. 321, 81 C. C. A. 429), 486. McCormick v. Chicago, B. & Q. R. Co. (14 I. C. C. 611), 344. McCormick Co. v. S. P. Co. (37 I. C. C. 234), 256a. McCoy V. Cincinnati, I. St. L. & C. R. Co. (13 Fed. 3), 9. McCullough V. Maryland (17 U. S. 4 Wheat 316, 4 L. Ed. 579), 63. McDermott v. State (143 Wis. 18, 126 N. W. 888), 58. McDermott v. Wise. (228 U. S. 115, 57 L. Ed. 754, 21 Ann. Cas. 1315, 33 Sup. Ct. 431), 3, 58. McDonald v. Hovey (110 U. S. 619, 28 L. Ed. 269, 4 Sup. Ct. 142), 144. McDonald v. Sou. Ex. Co. (134 Fed. 282), 58. IVicDuffie V. Portland & R. R. Co. (52 N. jr_. 430, 13 Am. Rep. 72), 304. McFadden v. A. G. S. R. Co. (241 Fed. 562, 154 C. C. A. 338), 335. McGowan-Foshee Lumber Co. v. F. A. & G. R. R. Co. (43 I. C. C. 581), 208 McGregor v. G. N. Ry. Co. (172 N. W. 841, 4 A. L. R. 1635), 298a. McGrew v. Mo. Pac. R. Co. (8 I. C. C. 630), 217, 346, 383. McGrew v. Missouri Pac. R. Co. (230 Mo. 496, 132 S. W. 1076), 52. McLatchey v. King (250 Fed. 920), 492, 513. McLean Lumber Co. v. United States (237 Fed. 460), 61, 100, 308a, 309. McLean v. Denver & R. G. R. Co. (203 U. S. 38, 51 L. Ed. 78, 27 Sup. Ct. 1), 58. McMorran v. Grand Trunk Ry. Co. (3 I. C. C. 252, 2 I. C. R. 604), 339, 345, 346. McNeil, Ex parte (80 U. S. 13 Wall. 236, 20 L. Ed. 624), 292. McNeill V. Southern Ry. Co. (202 U. S. 543, 50 L. Ed. 1142, 26 Sup. Ct. 722), 12, 14. Table of Cases Cited. 87 I References are to Sections.] McRae T. Ry. Co. v. Southern Ry. Co. (12 I. C. C. 270). 344. Macon Grocery Co. v. Atlantic C. L. R. Co. (215 U. S. 501, 54 L. Ed. 300, 30 Sup. Ct. 184), 304, 307, 308a. Macon Grocery Co. v. Atlantic C. L. R. Co. (163 Fed. 738), 304, 383, 443. Maier & Co. v. S. P. Co. (29 I. C. C. 103), 348, 383. Maine Central Boat Lines (40 I. C. C. 272), 354. Maine v. G. T. R. Co. (142 U. S. 217, 35 L. Ed. 994, 12 Sup. Ct. 121), 59. Majestic Coal & Coke Co. v. 111. Cent. R. Co. (162 Fed. 810), 445. Malone v. N. Y. Tel. Co. (40 I. C. C. 185), 340. Manigault v. Springs (199 U. S. 473, 50 L. Ed. 274, 26 Sup. Ct. 127), 53. Manigault v. Ward & Co. (123 Fed. 707), 53. Manufacturers' & Jobbers' Union v. Minneapolis & St. L. Ry. Co. (4 I. C. C. 79, 3 I. C. R. 115), 99, 110. Manufacturers' & Merchants' Asso. v. A. & A. R. R. Co. (37 I. C. C. 350), 208. Manufacturers' Gas & Oil Co. v. Ind. Natural Gas & Oil Co. (155 Ind. 545, 58 N. E. 706, 53 L. R. A. 135), 58. Manufacturers' Ry. Co. v. -St. L. I. M. & S. R. Co. (21 I. C. C. 304), 10, 66, 404. Manufacturers' Ry. Co. v. St. L. I. M. & S. R. Co. (28 I. C. C. 93), 193, 338, 400. Manufacturers' Ry. Co. v. St. Louis I. M. & S. R. Co. (32 I. C. C. 578), 193. Manufacturers' Ry. Co. v. U. S. (246 U. S. 457, 62 L. Ed. 831, 38 Sup. Ct. 383), 139, 171, 193, 309, 345, 399. Manufacturers' Railways Case (32 I. C. C. 100), 171, 193. Marian Coal Co. v. D. L. & W. R. Co. (27 I. C. C. 441), 250, 408. Marienelli v. United Booking Offices of America (227 Fed. 165), 2, 492. Marshall Wells Hdw. Co. v. S. P. & S. Ry. Co. (53 I. C. C. 684), 351. Marten v. Louisville & N. R. Co. (9 I. C. C. 581), 110, 346, 348. Martin v. Chicago, B. & Q. R. Co. (2 I. C. C. 25, 1 I. C. R. 32), 392. Martin v. Hunter (14 U. S. 1 Wheat. 304, 4 L. Ed. 97), 292. Martin v. Southern Pac. Co. (2 I. C. C. 1, 2 I. C. R. 1), 339, 348. Martin v. West (222 U. S. 191, 56 L. Ed. 159, 32 Sup. Ct. 42, 36 L. R. A. (N. S.) 592), 56. Massee & Felton Lumber Co. v. So. Ry. Co. (23 I. C. C. 110), 91. Mathews v. Board of Comrs. of North Caro. (106 Fed. 9), 84. Matter Private Cars (50 I. C. C. 652), 142a. Mattingly v. Penn. Co. (3 I. C. C. 592, 2 I. C. R. 806), 335. May v. New Orleans (178 U. S. 496, 44 L. Ed. 1165, 20 Sup. Ct. 976). 58. 88 Table of Cases Cited, [References are to Sections.] Mayfield & Graves County Commercial Club v. B. & O. 11. Co. (48 I. C. C. 45), 119. Maynard Coal Co. v. Fed. Trade Commission ( — Sup. Ct. of D. C. — ), 329. Mayor of Boston, Ga. v. Atlantic C. L. R. Co. (24 I. C. C. 50), 108, 348. Mayor of Bristol v. Virginia & S. W. Ry. Co. (15 I. C. C. 453), 339. Mayor of Douglas, Ga. v. Atlantic B. & A. R. Co. (28 I. C. C. 445), 108. Mayor of New York v. New Eng. Transp. Co. (14 Blatch. 159, Fed. Cas. 10197), 53. .Vayor of New York v. Starin (106 N. Y. 1, 12 N. E. 631), 53. .Alayor, etc., of Tifton v. Louisville & N. R. Co. (9 L C. C. 160), 339. Mayor of Vienna v. Ga. S. & F. R. Co. (28 I. C. C. 173), 108. Mayor, etc., of Wichita v. Atchison, T. & S. F. Ry. Co. (9 I. C. C. 534), 90, 91, 164, 339, 346, 348, 486. Mayor, etc., of Wichita v. Chicago, R. I. & P. R. Co. (9 I. C. C. 569), 346. Meeds Lumber Co. v. A. C. R. Co. (39 I. C. C. 337), 169. Meeker v. Lehigh V. R. Co. (21 L C. C. 129, 23 I. C. C. 480), 208. Meeker v. Lehigh V. R. Co. (162 Fed. 354), 383, 486. Meeker v. Lehigh V. R. Co. (175 Fed. 320), 394, 492. Meeker v. Lehigh V. R. Co. (183 Fed. 548, 106 C. C. A. 94), 492. Meeker v. Lehigh V. R. Co. (211 Fed. 785, 128 C. C. A. 311), 208. Meeker v. Lehigh V. R. Co. (236 U. S. 412, 59 L. Ed. 644, 35 Sup. Ct. 328), 208, 216, 218, 317, 318, 383, 394, 408. Memphis v. Chicago R. I. & P. R. Co. (39 I. C. C. 256, 43 I. C. C. 121), 44, 47, 81. Memphis Cotton Oil Co. v. L C. R. Co. (17 L C. C. 313), 77, 102. Memphis & L. R. R. Co. v. Southern Ex. Co. (117 U. S. 1, 29 L. Ed. 791, 6 Sup. Ct. 542), 303, 347, 397. Memphis Freight Bureau v. I. C. R. Co. (27 L C. C. 507), 98. Memphis Freight Bureau v. K. C. S. R. Co. (17 I. C. C. 90), 207. .Memphis Freight Bureau v. St. L. L M & S. R. Co. (24 I. C. C. 547, 39 L C. C. 224), 145a, 348, 408. Memphis Freight Bureau v. St. L. S. W. R. Co. (18 L C. C. 67), 408. Memphis Merchants' Exchange v. I. C. R. Co. (43 I. C. C. 378), 44 Menacho v. Ward (27 Fed. 529, 23 Blatchf. 502), 77, 102, 303. Menasha Paper Co. v. C. & N. W. Ry. Co. (241 U. S. 55. 60 L. Ed. 885, 36 Sup. Ct. 501), 174, 338. Menefee Lumber Co. v. Tex. & Pac. Ry. Co. (15 I. C. C. 49), 101, 383. Mercantile Trust Co. v. Tex. & Pac. Ry. Co. (216 Fed. 225), 8, 104. Merchants' & Mfrs'. Asso. v. P. R. Co. (23 L C. C 474), 150, 347. Table of Cases Cited, 89 [References are to Sections.] Merchants' & Mfrs. Asso. v. C. of N. J. R. Co. (30 I. C. C. ?>9G), 400. Merchants' & Miners' Transp. Co. v. United States (199 Fed 902), 371. Merchants' Coal Co. v. Fairmont Coal Co. (160 Fed. 769, 88 C. C. A. 23), 392, 445. Merchants' Coal Co. v. Fairmont Coal Co. (163 Fed. 1021), 445. Merchants' Cotton Compress & Storage Co. v. 111. Cent. R. Co. (17 I. C. C. 98), 102. Merchants' Cotton Compress & Storage Co. v. Ins. Co. of North American (1.51 U. S. 368, 38 L. Ed. 195, 14 Sup. Ct. 367), 345. Merchants Ex. of St. Louis v. B. & O. R. Co. (34 I. C. C. 341), 3, 44. Merchants Freight Bureau v. Mo. ?ac. R. Co. (50 I. C. C. 247), 181. Merchants' Freight Bureau of Little Rock v. Midland Valley, etc., R. Co. (13 I. C. C. 243), 346. Merchants' Freight Bureau of Little Rock v. M. P. R. Co. (21 1. C. C. 573), 348. Merchants' Traffic Asso. v. New York, N. H. & H. R. Co. (13 I. C. C. 225), 338. Merchants' Union of Spokane Palls v. No. Pac. R. Co. (5 I. C. C. 478, 4 I. C. R. 183), 105, 335, 348, 395. Meridian Fertilizer Factory v. T. & P. R. Co. (26 I. C. C. 351), 195, 401. Merrick v. Halsey & Co. (242 U. S. 568, 61 L. Ed. 498, 37 Sup. Ct. 227), 58. Mershon v. Cent. R. of N. J. (10 I. C. C. 456), 346. Metcalf V. American School Fur. Co. (108 Fed. 909, 2 Fed. Anti- Trust Dec. 75), 492. Metcalf V. American School Fur. Co. (113 Fed. 1020, 51 C. C. A. 599. 2 Fed. Anti-Trust Dec. Ill), 492. Metcalf V. American School Fur. Co. (122 Fed. 115, 2 Fed. Anti- Trust Dec. 234), 606. Metropolis Commercial Club v. I. C. R. Co. (30 I. C. C. 40), 346. Metropolitan Paving Brick Co. v. A. A. R. Co. (17 I. C. C. 197), 88, 442. Metropolitan Trust Co. v. Houston & T. C. R. Co. (90 Fed. 683), 84. Michie v. New York, N. H. & H. R. Co. (151 Fed. 694), 339. Michigan Box Co. v. Flint, etc., R. Co. (6 I. C. C. 335), 346. Michigan Buggy Co. v. Grand Rapids & Ind. R. Co. (15 I. C. C. 297), 339. Michigan C. R. Co. v. C. M. & L. S. R. Co. (1 111. App 399), 42. Mich. Cent. R. Co. v. Elliott (256 Fed. 18, — C. C. A. — ), 383. Michigan C. R. Co. v. Mich. R. Com. (236 U. S. 615, 59 L. Ed. 750, 35 Sup. Ct. 423), 12, 192. Michigan Hardwood Mfrs. Asso. v. Transcontinental Freight Bu- reau (27 I. C. C. 32), 250, 408. 90 Table of Cases Cited. [References are to Sections.] Midland V. R. Co. v. State (35 Ok. 672, 130 Pac. 803), 58. Miles Medicine Co. (Dr.) v. Jaynes Drug Co. (149 Fed. 838), 486. Miles Medicine Co. (Dr.) v. John D. Park & Sons Co. (164 Fed. 803, 90 C. C. A. 579), 486. Miles Medicine Co. v. John D. Park & Sons Co. (220 U. S. 373, 55 L,. Ed. 502, 31 Sup. Ct. 376), 486. Milburn Wagon Co. v. Lake Shore & M. S. Ry. Co. (18 L C. C. 144), 117. Milburn Wagon Co. v. T. St. L. & M. R. Co. (27 I. C. C. 63), 99. Milk Producers' Asso. v. Delaware, etc., R. Co. (7 L C. C. 92), 335, 339, 346, 348, 392. Millar v. N. Y. C. & H. R. Co. (19 L C. C. 78), 105. Miller v. C. B. & Q. R. Co. (85 Neb. 458, 123 N. W. 449), 439. Miller v. Mayor of New York (109 U. S. 385, 27 L. Ed. 971, 3 Sup. Ct. 228), 54. Miller v. S. P. Co. (20 I. C. C. 129), 90. Milling Logs in Transit (40 I. C. C. 597), 145. Mills V. Lehigh V. R. Co. (238 U. S. 473, 59 L. Ed. 1414, 35 Sup. Ct. 888), 206, 208, 216, 251, 317, 318, 383. Milwaukee, etc.. Brewing Co. v. Chicago, M. & St. P. Ry. Co. (13 I. C. C. 28), 339. Mines v. Schribner (147 Fed. 927, 2 Fed. Anti-Trust Dec. 1035), 486. Minneapolis & St. L. R. Co. v. Herrick (127 U. S. 210, 32 L. Ed. 109, 8 Sup. Ct. 1176), S3, 332. Minneapolis &St. L. R. Co. v. Minnesota (186 U. S. 257, 46 L. Ed. 1151, 22 Sup. Ct. 900), 14, 17, 49, 86, 87, 124, 311, 339. Minneapolis & St. S. M. R. Co. v. Railroad Com. of Wis. (136 Wis. 146, 116 N. W. 905), 49. Minneapolis Civic & Com. Asso. v. C. M. & St. P. R. Co. (30 L C. C. 663), 393. Minneapolis Threshing Mach. Co. v. Chicago, M. & St. P. Ry. Co. (14 I. C. C. 536), 383. Minneapolis Traffic Asso. v. C. & N. W. R. Co. (23 I. C. C. 432), 88, 123. Minnesota v. Barber (136 U. S. 313, 34 L. Ed. 455, 10 Sup. Ct. 862), 58. Minnesota v. Northern Securities Co. (123 Fed. 692, 2 Fed. Anti- Trust Dec. 246), 486. Minnesota v. Northern Securities Co. (194 U. S. 48, 48 L. Ed. 870, 24 Sup. Ct. 598, 2 Fed. Anti-Trust Dec. 533), 486, 489. Mississippi Railroad Com. v. 111. Cent. R. Co. (203 U. S. 335, 51 L. Ed. 209, 27 Sup. Ct. 90), 9, 21. Table of Cases Cited. 91 [References are to Sections.] Mississippi River Case, The (28 I. C. C. 47), 99a. Missouri & 111. Coal Co. v. I. C. R. Co. (22 I. C. C. 39), 151, 195. Missouri & 111. Rd., Tie & Lumber Co. v. Cape, etc., R. Co. (1 I. C. C. 30, 1 I. C. R. 607), 3.35. Missouri & Kansas Shippers' Asso. v. Atchison, T. & S. F. Ry. Co. (13 I. C. C. 411), 218, 383, 392. Missouri & Kansas Shippers' Asso. v. Missouri, K. & T. Ry. Co. (12 I. C. C. 483), 348. S83, 392. Missouri, K. & T. Ry. Co. v. Ashinger (162 Pac. 814), 41. Missouri, K. & T. R. Co. v. Cade (233 U. S. 642, 58 L. Ed. 1135, 34 Sup. Ct. 678), 35. Missouri, K. & T. R. Co. v. Fookes (40 S. W. 858), 37. Missouri, K. & T. R. Co. v. Haher (169 U. S. 613, 42 L. Ed. 878, 18 Sup. Ct. 488), 58. Missouri, K. & T. R. Co. v. Harriman (227 U. S. 657, 57 L. Ed. 690, 33 Sup. Ct. 397), 32, 439. Missouri, K. & T. R. Co. v. Harris (234 U. S. 412, 58 L. Ed. 1377, 34 Sup. Ct. 790), 35. Missouri,K. & T. Ry. Co. v. Int. Com. Com. (164 Fed. 645), 396. Missouri, K. & T. R. Co. v. Love (177 Fed. 493), 49, 84. Missouri, K. & T. R. Co. v. McCann (174 U. S. 580, 43 L. Ed. 1U93, 19 Sup. Ct. 755), 32. Missouri, K. & T. R. Co. v. Mahaffey (105 Tex. 394, 150 S W. 881), 35. Missouri, K. & T. R. Co. v. May (194 U. S. 267, 48 L. Ed. 971, 24 Sup. Ct. 638), 15. Missouri, K. & T. R. Co. v. Sealy (248 U. S. 363, 63 L. Ed. — , 39 Sup. Ct. — ), 295, 317. Missouri, K. & T. R. Co. v. Simonson (64 Kan. 802, 68 Pac. 653, 57 L. R. A. 765), 32. Missouri, K. & T. Ry. Co. v. Texas (245 U. S. 484, 62 L. Ed. 419, 38 Sup. Ct. 178), 20, 21. Missouri. K. & T. R. Co. v. Trinity Co. v. Lumber Co. (1 Tex. Civ. App. 553, 21 S. W. 290), 178. Missouri, K. & T. R. Co. v. United States (178 Fed. 15, 101 C. C. A. 14S), 481. Missouri, K. & T. R. Co. v. United States (231 U. S. 112, 58 L. Ed. 144, 34 Sup. Ct. 26), 331. Missouri, K. & T. R. Co. v. Withers (16 Tex. Civ. App. 506, 40 S. W. 1073), 32. Missouri Pac. R. Co. v. Castle (224 U. S. 541, 56 L. Ed. 875, 32 Sup. Ct. 606), 33. 92 Table of Cases Cited. [References are to Sections.] Missouri Pac. R. Co. v. Ferguson Sawmill Co. (235 Fed. 474. 149 C. C. A. 20), 214m, 215, 217, 383, 406. Missouri Pac. R. Co. v. Harper Bros. (201 Fed. 671, 121 C. C. A. 570), 407. Missouri Pac. R. Co. v. Kansas ex rel. Taylor (216 U. S. 262. 54 L. Ed. 472, 30 Sup. Ct. 330), 19. Missouri Pac. R. Co. v. Larabee Flour Mills Co. (211 U. S. 612, 53 L. Ed. 352), 29 Sup. Ct. 214), 9, 13, 344. Missouri Pac. R. Co. v. Larabee Flour Mills Co. (211 U. S. 612, 53 L. Ed. 352, 29 Sup. Ct. 214), 296. Mo. Pac. Ry. Co. v. Lovelace Flour Mills Co. (211 U. S. 612, 53 L. Ed. 352, 29 Sup. Ct. 214), 296. Missouri Pac. R. Co. v. Mackey (127 U. S. 205, 32 L. Ed. 107, 8 Sup Ct. 1161), 33, 332. Missouri P. R. Co. v. McGrew Coal Co. (244 U. S. 191, 61 L. Ed. 1075, 37 Sup. Ct. 518), 52. Missouri Pac. R. Co. v. Nebraska ex rel. Board of Transportation (164 U. S. 403, 41 L. Ed. 489, 17 Sup. Ct. 130), 12. Missouri Pac. R. Co. v. Nebraska (217 U. S. 196, 54 L. Ed. 727, 30 Sup. Ct. 461), 12. Missouri Pac. R. Co. v. Tex. & Pac. Ry. Co. (31 Fed. 862), 348. Missouri Pac. R. Co. v. Tucker (230 U. S. 340, 57 L. Ed. 1507, 33 Sup. Ct. 961), 35. Missouri Pac. R. Co. v. United States (189 U. S. 274, 47 L. Ed. 811, 23 Sup. Ct. 507), 389, 456, 459. Missouri River Nebraska Cases, The (40 T. C. C. 201), 44, 346. Missouri River Rate Case (Chicago, R. I. & P. R. Co. v. Int. Com. Com.) (171 Fed. 680), 462, 464. Mitchell V. A. T. & S. F. R. Co. (12 I. C. C. 324), 105. Mitchell V. Hitchman Coal & Coke Co. (214 Fed. 685), 489. Mitchell Coal & Coke Co. v. Cassatt (207 U. S. 181, 52 L. Ed. 160, 28 Sup. Ct. 108), 335. Mitchell Coal & Coke Co. v. P. R. Co. (181 Fed. 403. 183 Fed. 908, 192 Fed. 475, 112 C. C. A. 637). 215, 345, 383. Mitchell Coal & Coke Co. v. P. R. Co. (230 U. S. 247, 38 I. C. C. 40, 57 L. Ed. 1472, 33 Sup. Ct. 916), 97, 138, 171, 197, 215, 245, 294, 345, 383, 404, 405, 443. Mobile & O. R. Co. v. Dismukes (94 Ala. 131, 10 So. 289, 4 I. C. R. 200), 180, 212. Mobile Chamber of Commerce v. M. & O. R. Co. (23 I. C. C. 417), 139, 400. Mobile Chamber of Commerce v. M. & O. R. Co. (32 I. C. C. 272), 116, 400. Table of Cases Cited. 93 [References are to Sections.] Mobile County v. Kimball (102 U. S. 691, 26 L. Ed. 238), 3. Moers v. City of Reading (21 Pa. St. 188), 54. Moise Bros. Co. v. C. R. I. & P. R. Co. (16 I. C. C. 550). 348. Molasses Rates to Knoxville (30 I. C. C. 613), 88. Momsen & Co. v. Gila Valley, etc., Ry. Co. (14 I. C. C. 614), 206, 210, 383. Monarch Tobacco Works v. American Tob. Co. (165 Fed. 774), 492. Mondoii V. N. Y. N. H. & H. R. Co. (Employers' Liability Cases) (223 U. S. 1, 56 L. Ed. 327, 32 Sup. Ct. 169, 38 L. R. A. (N. S.) 44), 3, 6, 33, 58, 293, 332. Monongahela Bridge Co. v. United States (216 U. S. 117, 54 L. Ed. 435, 30 Sup. Ct. 356), 54. Montague v. Lowry (193 U. S. 38, 48 L. Ed. 608, 24 Sup. Ct. 307, 2 Fed. Anti-Trust Dec. 327), 486, 492. Montague v. Lowry (115 Fed. 27, 52 C. C. A. 621, 2 Fed. Anti-Trust Dec. 112), 486, 494. Montana v. P. C. C. & St. L. Ry. Co. (48 I. C. C. 728), 344. Montana Cent. R. Co. v. United States (164 Fed. 400, 90 C. C. A. 388), 481. Montana Free Pass Situation (29 L C. C. 411), 342. Montgomery v. C. B. & Q. R. Co. (143 C. C. A. 138, 228 Fed. 616), 207, 297, 346, 383. Jlontrose Pickle Co. v. Dodson (76 Iowa 172), 40 N. W. 705, 2 L. R. A. 417, 14 Am. St. Rep. 213), 42. Moore v. Duncan (237 Fed. 780, 150 C. C. A. 534), 364. 440. Moore v. United States (85 Fed. 465 , 29 C. C. A. 269), 1 Fed. Anti-Trust Dec. 815), 488. Morgan v. Missouri, K. & T. R. Co. (12 I. C. C. 525), 335, 361, 383. Morgan Grain Co. (A. P.) v. Atlantic C. L. R. Co. (19 I. C. C. 460), 7. Morgans L. & T. R. Co. v. Joseph Iron Co. (243 Fed. 149), 207. Morgans R. & S. Co. v. R. R. Com. of La. (109 La. 247, 33 So. 214), 49. Morgans S. S. Co. v. Louisiana (118 U. S. 455, 30 L. Ed. 237, 6 Sup. Ct. 1114), 58. Morgantown & Kingwood Divisions (40 I. C. C. 509, 49 I. C. C. 540), 195, 397. Morrell v. Union Pac. R. Co. (6 I. C. C. 121, 4 I. C. R. 469), 339. Morris v. United States (229 Fed. 516, 143 C. C. A. 582, 584), 334. Morrisdale Coal & Coke Co. v. Penn. R. Co. (176 Fed. 748, 183 Fed. 929, 106 C. C. A. 269), 208, 346, 407, 443. Morrisdale Coal & Coke Co. v. P. R. Co. (230 U. S. 304, 57 L. Ed. 1474, 33 Sup. Ct. 938), 174, 198, 208, 218, 340, 443. 94 Table of Cases Cited, [References are to Sections.] Morris Draying Co. v. Greenville & H. R. Co. (62 N. J. Eq. 768, 48 Atl. 568, 59 N. J. Eq. 372, 46 Atl. 638), 13. Morris Iron Co. v. B. & 0. R. R. Co. (26 I. C. C. 240), 191, 192, 347. Morris-Scarboro Moffitt Co. v. So. Ex. Co. (146 N. C. 167, 59 S. E. 667), 9, 110. Morse Produce Co. v. Chicago, M. & St. P. Ry. Co. (15 I. C. C. 334), 383. Moseley v. United States (35 Ct. Claims 355), 418. Moses Taylor (The) (71 U. S. 4 Wall 411, 18 L. Ed. 397), 292. Moshassuck Valley R. R. Case (37 I. C. C. 566), 176. Moss V. Bett'3 (4 Hlsk. (Tenn.) 661, 13 Am. St. Rep. 1), 54. Motion Picture Patent Co. v. Eclair Film Co. (208 Fed. 416), 486, 492. Motion Picture Patent Co. v. Ullman (186 Fed. 174), 486. Motion Picture Patents Co. v. Universal Film Mfg. Co. (235 Fed. 398, 148 C. C. A. 660, 243 U. S. 502, 61 L. Ed. 871, 37 Sup. Ct. 416, L. R. A. 1917E. 1187, Ann. Cas. 1918A. 959), 497. Mottley V. Louisville & N. R. Co. (150 Fed. 406), 342. Mountain Ice Co. v. D. L. & W. R. Co. (21 I. C. C. 45), 250, 383. Mountain Ice Co. v. D. L. & W. R. Co. (21 I. C. C. 596), 213 Munn V. Illinois (94 U. S., 4 Otto, 113, 24 L. Ed. 77), 16, 45, 61, 63, 80. Murphy, Wasey & Co. v. Wabash R. Co. (5 I. C. C. 122, 3 I. C. R. 725), 395. Murray v. Chicago & N. W. R. Co. (62 Fed. 24), 383. Murray v. Chicago & N. W. R. Co. (92 Fed. 868, 35 C. C. A. 62), 583. Musco V. United Surety Co. (132 App. Div. 300, 117 N. Y. Sup. 21, 196 N. Y. 459, 90 N. E. 171), 37. Muser v. Magone (155 U. S. 240, 39 L. Ed. 135, 15 Sup. Ct. 77), 396. Muskogee Commercial Club v. Missouri, K. & T. Ry. Co. (13 I. C. C. 68), 416. Muskogee Traffic Bureau v. A. T. & S. P. R. Co. (17 I. C. C. 169), 99. Mutual Rice Trade & Development Asso. v. International & G. N. R. Co. (23 I. C. C. 219), 112. Mutual Transit Co. v. United States (178 Fed. 664), 65. Myers v. Penn. Co. (2 I. C. C. 573, 2 I. C. R. 403, 544), 263, 392, 416. N. Nash v. Page (80 Ky. 539, 44 Am. Rep. 490), 45. Nash V. United States (186 Fed. 489, 108 C. C. A. 467), 486. Nash V. United States (229 U. S. 373, 57 L. Ed. 1232, 33 Sup. Ct. 780), 486. Table of Cases Cited. 95 [References are to Sections.] Nashville, Chatta. & St. L. Ry. Co. v. Alabama (128 U. S. 96, 32 L. Ed. 352, 9 Sup. Ct. 28), 22. Nashville C. & St. L. R. Co. v. Burnside Mills (219 U. S. 186, 55 L. Ed. 167, 31 Sup. Ct. 164, 31 L. R. A. (N. S.), 7), 439. Nashville Flour Transit Rules (41 I. C. C. 483), 163. Nashville Grain Ex. v. United States (191 Fed. 37, 234 Fed. 699), 166, 315. Nashville Lumbermen's Club v. L. & N. R. Co. (40 I. C. C. 59), 109. Nashville Tie Co. v. L. & N. R. Co. (40 I. C. C. 377), 88, 89a. Nashville Switching (40 I. C. C. 474), 144. National Elevator Co. v. C. M. & St. P. Ry. Co. (246 Fed. 588, — C. C. A. — ), 297. National Fire Proofing Co. v. Masons Builders Asso. (169 Fed. 259, 94 C. C. A. 535, 26 L. R. A. (N. S.) 148), 486, 489, 492. National Folding Box & Paper Co. v. Robertson (99 Fed. 985, 2 Fed. Anti-Trust Dec. 4), 486. National Harrow Co. v. Hench (76 Fed. 667, 1 Fed. Anti-Trust Dec. 610), 486. National Harrow Co. v. Hench (83 Fed. 36, 27 C. C. A. 349, 39 L. R. A. 299, 1 Fed. Anti-Trust Dec. 742), 486. National Harrow Co. v. Hench (84 Fed. 226, 1 Fed. Anti-Trust Dec. 746), 486. National Harrow Co. v. Quick (74 Fed. 236, 20 C. C. A. 410), 486. National Harrow Co. v. Quick (67 Fed. 130. 1 Fed. Anti-Thust Dec. 443, 608), 486. National Hay & Grain Shippers' Asso. v. L. S. & M. S. R. Co. (9 I. C. C. 264), 88. National Hay Asso. v. L. S. & M. S. R. Co. (9 I. C. C. 264), 80, 88, 266, 339. National Hay Asso. v. M. C. R. Co. (19 I. C. C. 34), 96, 99, 266. National Implement & Vehicle Asso. v. B. & 0. R. Co. (42 I. C. C. 461), 124. National Live Stock Ex. v. C. B. & Q. R. Co. (47 I. C. C. 380), 169. National Machy. & Wrecking Co. v. Pittsburg, etc., R. Co. (11 L C. C. 581), 88, 346. National Pole Co. v. C. & M. O. R. Co. (211 Fed. 65), 317, 383, 407. National Refining Co. v. A. T. & S. F. R. Co. (18 I. C. C. 389), 215. National Society of Record Asso. v. A. & R. R. Co. (40 I. C. C. 347), 81, 161, 440. National Surety Co. v. State Bank (120 Fed. 593, 56 C C. A. 657, 61 L. R. A. 394), 60. 96 Table of Cases Cited. [References are to Sections.] National Tube Co. v. L. T. R. Co., (53 I. C. C. 469, 56 I. C. C. 272), 171, 193, 397, 404. National Water Works Co. v. Kansas City (62 Fed. 853), 84. National Wool Growers Asso. v. O. S. R. Co. (23 I. C. C. 151), 207. Naylor Co. v. L. V. R. Co. (15 I. C. C. 9, 18 I. C. C. 624), 208, 383, 394, 407. Nebraska-Iowa Grain Co. v. United Pac. Ry. Co. (15 I. C. C. 90), 168. Nebraska State R. R. Com. v. C. B. & Q. R. Co. (23 I. C. C. 121), 99. Nebraska State R. R. Com. v. C. V. R. Co. (32 I. C. C. 41), 88. Nelson v. United States (201 U. S. 92, 50 L. Ed. 673, 26 Sup. Ct. 358, 2 Fed. Anti-Trust Dec. 920), 486. New Albany Furniture Co. v. Mobile, etc., R. Co. (13 I. C. C. 594), 383. New Jersey Fruit Ex. v. Cent. R. Co. of N. J. (2 I. C. C. 142, 2 I. C. R. 84), 335. Newland v. Nor. Pac. R. Co. (6 I. C. C. 131, 4 I. C. R. 474), 105. Newman Lumber Co. v. M. C. R. Co. (26 I. C. C. 97), 206, 210. New Mexico Coal Rates (28 I. C. C. 328), 397. New Mexico v. D. & R. G. R. Co. (12 N. M. 425, 78 Pac. 74), 58. New Mexico Wool Growers' Asso. v. A. T. & S. F. R. Co. (— N. M. — , 145 Pac. 1077), 9. New Orleans Board of Trade v. L. & N. R. Co. (17 I. C. C. 231), 63, 222, 392, 395. New Orleans Board of Trade v. I. C. R. Co. (23 I. C. C. 465), 169, 208, 346. New Orleans Board of Trade v. I. C. R. Co. (29 I. C. C. 32), 134, 208, 383. New Orleans Cotton Ex. v. Cincinnati, N. O. & T. P. R. Co. (2 I. C. C. 375, 2 I. C. R. 289), 335, 339, 346. New Orleans Cotton Ex. v. 111. Cent. R. Co. (3 I. C. C. 534, 2 I. C. R. 777), 335, 339, 345, 346. New Orleans Cotton Ex. v. Louisville, N. O. & T. R. Co. (4 I. C. C. 694, 3 I. C. R. 523), 513. New Orleans Gas Light Co. v. Drainage Com. (197 U. S. 453, 49 L. Ed. 831, 25 Sup. Ct. 471), 54. New Orleans Live Stock Ex. v. Tex. & Pac. Ry. Co. (10 I. C. C. 327), 346. New Orleans, N. & N. Ry. Co. v. I. C. R. (55 I. C. C. 113), 170. New Orleans Terminal Allowances (42 I. C. C. 748), 404. Newport N. & M. V. R. Co. v. United States (Gl Fed. 488, 9 C. C. A. 579), 481. Newton Gum Co. v. Chicago, B. & Q. R. Co. (16 I. C. C. 341), 358. Table of Cases Cited. 97 [References are to Sections.] New York & N. E. R. Co. v. Bristol (151 U. S. 556, 38 L. Ed. 269, 14 Sup. Ct. 437), 15. New York & N. Ry. Co. v. New York & N. E. Ry. Co. (50 Feci. 867), 149, 347. New York & N. Ry. Co. v. New York & N. E. Ry. Co. (4 I. C. C. 702, 3 I. C. R. 542), 347. New York Board of Trade v. Penn. R. Co. (4 I. C. C. 447, 2 I. C. R. 660, 734, 755, 800, 3 I. C. R. 417), 339, 345, 358. New York C. & H. R. Co. v. Beaham (242 U. S. 148. 61 L. Td. 210, 37 Sup. Ct. 43), 415, 440. New York C. & H. R. Co. v. Gray (239 U. S. 583, 60 L. Ed. 451, 36 Sup. Ct. 176), 182, 342. New York C. & H. R. Co. v. Hudson County (227 U. S. 248, 57 L. Ed. 499, 33 Sup. Ct. 269, 76 N. J. L. 664, 74 Atl. 954), 13, 43. New York C. & H. R. R. Co. v. Int. Com. Co. (168 Fed. 131), 309. New York C. & H. R. R. Co. v. Murphy (224 Fed. 407, 140 C. C. A. Ill), 394. New York C. & H. R. R. Co. v. New York (165 U. S. 628> 41 L. Ed 853, 17 Sup. Ct. 418, 142 N. Y. 646, 37 N. E. 568), 15. New York C. & H. R. R. Co. v. United States (165 Fed. 833, 91 C. C. A. 519), 481. New York C. & H. R. R. Co. v. United States (166 Fed 267, 92 C. C. A. 331), 371. New York C. & H. R. R. Co. v. United States (212 U. S. 481. 53 L. Ed. 613, 29 Sup. Ct. 304), 63, 86, 187, 335, 371, 372, 480c. New York C. & H. R. R. Co. v. United States (212 U. S. 500, 5.'^> L. Ed. 624, 29 Sup. Ct. 309), 204, 212, 371. New York C. R. Co. v. Lockwood (17 Wall 84 U. S. 357, 21 L. Ed. 627), 201. New York City v. New England Transp. Co. (14 Blatch. 159, 13 Fed. Cas. 10197), 53. New York Commutation Fares (42 I. C. C. 354), 345, 364. New York Dock Co. v. B. & O. R. Co. (32 I. C. C. 568), 121. New York Life Ins. Co. v. Deer Lodge County (231 U. S. 495. 58 L. Ed. 332, 34 Sup. Ct. 167), 2. New York Harbor Case, The (47 I. C. C. 643), 129. New York L. & W. Ry. Co. v. Erie R. Co. (31 App. Div. 378, 52 N. Y. Sup. 318, 157 N. Y. 674, 51 N. E. 1092), 13. New York Mercantile Co. v. B. & 0. R. (36 I. C. C. 156), 306. New York, N. H. & H. R. Co. v. Ballou & Wright (242 Fed. 862, 155 C. C. A. 450, P. U. R. 1918A. 149), 207. New York, N. H. & H. R. Co. v. Int. Com. Com. (200 U. S. 361, 50 L. Ed. 515, 26 Sup. Ct. 272), 66, 172, 186, 345. 98 Table of Cases Cited. I References are to Sections.] New York, N. H. & H. R. Co. v. New York (165 U. S. 628, 41 L. Ed. 853, 17 Sup. Ct. 418), 31. 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. 323), 345, 359, 361. New York, P. & N. R. Co. v. Peninsula Produce Ex. (240 U. S. 34, 60 L. Ed. 511, 36 Sup. Ct. 230), 440. New York Produce Ex. v. B. & O. R. Co. (7 I. C. C. 612), 346, 358. New York Produce Ex. v. N. Y. C. & H. R. Co. (3 I. C. C. 137, 2 I. C. R. 13, 28, 353), 345, 346, 360. Nicola, Stone & Myers Co. v. Louisville & N. R. Co. (14 I. C. C. 199), 204, 207, 213, 214, 218, 222, 383, 395, 408, 449. Nichols & Cox Lumber Co. v. United States (212 Fed. 588), 371, 385. Nicholson v. Great W. Ry. Co. (5 C B. N. S. 366), 509. Niles-Bement-Pond Co. v. Iron Molders Local Bo. 68 (246 Fed. 851), 501. Nineteen Hundred and Fifteen Western Rate Advance Case. See Western Rate Advance Case 1915n. Nitro Powder Co. v. W. S. R. Co. (44 L C. C 596), 207. Nix & Co. V. S. R. Co. (31 I. C. C. 145), 383. Nobles Bros. Gro. Co. v. Ft. Worth & D. C. R. Co. (12 I. C. C. 242), 346 Nolen v. Riechman (225 Fed. 812), 337. Nollenberger v. Missouri ?ac. R. Co. (15 I. C. C. 595), 218, 392. Norfolk & W. R. Co. v. Conley (236 U. S. 605, 59 L. Ed. 745, 35 Sup. Ct. 437), 48, 87, 311. Norfolk & W. R. Co. v. Dixie Tobacco Co. (228 U. S. 593, 57 L. Ed. 980, 33 Sup. Ct. 609, 111 Va. 813, 69 S. E. 1106), 295, 439. Norfolk & W. R. Co. v. Pennsylvania (136 U. S. 114, 34 L. Ed. 394. 10 Sup. 958), 335. Norfolk & W. R. Co. v. United States (195 Fed. 953), 122. Norfolk S. R. Co. v. Chatman (244 U. S. 276, 61 L. Ed. 1131, 37 Sup. Ct. 499), 362. Norfolk Truckers Ex. v. W. U. Tel. Co. (82 S. E. 92), 340. Northampton & Bath R. R. Case (41 I. C. C. 68), 176. Northbound Rates on Hardwood (32 I. C. C. 521), 101. North Carolina Corp. Com. v. A. C. L. Ry. Co. (137 N. C. 1, 49 S. E. 191, 115 Am. St. Rep. 636), 12, 19. North Carolina R. Co. v. Zachary (232 U. S. 248, 58 L. Ed. 591, 34 Sup. Ct. 305, 156 N. C. 496, 72 S. E. 858), 22. North Dakota v. N. P. R. Co. (17 N. D. 223, 116 N. W. 92), 50. Northern C- R- Co. v. United States (241 Fed. 25, 154 C. C. A. 25), 371. Table of Cases Cited. 99 [References are to Sections.] Northern Pac. R. Co. v. Minnesota (208 U. S. 583, 52 L. Ed. 630. 28 Sup. Ct. 341), 54. Nortliern Pac. R. Co. v. North Dakota (216 U. S. 579, 54 L. Ed. 624, 30 Sup. Ct. 423), 50. Northern Pac. R. Co. v. North Dakota (236 U. S. 585, 59 L. Ed. 735, 35 Sup. Ct. 429), 48, 50, 88, 90, 100, 101, 311. Northern Pac. R. Co. v. North Dakota (250 U. S. 135, 63 L. Ed. 897, 3'J Sup. Ct. 505, P. U. R. 1919D. 705), 335. Northern Pac. R. Co. v. Pacific Coast Lumber Mfrs. Asso. (165 Fed. 1, 91 C. C. A. 39), 304, 307, 443, 490. Northern P. R. Co. v. Solum (247 U. S. 477, 62 L. Ed. 1221, 38 Sup. Ct. 550), 210. Northern Pac. Ry. Co. v. Wall (241 U. S. 87, 60 L. Ed. 905, 36 Sup. Ct. 493), 440. Northern Pac. R. Co. v. Washington (13 Pac. 604), 9. Northern Pac. R. Co. v. Washington ex rel. Dustin (142 U. S. 492, 35 L. Ed. 1092, 12 Sup. Ct. 283), 9,«347. Northern Pac. R. Co. v. Washington (222 U. S. 370, 56 L. Ed. 237, 32 Sup. Ct. 160), 4, 22, 58. Northern Pac. T. Co. v. U. S. (184 Fed. 603, 106 C. C. A, 583), 481. Northern Potato Traffic Asso. v. B. & O. R. Co. (43 I C. C. 545), 346. Northern Securities Co. v. Harriman (134 Fed. 331, 67 C. C. A. 245, 2 Fed. Anti-Trust Dec. 618), 489. Northern Securities Co. v. United States (193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679, 2 Fed. Anti-Trust Dec. 338), 11, 58, 486. 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. Northwestern Consolidated Milling Co. v. Callam & Son (177 Fed. 786), 486. Northwestern Cooperage & Lumber Co. v. M. & St. P. & S. St. M. R. Co. (43 I. C. C. 629), 99a. Noyes v. Parsons (245 Fed. 689, 158 C. C. A. 91), 492. O. O'Brien Com. Co. v. C. & N. W. R. Co. (20 I. C. C. 68), 213. Ocean-and-Rail Rates to Charlotte, N. C. (38 I. C. C. 405), 121. Ocean Steamship Co. of Savannah (37 I. C. C. 422), 354. Ocheltree Grain Co. v. St. L. & S. F. R. Co. (13 I. C. C. 46), 105. Ogden Gateway Case (35 I. C. C. 131), 401. O'Halloran v. Am. Sea preen Slate Co. (207 Fed. 187), 486. Ohio Milk Products Shippers v. E. R. Co. (21 I. C. C. 522), 89. 100 Table op Oases Cited. I References are to Sections.] Ohio R. & W. R. Co. v. Dittey (232 U. S. 576, 58 L. Ed. 737, 34 Sup. Ct. 372, 203 Fed. 537), 59. O'Keefe v. United States (240 U. S. 294, 60 L. Ed. 651, 36 Sup. Ct. 313), 315, 397. Oklahoma v. Kans. Natural Gas Co. (221 U. S. 229, 55 L. Ed. 716, 31 Sup. Ct. 564), 7. Oklahoma Operating Co. v. Love, 251 U. S. — , 64 L. Ed. — , 40 Sup. Ct. — . Oliver v. C. R. I. & P. R. Co. (89 Ark. 466, 117 S. W. 238), 25, 26. Olson V. C. B. & Q. R. Co. (250 Fed. 372, — C. C. A. — ), 440. Omaha Alfalfa Milling Co. v. P. U. R. Co. (43 I. C. C. 264), 208. Omaha & C. B. St. R. Co. v. Int. Com. Com. (191 Fed. 40, 179 Fed. 243), 66, 226, 337, 400. Omaha & C. B. St. R. Co. v. Int. Com. Com. (230 U. S. 324, 57 L. Ed. 1501, 33 Sup. Ct. 890, 40 L. R. A. (N. S.) 385), 66, 226, 313, 337, 400. Omaha Elevator Co. v. Union Pac. Co. (249 Fed. 827, 162 C. C. A. 61), 168, 404. Omaha Grain Ex. v. G. N. Ry. Co. (47 I. C. C. 532), 339. Omaha Grain Ex. v. C. B. & Q. R. Co. (26 I. C. C. 553), 401. Operation Car Ferry Boats A. A. R. Co. (34 I. C. C. 83), 354. Operation Car Ferry Boats P. M. & B. L. E. R. Co. (34 I. C. C. 86), 354. Oregon R. & N. Co. v. Campbell (230 U. S. 525, 57 L. Ed. 1604, 33 Sup. Ct. 1026, 173 Fed. 957, 177 Fed. 318, 180 Fed. 253), 45, 68, 84. Oregon R. & Nav. Co. v. Fairchild (224 U. S. 510, 56 L. Ed. 863, 32 Sup. Ct. 535), 13, 14, 396. Oregon Short Line v. Northern Pac. R. Co. (3 I. C. C. 264, 2 I. C. R. 639), 392. Oregon S. L. & U. N. Ry. Co. v. Northern Pac. R. Co. (51 Fed. 465), 149, 346, 347. Oregon S. L. & U. N. Ry. Co. v. Northern Pac. R. Co. (61 Fed. 158, 9 C. C. A. 409), 149, 346, 347. Oregon-Washington R. & Nav. Co. v. Wilkinson (188 Fed. 363), 486. Osborne v. Bank (9 Wheat. 738, 6 L. Ed. 204), 292. Osborne v. Chicago & North W. Ry. Co. (48 Fed. 49), 214, 248. 383. Oshkosh Logging Tool Co. v. Chicago & N. W. Ry. Co. (14 I. C. R. 109), 408. Otis Elevator Co. v. Geiger (107 Fed. 131, 2 Fed Anti-Trust Dec. 66), 486. Ottumwa Bridge Co. v. Chicago, M. & St. P. Ry. Co. (14 I. C. C 121), 101, 104, 339, 383. Table of Cases Cited, 101 I References are to Sections.] Ottumwa Com. Asso. v. Chicago. B. & Q. R. Co. (17 I. C. C. 413), 118. Ouachita Packet Co. v. Aikin (121 U. S. 444, 30 L. Ed. 976. 7 Sup. Ct. 907), 56. Oxlade v. North Eastern R. Co. (1 C. B. N. S. 454. 20 L. J. C. P. 129, 1 N. & Mac. 72), 144. Ozark Fruit Growers' Asso. v. St. L. & S. F. R. Co. (16 I. C. C. 134), 96. Ozark Fruit Growers' Asso. v. St. L. & S. F. R. Co. (16 I. C C. 1U6), 122. P. Pabst Brewing Co. v. Crenshaw (198 U. S. 17, 49 L. Ed. 925, 25 Sup. Ct. 552), 58. Pacific Coast Beef & Prov. Co. v. O. S. L. R. Co. (46 I. C C. 401), 481. Pacific Coast Gypsum Co. v. O. W. R. Co. (30 I. C. C. 135), 181. Pacific Coast Jobbers' & Mfrs. Asso. v. Southern Pac. Co. (12 I. C. C. 319), 358. Pacific Coast Lumber Mfrs.' Asso. v. N. P. R. Co. (14 I. C. C. 51), 195, 400. Pacific Coast Lumber Mfrs.' Asso. v. Northern Pac. R. Co. (14 I. C. C. 23), 400. Pacific Coast R. Co. v. United States (173 Fed. 448), 66, 103. Pacific Coast S. S. Co. v. Railroad Comrs. (9 Sawy, 253, 18 Fed. 10), 335. lacific Creamery Co. v. A. T. & S. F. Ry. Co. (29 I. C. C. 405, 408), 107. Pacific Creamery Co. v. So. Pac. Co. (42 L C. C. 93), 205. Pacific Elevator Co. v. C. M. & St. P. R. Co. (17 I. C. C. 373), 211. Pacific Fuel and Supply Co. v. Grand T. W. Ry. Co. (27 L C. C. 34), 399. Pacific Nav. Co. v. So. Pac. Co. (31 I. C. C. 472), 121. 194, 338, 346, 347, 375, 401. Pacific Tel. & Tel. Co. v. Anderson (196 Fed. 699), 327, 486 Paducah Board of Trade v. L C. R. Co. (43 L C. C. 537), 396a. Page V. Delaware, L. & W. R. Co. (6 I. C. C. 148, 4 L C. R. 525), 346, 387, 392. Page V. Delaware, L. & W. R. Co. (6 L C. C. 148, 548), 339, 346, 386, 392, 416. Paine Bros. v. Lehigh Valley R. Co. (7 L C. C. 218), 116, 156, 345. Paine Lumber Co. v. Neal (214 Fed. 82, 30 C. C. A. 522), 489. Paine Lumber Co. v. Neal (214 Fed. 82, C. C. A. 522), 489. 102 Table of Cases Cited. [References are to Sections.] Paine Lumber Co. v. Neal (244 U. S. 459, 61 L. Ed. 1256, 37 Sup. Ct. 718), 486. Pankey v. Richmond & D. R. Co. (3 L C. C. 658), 3 I. C. R. 33), 383. Pankey & Holmes v. Central N. E. R. Co. (18 I. C. C. 578), 110. Pardee Works v. C. of N. J. R. Co. (29 I. C. C. 500), 88. Pardee Works v. C. R. R. Co. of N. J. (39 I. C. C. 162), 139a. Parfrey v. Chicago, M. & St. P. Ry. Co. (20 I. C. C. 104), 110. Park & Sons (John D.) v. Hartman (153 Fed. 24, 82 C. C. A. 158, 12 L. R. A. (N. S.) 1135), 48ti. Parkersburg & O. R. T. Co. v. Parkersburg (107 U. S. 691. 27 L. Ed. 584, 2 Sup. Ct. 732), 56. Parks V. Cincinnati & M. V. R. Co. (10 I. C. C. 47), 175. Parsons v. Chicago & N. W. R. Co. (167 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887), 34, 134, 153, 199, 205, 345, 346, 383. Parsons v. Chicago & N. W. R. Co. (63 Fed. 903, 11 C. C. A. 489. 37 U. S. App. 394), 346, 348, 383. Partridge & Son v. ?. R. Co. (26 I. C. C. 484), 145. Patapsco Guano Co. v. North Carolina (171 U. S. 345. 43 L. Ed. 191, 18 Sup. Ct. 862), 58. Patterson v. United States (Cash Register Case) (222 Fed. 599, — C. C. A. — ), 487. Paxton Tie Co. v. Detroit So. R. Co. (10 I. C. C. 422). 383. Payne-Gardner Co. v. Louisville & N. R. Co. (13 I. C. C. 638), 339. Peale, Peacock & Kerr v. C. of N. J. R. Co. (18 I. C. C. 25), 10, 25. Pearsall v. G. N. R. Co. (161 U. S. 646, 40 L. Ed. 838, 16 Sup. Ct. 705), 11. Pearson v. Duncan & Sons (Ala.) (73 So. 406, 3 A. L. R. 242), 486. Peavy & Co. (F. H.), Omaha Elevator Co. et al. v. U P. R. Co. and Martin A. Knapp, et al., composing Int. Com. Com. (176 Fed. 409, 410), 168, 197, 314, 331, 346. Pecos & N. T. Ry. Co. v. Railroad Com. of Texas (56 Tex. Civ. App. 422. 120 S. W. 1055), 9. Pecos Mercantile Co. v. Atchison. T. & S. F. Ry. Co. (13 I. C. C. 173), 348. Peik V. Chicago & N. W. R. Co. (94 U. S. 164, 24 L. Ed. 97), 43. 45. Pelham, Ga. Town of, v. Atlantic C. L. R. Co. (28 I. C. C. 433), 108. Pfninsular & Occidental S. S. Co. (37 I. C. C. 432, 38 I. C. C. 662), 337, 354. Penn Refining Co. v. Western N. Y. & P. R. Co. (208 U. S. 208, 52 L. Ed. 456, 28 Sup. Ct. 268), 317, 383, 389, 406, 407. Pennsylvania v. Wheeling Bridge Co. (13 How. 54 U. S. 518, 14 L. Ed. 249), 54. Table of Cases Cited, 103 [References are to Sections.] Pennsylvania Co. v. Louisville, N. A. & C. R. Co. (3 I. C. C. 223, 2 I. C. R. 603), 392. Pennsylvania Paraffine Works v. P. R. Co. (34 I. C. C. 179), 175. Pennsylvania Millers' State Asso. v. Philadelphia & R. R. Co. (8 I. C. C. 531), 80, 335, 33.9, 348, 358. Penn. R. Co. v. Clark Bros. Coal Co. (241 Pa. 515 88 Atl. 754), 317, 383. Penri. R. Co. v. Clark Bros. Coal Co. (238 U. S. 456, 59 L. Ed. 140G, 35 Sup. Ct. 896), 198, 317, 383. Penn. R. Co. v. Hughes (191 U. S. 477, 48 L. Ed. 268, 24 Sup. Ct. 132), 32, 34. Penn. R. Co. v. International Coal Co. (173 Fed. 1, 97 C. C. A. 383), 138, 205, 208, 215, 383. Penn. R. Co. v. International Coal Mining Co. (230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 893), 134, 137, 138, 205, 208, 215, 297, 317, 383, 443. Penn. R. Co. v. Int. Com. Com. (193 Fed. 81), 208, 383. Penn. R. Co. v. Jacoby (239 U. S. 631, 60 L. Ed. 476, 36 Sup. Ct. 166), 408. Penn. R. Co. v. Jacoby (242 U. S. 89, 61 L. Ed. 165, 37 Sup. Ct. 49), 208, 317, 407, 408. Penn. R. Co. v. Kittaning Iron & Steel Mfg, Co. (252 U. S. — , 64 L. Ed. — , 40 Sup. Ct. — ), -25. Penn. R. Co. v. Knight (192 U. S. 21, 48 L. Ed. 325, 24 Sup. Ct. 202), 55. Penn. R. Co. v. Minds (250 U. S. 368, 63 L. Ed. 665, 39 Sup. Ct. 531), 208, 383. Penn R. Co. v. Olivit Bros. (243 U. S. 574, 61 L. Ed. 908, 37 Sup. Ct. 468), 371, 440. Penn. R. Co. v. Puritan Coal Co. (237 Pa. 420, 85 Atl. 426, Ann. Cas. 1914B, 37), 174, 296, 405. Penn. R. Co. v. Puritan Coal Co. (237 U. S. 121, 59 L. Ed. 867, 35 Sup. Ct. 484, 214 Fed. 445), 61, 174, 198, 292, 296, 407. Penn. R. Co. v. Sonman Shaft Coal Co. (242 U. S. 120, 61 L. Ed. 188, 37 Sup. Ct. 46), 2, 24, 292, 383. Penn. R. Co. v. Stineman Coal Mining Co. (242 U. S. 298, 61 L. Ed. 316. 37 Sup. Ct. 118), 208, 292, 297. Penn. R. Co. v. Swift & Co. (242 Fed. 92, 249 Fed. 315), 481. Penn. R. Co. v. Towers (245 U. S. 6, 62 L. Ed. 117, 38 Sup. Ct. 2), 43. Penn. R. Co. v. United States (257 Fed. 261, — C. C. A. — ), 371. Penn. R. Co. v. United States (236 U. S. 351, 59 L. Ed. 616, 35 Sup. Ct. 370, P. U. R. 1915B, 261), 73, 150, 192, 195, 347, 396b, 404. Pennsylvania Sugar Refining Co. v. Am. Sugar Ref. Co. (160 Fed. 144), 492. 104 Table of Cases Cited. [References are to Sections.] Pennsylvania Sugar Refining Co. v. Am. Sugar Ref. Co (166 Fed. 254, 92 C. C. A. 318), 492. Pennsylvania Tob. Co. v. Old Dominion S. S. Co. (18 I. C. C. 197). 101 Pensacola & A. R. Co. v. Florida (25 Fla. 310, 5 So. 833), 49. .^ensacola Tel. Co. v. Western U. Tel. Co. (96 U. S. 1, 24 L. Ed. 708), 2. People V. Board of R. R. Comrs. (53 App. Div. (N. Y.) Gl), 49. People v. Booth & Co. (42 Misc. 327, 86 N. Y. Sup| 272). 58. People V. Bootman (180 N. Y. 1. 72 N. E. 505), 58. People V. Budd (117 N. Y. 1, 5 L. R. A. 559, 22 N. E. 670), 45. People V. Buffalo Fish Co. (164 N. Y. 93, 58 N. E. 34, 79 Am. St. Rep. 622, 52 L. R. A. 803), 58. People V. Caldwell (71 N. Y. Sup. C54, 64 App. Div. 46), 37. People V. Chicago & N. W. Ry. (57 111. 436, 93 N. E. 112), 13. People V. Chicago, I. & L. Ry. Co. (223 111. 581, 79 N. E. 144), 432. People V. D. & H. Canal Co. (32 N. Y. App. Div. 120, 52 N. Y. Supp. 850, 165 N. Y. 362, 59 N. E. 138), 9. People V. Erie R. Co. (135 App. Div. 767, 119 N. Y. Supp 893), 4. People V. Erie R. Co. (198 N. Y. 369, 91 N. E. 849), 4. People V. Joline (65 Misc. Rep. 394, 121 N. Y. Sup. 857), 27. People V. N. Y. L. E. & W. R. Co. (104 N. Y. 58, 9 N. E. 856), 9. People V. New York, etc., R. Co. (55 Hun 409, 8 N. Y. Sup. 673), 31. People V. O'Neal (110 Mich. 324, 68 N. W. 227, 33 L. R. A. 697), 33. People V. St. L. A. & T. H. R. Co. (176 111. 512, 52 N. E. 292), 49. People V. Stevens (197 N. Y. 1, 90 N. E. 60), 51. People V. Warden of City Prison (157 N. Y. 116, 51 N. E. 1006, 43 L. R. A. 264, 68 Am. St. 763), 37. People's Fuel & Supply Co. v. G. T. W. R. Co. (27 I. C. C. 24). 399. People's Fuel Co. v. G. T. W. R. Co. (30 I. C. C. 657), 397. People's Tobacco Co. v. Am. Tob. Co. (170 Fed. 396, 96 C. C. A. 566), 486. Perishable Freight Investigation (56 I. C. C. 499), 81, 161. Perry v. Florida, C. & P. R. Co. (5 I. C. C. 97, 3 I. C. R. 740), 348, 383. Pettibone v. United States (148 U. S. 197, 37 L. Ed. 419, 13 Sup Ct. 542), 486. ?helps V. Texas & Pac. R. Co. (6 I. C. C. 36, 4 I. C. R. 44), 345. Philadelphia & R. R. Co. v. United States (240 U. S. 334, 60 L. Fd 675, 37 Sup. Ct. 61, 247 Fed. 406, 159 C. C. A. 523), 346, 481. Philadelphia & R. Ry. Co. v. United States (219 Fed. 988). 393. Table of Cases Cited. 105 [References are to Sections.] Philadelphia B. & W. R. Co. v. Schubert (224 U. S. 603. 56 L. Ed. 911, 32 Sup. Ct. 589), 56, 332. Philadelphia Co. v. Stimson (223 U. S. 605, 56 L. Ed. 570, 32 Sup. Ct. 340), 56. Philadelphia Veneer Lumber Co. v. C. of N. J. R Co. (25 I. C. C. 653), 398. Phillips V. Grand Trunk Western R. Co. (11 I. C. C. 659), 181, 346. Phillips V. G. T. W. R. Co. (236 U. S. 662, 59 L. Ed. 774, 35 Sup. Ct. 444), 383, 385, 449. Phillips V. lola Portland Cement Co. (125 Fed. 593, 61 C. C. A. 19, 2 Fed. Anti-Trust Dec. 284), 487. Phillips V. lola Portland Cement Co. (192 U. S. 606, 48 L. Ed. 585. 24 Sup. Ct. 850), 487. Phillips, Bailey & Co. v. Louisville & N. R. Co. (8 I. C. C. 93), 346, 348. Phillips-Trawick-James Co. v. Southern Pac. Co. (13 I. C. C. 644), 5. Phoenix Printing Co. v. M. K. & T. R. Co. (31 I. C. C. 289), 383. Phoenix Ry. v. Geary (239 U. S. 277, 60 L. Ed. 287, 36 Sup. Ct. 45), 12. Pickering Phipps v. London & N. W. Ry. Co. (2 Q. B. D. (1882) 229), 128, 348. Pictorial Review v. Curtis Pub. Co. (255 Fed. 206), 486. Pierce Co. v. Wells-Fargo Ex. Co. (236 U. S. 278, 59 L. Ed. 576, 35 Sup. Ct. 351), 439. Pig Iron Rates from Va. to Penn. (27 I. C. C. 343), 351. Pipe Line Case (204 Fed. 798), 381. Pipe Line Cases (See United States v. Ohio Oil Co.) (2M U. S. 548, 58 L. Ed. 1459, 34 Sup. Ct. 95), 381, 486. Pitts v. St. L. & S. F. R. Co. (10 I. C. C. 684), 358. Pittsburg, etc., R. Co. v. Baltimore & O. R. Co. (3 I. C. C. 465, 2 I. C. R. 572), 345, 358. 444. Pittsburg, C. C. & St. L. R. Co. v. Fink (250 U. S. 577, 63 L. Ed. 1151, 39 Sup. Ct. — ), 295, 346a, 440. Pittsburg, C. C. & St. L. R. Co. v. Hunt (171 Ind. 189, 86 N. E. 328), 9, 13. Pittsburg, C. C. & St. L. R. Co. v. Wood (84 N. E. 1009), 297. Pittsburg Steel Co. v. P. & L. E. R. Co. (39 I. C. C. 312), 208. Pittwood v. N. P. Ry. Co. (51 I. C. C. 535), 205. Planters' Compress Co. v. Cleveland, etc., Ry. Co. (11 I. C. C. 382, 606), 116, 339, 345. Planters' Gin & Compress Co. v. N. Y. & M. V. R. Co. (16 I. C. C. 131), 346. Piatt V. Le Cocq (150 Fed. 391, 158 Fed. 723, 85 C. C. A. 621, 15 L. R. A. (N. S.) 558), 8, 60. 106 Table of Cases Cited. 1 References are to Sections.] Plessy V. Ferguson (163 U. S. 537, 41 L. Ed. 256, 16 Sup. Ct. 1138), 29. Plynaouth Coal Co. v. P. R. R. Co. (56 I. C. C. 689), 383. Pneumatic Scale Corp. v. A. & R. R. Co. (51 I. C. C. 686), 346. Poehlman Bros. Co. v. C. M. & St. ?. Ry. Co. (30 I. C. C. 89), 254. 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. 26), 345, 346. Pond-Decker Lumber Co. v. Spencer (86 Fed. 846, 30 C. C. A. 430), 180, 212, 358. Pooling Freights, Re (115 Fed. 588), 352, 384. Poor V. Chicago, B. & Q. R. Co. (12 I. C. C. 469), 416. Poor Grain Co. v. Chicago, B. & Q. R. Co. (12 I. C. C. 418), 180, 212, 339, 358, 361, 383. Port Huron & Duluth S. S. Co. v. P. R. Co. (35 I. C. C. 475), 151, 194, 338. Port Huron & Duluth S. S. Co. v. P. R. Co. (35 I. C. C. 475), 194. Port Richmond Ferry v. County of Hudson (234 U. S. 317, 58 L. Ed. 1330, 34 Sup. Ct. 821, 82 N. J. L. 536, 82 Atl. 729), 53. Porter v. St. L. & P. R. Co. (78 Ark. 182, 95 S. W. 953), 40. Portland Ry. L. & P. Co. v. R. R. Com. of Oregon (229 U. S. 397, 57 L. Ed. 1248, 33 Sup. Ct. 820, 56 Ore. 468, 105 Pac. 709), 43. Post V. A. C. L. Co. (138 Ga. 763, 76 S. E. 45), 34, 295. Post V. Buck Stove & Range Co. (200 Fed. 918), 486. Post Prtg. & Pub. Co. V. Brewster (246 Fed. 321), 2. Postal Tel. Cable Co. v. Adams (155 U. S. 688, 39 L. Ed. 311, 15 Sup. Ct. 360), 314. Postal Tel.-Cable Co. v. Mobile (179 Fed. 955), 2, 28. Postal Tel. & Cable Co. v. Warren-Godwin Lumber Co. (251 U. S. 27, 64 L. Ed. — , 40 Sup. Ct. — ), 440. Potlack Lumber Co. v. Spokane Falls & B. Ry. Co. (157 Fed. 588). 304, 443. Pound V. Turck (95 U. S. 459, 24 L. Ed. 525), 54. Powhattan Coal & Coke Co. v. Norfolk & W. R. Co. (13 I. C. C. 69), 175, 346. Prairie Oil & Gas Co. v. United States (204 Fed. 798), 67, 335, 387, 486. Prentis v. Atlantic C. L. R. Co. (211 U. S. 210, 53 L. Ed. 150, 29 Sup. Ct. 67), 60, 63. Prescott & A. C. R. Co. v. Atchison, T. & S. F. R. Co. (73 Fed. 438, 1 Fed. Anti-Trust Dec. 604), 149, 347, 486. Private Wire Contracts (50 I. C. C. 731), 116, 340. Table of Cases Cited. 107 [References are to Sections.] Procter & Gamble v. Cincinnati, H. & D. R. Co. (4 I. C. C 443, ?> I. C. R. 374), 102, 416. Procter & Gamble v. C. H. & D. R. Co. (y I. C. C. 440, 19 I. C. C. 556), 142a, 162, 178, 339. Procter & Gamble v. United States (188 Fed. 221), 308. Procter & Gamble v. United States (225 U. S. 282, 56 L. Ed. 1091, 32 Sup. Ct. 761), 26, 222, 308a. Producers' Pipe Line Co. v. St. Louis, L M. & S. Ry. Co. (12 I. C. C. 186), 392. Propeller Niagara v. Cordes (21 How. 62 U. S. 7, 16 L. Ed. 41), 55. Proportional Rates to Gulf Ports (44 I. C. C. 543), 348 Protection of Potatoes in Winter (26 L C. C. 681), 337. Providence Coal Co. v. Providence & W. R. Co. (1 I. C. C. 107, 1 I. C. R. 316, 363), 345, 346. Provident Institution v. Massachusetts (6 Wall., 72 U. S 611, 18 L. Ed. 907), 59. Public Service Com. of Wash. v. A. & V. Ry. Co. (42 I. C. C. 54), 346. Public Utilities Com. v. Landon (249 U. S. 236, 63 L. Ed. — , 39 Sup. Ct. — ), 335. Public Utilities Com. v. New England Tel. & Tel. Co. (232 Mass. 465, 122 N. E. 567, P. U. R. 1919D, 49, 4 A. L. R. 1662m. 250 U. S. 195, 63 L. Ed. 934, 39 Sup. Ct. 511), 335. Pueblo Transportation Asso. v. Southern Pac. Co. (14 I. C. C. 82), 358. Paget Sound Traction Light & Power Co. v. Reynolds (233 Fed. 371), 43. Pullman Co. v. Croom (231 U. S. 571, 58 L. Ed. 375, 34 Sup. Ct. 182), 453. Pullman Co. v. Kansas (216 U. S. 56, 54 L. Ed. 378, 30 Sup. Ct. 232). 59. Pullman ( c. v. Linke (203 Fed. 1017), 42, 335. Pullman Palace Car Co. v. Missouri Pac. Co. (115 U. S. 587, 29 L. Ed. 499, 6 Sup. Ct. 194), 347. Puritan Coal Mining Co. v. P. R. Co. (237 Pa. 448, 85 Atl 426, Ann. Cas. 1914P, 37), 405. Purity Extract Co. v. Lynch (226 U. S. 192, 57 L. Ed. 84, 33 Sup. Ct. 44, Ku Misp. 650, 56 So. 316), 58. Q. Queen, The (184 Fed. 537, 206 Fed. 148, 124 C. C. A. 214), 56. Quimby v. Clyde S. S. Co. (12 I. C. C. 392), 346. Quintal & Lynch v. Florida E. C. R. Co. (57 I. C. C. 289), 68. 108 Table of Cases Cited. IReferences are. to Sections.] R. Rahway V. R. Co. v. Delaware, L. & W. R. Co. (14 I. C. C. 191) 66, 344, 347. Rail & River Coal Co. v. Baltimore & O. R. Co. (14 I. C. C. 86), 175, 395. Rail & River Coal Co. v. Yaple (214 Fed. 273), 453. Railroad Commission Cases (See Stone v. Farmers' L. & T. Co.) (116 U. S. 307, 29 L. Ed. 636, 6 Sup. Ct. 334). Railroad Com. of Ala. v. Cent, of Ga. Ry. Co. (170 Fed. 225), 50. Railroad Com. of Ark. v. St. L. I. M. & S. R. Co. (24 I. C. C. 293), 347. Railroad Com. of Ark. v. M. & N. A. R. Co. (30 I. C. C. 488), 98. Railroad Com. of Fla. v. F. E. C. R. Co. (42 I. C. C. 616), 337. Railroad Com. of Fla. v. Savannah, F. & W. R. Co. (5 I. C. C. 13, 3 I. C. R. 688), 335, 392, 394. Railroad Com. of Fla. v. Savannah, F. & W. R. Co. (5 I. C. C. 136, 3 I. C. R. 750), 335, 416. Railroad Com. of Ga. v. L. & N. R. Co. (148 Ga. 442). 11. Railroad Com. of Ga., Trammell, et al., v. Clyde S. S. Co. (5 I. C. C. 324, 4 I. C. R. 120), See Trammell v. Clyde S. S. Co. Railroad Cora, of Ga. v. L. & N. R. Co. (140 Ga. 817, 80 S. E. 327), 442. Railroad Com. of Iowa v. I. C. R. Co. (20 I. C. C. 181), 126. Railroad Com. of Kansas v. Atchison, T. & S. F. Ry. Co. (8 I. C. C. 304), 346, 348. Railroad Com. of Kansas v. A. T. & S. F. R. Co. (22 I. C. C. 407), 124. Railroad Com. of Kansas v. M. P. R. Co. (71 Kan. 193, 80 Pac. 53), 9. Railroad Com. of Kentucky v. Cincinnati, N. O. & T. P. R. Co. (7 I. C. C. 380), 348. Railroad Com. of Kentucky v. Louisville & N. R. Co. (10 I. C. C. 173), 197, 347. Railroad Com. of Kentucky v. Louisville & N. R. Co. (13 I. C. C. 300), 348. Railroad Com. of Ky. v. Louisville & N. R. Co. (192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. 339), 9. Railroad Com. of La. v. A. H. T. Ry. Co. (41 I. C. C. 83, 43 I. C. C. 45), 44, 139a. Railroad Com. of Louisiana v. St. L. S. W. Ry. Co. (23 I. C. C. 31), 3, 44, 62, 68, 145, 184, 222, 336, 346. Railroad Com. of La. v. T. & P. R. Co. (229 U. S. 336, 57 L. Ed. 1215, 33 Sup. Ct. 837), 68. Railroad Com. of Mississippi v. 111. Cent. R. Co. (203 U. S. 335, 51 L. Ed. 209, 27 Sup. Ct. 90), 21. Table of Cases Cited. 109 [References are to Sections.] Railroad Com. of Mississippi v. Gulf & S. I. R. Co. (78 Miss. 750, 29 So. 789), 27. Railroad Com. of Montana v. B. A. & P. Ry. Co. (31 I. C. C. 641), 88, 98, 100. Railroad Com. of Nevada v. S. P. Co. (21 I. C. C. 329), 63, 145, 154, 202, 244, 345, 346, 348. Railroad Com. of Ohio v. Hocking Valley R. Co. (12 I. C. C. 398). S46, 395. R. R. Com. of Ohio v. Worthington (225 U. S. 101, 5G L. Ed. 1004, 32 Sup. Ct. G53), 25. Railroad Com. of Ohio v. Worthington (187 Fed. 965, 110 C. C. A. 85, 225 U. S. 101, 56 L. Ed. 1004, 32 Sup. Ct. 053), 25, 66, 68, 335. Railroad Com. of S. C. v. Columbia & G. R. Co. (26 S. C. 353, 2 S. E. 127), 9. Railroad Com. of Tex. v. Texas & P. R. Co. (40 S. W. 829), 27. Railroad Com. of Tenn. v. A. A. R. R. Co. (17 I. C. C. 418), 345, 346. Railroad Co. of Tex. v. A. T. & S.F. R. Co. (20 I. C. C. 463), 95, 124. Railroad Com. of Tex. v. C. R. I. & P. R. Co. (114 S. W. 192. 102 Tex. 393, 17 S. W. 794), 9. Ralston Townsite Co. v. M. P. R. Co. (22 I. C. C. 354), 192. Randolph Lumber Co. v. Seaboard A. L. Ry. Co. (13 I. C. C. 601), 117, 346. Randolph Lumber Co. v. Seaboard A. L. Co. (14 I. C. C. 338), 416. Ransome v. Eastern Counties Ry. Co. (1857), (1 C. B. N. S. 437). (26 L. J. C. P. 91), 128, 144. Rasmussen v. Idaho (181 U. S. 198, 45 L. Ed. 820, 21 Sup. Ct. 594), 58. Rast V. Van Deman & Lewis Co. (240 U. S. 342. 60 L. Ed. 679, 36 Sup. Ct. 370), 58. Rates and Rules on Shipments of Packing House Products (36 I. C. C. 62), 81a, 142. Rates for Transportation of Anthracite Coal (35 I. C. C. 220), 66. Rates for Transportation of Fresh Meats and Packing House Products (23 I. C. C. 652), 145. Rates from the Walsenberg Coal Field (26 I. C. C. 85), 145. Rates on Barley from Cal. (24 I. C. C. 664), 398. Rates on Beer and Other Malt Products (31 I. C. C. 544), 6, 44, 62, 119, 254, 336, 398, 399. Rates on Car Load Stone (29 I. C. C. 136). 223, 399. Rates on Cement from Md. to Va. (24 I. C. C. 290), 398, 399. Rates on Corn (25 I. C. C. 46), 399. Rates on Cotton Seed and Its Products (28 I. C. C. 219). 401. no Table of Cases Cited. r References are to Sections.] Rates on Flax Seed (29 I. C. C. G33, 23 I. C. C. 272), 88, 95. Rates on High Explosives (33 I. C. C. 567), 335. Rates on Lumber and Other Forest Products (30 L C. C. 371), 397, 398, 400. Rates on Lumber by V. S. & P. R. Co. (21 L C. C. 16), 398. Rates for Transportation of Locomotives (21 I. C. C. 103), 399. Rates on Live Poultry (32 I. C. C. 380), 119, 259, 336, 398. Rates on Meats (23 I. C. C. 656), 401. Rates on Tropical Fruits (30 L C. C. 621), 348. Rates on Sugar (31 L C. C. 495), 348. Rates on Slag (34 L C. C. 337), 358. Ratican v. Terminal R. Asso. (114 Fed. 666), 218, 383. Raworth v. Northern Pac. R. Co. (5 I. C. C. 234, 3 I. C. R. 857), 335, 348. Rawson v. Newport News & M. V. R. Co. (3 I. C. C. 266, 2 L C. R. 626), 206, 383, 406. Raymond v. Chicago, M. & St. P. Ry. Co. (1 I. C. C. 230, 1 I. C. R. 627), 339, 345, 346. Rayner v. L. & N. R. Co. (33 L C. C. 595), 383. Re Advances on Coal to Lake Ports (22 L C. C. 604), 81. Re Advances Class & Commodity Rates (25 I. C. C. 401), 398. Re Advances Class Rates (25 L C. C. 268), 398. Re Advances on Crushed Stone (29 I. C. C. 136), 223. Re Advances on Furniture (25 L C. C. 299), 398. Re Advances on Hay (25 L C. C. 680), 378, 393. Re Advances on Hops (25 I. C. C 16), 398. Re Advances on Knitting Factory Products (25 L C. C. 034), 398. Re Advances on Live Stock (25 I. C. C. 63), 398. Re Advances on Lumber (21 I. C. C. 455), 258, 399. Re Advances on Manganese Ore (25 I. C. C. 663), 138, 398. Re Advances on Oil (25 L C. C. 349), 398. Re Advances in Rates on Potatoes (23 I. C. C. 69), 399. Re Advances in Rates on Potatoes (25 L C. C. 159), 175. Re Advances in Rates between Miss. & Mo. River (21 I. C. C. 546), 207. Re Advances in Rates on Soft Coal (23 L C. C. 518), 258, 399. Re Alleged Disturbance in Passenger Rates by Canadian Pacific Ry. Co. (8 I. C. C. 71), 348. r;e Alleged Excessive Rates on Food Products (4 I. C. C. 48, 116, 3 L C. R. 93, 151), 82, 85, 88, 90, 101, 339, 392. Re Alleged Unlawful Charges for Transportation of Vegetables (8 I. C. C. 585), 358. Table of Cases Cited. Ill I References are to Sections.] Re Alleged Unlawful Charges for Transportation of Coal (5 I. C. C. 466, 4 I. C. R. 157), 345. Re Alleged Unlawful Discrimination against Enterprise Transporta- tion Co. (11 I. C. C. 587), 397. Re Alleged Unlawful Rates and Practices (7 I. C. C. 240), 67, 165. }\e Alleged Unlawful Rates and Practices in Transportation of Coal (10 I. C. C. 473), 358. Re Alleged Unlawful Rates and Practices in Transportation of Cot- ton (8 I. C. C. 121), 335. Re Alleged Unlawful Rates and Practices in Transportation of (Jrain (7 I. C. C. 33), 164, 345. Re Alleged Unlawful Rates and Practices in Transportation of Grain and Grain Products (7 1. C. C. 240), 345, 358. Re Alleged Violations of tlie Act by the St. Louis & S. F. Ry Co. (8 I. C. C. 290), 335, 346, 348. Re Alleged Violation of Fourth Section (7 I. C. C. 61), 348. Re Allowances (12 I. C. C. 85), 197, 404. Re Allowances for Transfer of Sugar (14 I. C. C. 619), 140. Re Allowances to Elevator by Union Pacific R. Co, (10 I. C C. 309), 197. Re A^llowances to Elevator by Union Pacific R. Co. (12 I. C. C. 85), 197, 395, 416. Re Allowances to Elevators by Union Pacific R. Co. (13 I. C. C. 498), 416. Re Allowances to Elevators by Union Pacific R. Co. (14 I. C. C. 315), 168, 337. Re Amsterdam (33 N. Y. Supp. 1009), 49. Re Application of Atchison, T. & S. F. Ry. Co. (7 I. C. C. 593), 348. Re Application of F. W. Clark (3 I. C. C. 649, 2 I. C. R. 797), 397. Re Application of Fremont, E. & M. V. R. Co., et al. (6 I. C. C. 293), 348. Re Application of Rome, W. & O. R. Co. (6 I. C. C. 328), 348. Re Application of Southern Pacific 4th Sec. (22 I. C. C. 366), 244 Re Arkansas Rates (163 Fed. 141, 187 Fed. 290), 49. Re Atlanta & West Point R. Co. (3 I. C. C. 19, 46, 2 I. C. R. 461), 348, 358. Re Belknap (96 Fed. 614), 386. Re Bills of Lading (14 I. C. C. 346), 252. Re Bills of Lading (29 I. C. C. 417), 36, 252. Re Carriage of Persons Free (5 I. C. C. 69, 3 I. C. R. 613, 717), 342, 345, 442. 112 Table of Oases Cited. [References are to Sections.] Re Charge to Grand Jury (66 Fed. 146). 345, 346, 442. Re Charge to Grand Jury (151 Fed. 834), 486. Re Charges for Transportation and Refrigeration of Fruit (10 I. C. C 360), 358. Re Charges for Transportation and Refrigeration of Fruit (11 I. C. C. 129), 80, 335, 358. Re Chicago, St. P. & K. C. Ry. Co. (2 I. C. C. 231, 2 I. C. R. 137), 339. Re Class and Commodity Rates from St. Louis to Texas (11 I. C. C. 238), 83, 92, 96, 100, 103, 339, 486. Re Classification of Atlanta & West Point R. Co. (3 I. C. C. 19, 2 I. C. R. 461), 348, 358. Re Coal Rates on Stony Fork Branch (26 L C. C. 168), 151, 175. Re Commutation Tickets to School Children (27 I. C. C. 144), 138. Re Complaint of Illinois Central R. Co. (12 I. C. C. 7). 342, 442. Re Contracts of Express Companies (16 I. C. C. 246). 342. Re Contracts for Free Transportation (16 I. C. C. 246), 342, 358. Re Corning (51 Fed. 205, 1 Fed. Anti-Trust Dec. 33), 487. Ke Debs (158 U. S. 564, 39 L. Ed. 1092, 15 Sup. Ct. 900, 1 Fed. Anti- Trust Dec. 565), 486. Re Deininger (108 Fed. 623), 58. Re Demurrage Investigation (19 I. C. C. 496), 25. Re Differential Freight Rates To and From North Atlantic Porta (11 I. C. C. 13), 346. Re Divisions of Joint Rates and Other Allowancess to Terminal Roads (10 I. C. C. 385), 345. Re Elevation Allowances (24 I. C. C. 197). 337. Re Exchange of Free Transportation (12 I. C. C. 39), 335, 342. Re Export and Domestic Rates on Grain (8 I. C. C. 214), 358. Re Export Rates from Points East and West of Mississippi River 8 I. C. C. 185), 358. Re Export Rates of Flax Seed Products (27 I. C. C. 246), 99. Re Express Companies (1 I. C. C. 349, 1 I. C. R. 677), 335, 337, 357. Re Filing Copies of Joint Tariffs by Traffic Combinations (1 I. C. C. 76), 358. Re Filing of Joint Tariffs (1 I. C. C. 657, 2 I. C. R. 9), 358. Re Form and Contents of Rates Schedules (6 I. C. C. 267, 4 I. C. R. 698). 358, 366. Re Free Transportation of Newspaper Employees (12 I. C. C. 15), 342, 442. Re Freight Bills (29 I. C. C. 496). 403. Re Freight Rates Between Memphis and Points in Arkansas (11 I. C. C. 180), 346, 392. Table of Cases Cited. 113 I References are to Sections.] Re Grand Jury (62 Fed. Anti-Trust Dec. 301), 486. Re Greene (52 Fed. 104, 1 Fed. Anti-Trust Dec. 54), 487. Re Gregory (219 U. S. 210, 55 L. Ed. 184, 31 Sup. Ct. 143), 58. Re Hale (139 Fed. 496, 2 Fed. Anti-Trust Dec. 804), 486. Re Hohorst (150 U. S. 653, 37 L. Ed. 1211, 14 Sup Ct. 221), 307. Re Huntington (68 Fed. 881), 346. Re Indian Supplies (1 I. C. C. 15, 1 I. C. R. 22), 442. Re Investigation of Acts of Grand Trunk Ry. of Canada (3 I. C. C. 89, 2 I. C. R. 490), 65, 335, 358, 392. Re Investigation of Advances on Transportation of Locomotives and Tenders (21 I. C. C. 103), 127. Re Interstate Commerce Commission. Application for Order Against Brimson, et al. (53 Fed. 476), 389, 390. Re Issuance and Use of Passes (26 I. C. C. 491, 29 I. C. C. 411), 182. Re Joint Rates vi^ith The Birmingham Southern (32 I. C. C. 110), 171. Re Jurisdiction in Alaska (19 I. C. C. 81), 335. Re Jurisdiction Over Water Carriers (15 I. C. C. 205), 69, 335. Re Louisville & N. R. Co. (1 I. C. C. 84, 1 I. C. R. 287), 108, 199. Re Louisville Underwriters (134 U. S. 488, 33 L. Ed. 991, 10 Sup. Ct. 587), 307. Re Lumber Rates (21 I. C. C. 455), 399. Re Lumber Rates to Ohio River Crossings (25 I. C. C. 50), 244. Re Mileage Books (28 I. C. C. 318), 442. Re Mileage Excursion and Commutation Tickets (23 I. C. C. 95), 442. Re Party Rate Tickets (12 I. C. C. 95), 345, 444. Re Through Passenger Routes via Portland (16 I. C. C. 300), 120. Re Passenger Tariffs (2 I. C. C. 649, 2 I. C. R. 445), 345, 358, 361, 444. Re Passenger Tariffs and Rates Wars (2 I. C. C. 513, 2 I. C. R. 340), 358, 361. Re Passes to Clergymen (15 I. C. C. 45), 342. Re Peasley (44 Fed. 271), 384, 390. Re Petition of Cincinnati, H. & D. R. Co. for Relief Under Section Four (6 I. C. C. 323), 348. Re Petition of Louisville & N. R. Co. and Southern Ry. & S. S. Co. 1 I. C. C. 57, 1 I. C. R. 278). 152, 339, 348. Re Petition of Order of Railway Conductors (1 I. C. C. 8, 1 I. C. R. 18), 392. Re Petition of Produce Exchange (2 I. C. C. 588, 2 I. C. R. 412), 263, 392, 416. Re Pig Iron Rates from Va. (27 I. C. C. 343), 24G. 114 Table of Cases Cited. [References are to Sections.] Re Pipe Lines (24 L C. C. 1), 335, 381. R.: Pooling Freights (115 Fed. 588), 352, 384. Re Powers and Procedure of the Commission (1 I. C. C. 223, 1 I. C. R. 408), 392. Re Practices Governing Sale of Mileage Books (28 I. C. C. 318), 38. Re Precooling and Preicing (23 I. C. C. 267), 222, 398. Re Proposed Advance in Freight Rates (9 I. C. C. 382), 82, 85, 99, 100, 339. Re Publication of Joint Tariffs (1 I. C. R. 598), 358. Re Railroad-Telegraph Contracts (12 I. C. C. 10), 342, 442. Re Rate Sheets (1 I. C. R. 316), 358. Re Rates and Practices of the Mobile & Ohio R. Co. (9 L C. C. 373), 345. Re Rates on Corn and Corn Products (11 I. C. C. 212, 220), 346. Re Rates on Crushed Stone (29 I. C. C. 136), 223. Re Rates on Crushed Stone (24 I. C. C. 192), 244. Re Rates on R. R. Fuel and Other Coal (36 L C. C. 1), 89. Re Rates on Salt (24 I. C. C. 192), 348. Re Reduced Rates on Returned Shipments (19 I. C. C. 409), 88, 90, 123, 345. Re Relative Tank & Barrel Rates (2 I. C. C. 365, 2 L C. R. 245), 392. Re Released Rates (13 I. C. C. 550), 34, 88, 90, 339, 358. 439. Re Religious Teachers (1 I. C. R. 21), 346. Re Restricted Rates (20 I. C. C. 426), 89, 137, 185, 346. Re Right of Railroad Companies to Exchange Free Transportation with Local Transfer Companies (12 I. C. C. 39), 337, 442. Re Substitution of Tonnage in Transit Points (18 L C. C. 280), 164. Re Southern Pacific Co. (155 Fed. 1001), 333. Re Southern Pacific Co. (1 L C. R. 16), 199. Re Southern Ry. & S. S. Asso. (Re Petition of Louisville & N. R. Co.) (1 I. C. C. 31, 1 I. C. R. 278), 199. Re Suspension of Western Classification, See Western Classification. Re Tariffs and Classification of Atlanta & West Point R. Co. (3 I. C. C. 19, 24, 2 I. C. R. 461), 108, 348, 358. Re Tariffs of Transcontinental Lines (2 I. C. C. 324, 2 I. C. R. 203), 110, 346, 358. Re Tariffs on Export and Import TraflSc (10 I. C. C. 55), 35. Re Terrell (51 Fed. 213, 1 Fed. Anti-Trust Dec. 46), 487. Re Through Passenger Routes via Portland (16 I. C. C. 300), 120. Re Through Routes and Through Rates (12 I. C. C. 163), 338, 358, 361. Re Transportation of Fruit (10 I. C. C. 360), 197. Table of Cases Cited. 115 [References are to Sections.] Re Transportation of Immigrants (10 I. C. C. IS), 352. Re Transportation of Lime (24 I. C. C. 170), 244. Re Transportation of Newspaper Employees (12 I. C. C. 15), 342. Re Transportation of Salt (10 I. C. C. 148), 345. Re Transportation of Wool, Hides and Pelts (23 I. C. C. 151), 244. Re Underbilling (1 I.C. C. 633, 1 I. C. R. 813), 385. Re Unlawful Charges for Transportation of Coal by Louisville & N. R. Co. (5 I. C. C. 466, 4 I. C. R. 157), 345. Re Unlawful Rates and Practices (7 I. C. C. 240), 67. Re Unlawful Rates in the Transportation of Cotton (8 I. C. C. 121), 163. Re Wharf Facilities Pensacola, Fla. (27 I. C. C. 252), 241, 343. Re Wharfage Charges at Galveston (23 I. C. C.-535), 196. Re When a Cause of Action Accrues (15 I. C. C. 201), 218, 408. Re Wichita Palls System Joint Coal Rates (26 I. C. C. 215), 145. Re Winn (213 U. S. 458, 53 L. Ed. 873, 29 Sup. Ct. 515), 292. Re Wool Hides & Pelts (25 I. C. C. 675), 207. Rea V. Mobile & O. R. Co. (7 I. C. C. 43), 105, 358, 383. Reagan v. Farmers' Loan & Trust Co. (154 U. S. 362, 38 L. Ed. 1014, 4 I. C. R. 560, 14 Sup. Ct. 1047), 45, 49, 60, 63, 84. Rearick v. Pennsylvania (203 U. S. 507, 51 L. Ed. 295, 27 Sup. Ct. 159), 58. Receivers' & Shippers' Asso. of Cincinnati v. C. N. O. & T. P. R. Co. (18 I. C. C. 440), 266. Red "C" Oil Co. v. North Carolina (222 U. S. 380, 56 L. Ed. 240, 32 Sup. Ct. 152, 172 Fed. 695), 58. Red River Oil Co. v. T. & P. Ry. Co. (23 I. C. C. 438), 116. Red Rock Fuel Co. v. Baltimore & O. R. Co. (11 I. C. C. 438), 344. Reduced Rates on Returned Shipments (19 I. C. C. 409), 88, 90, 123, 345. Red Wing Linseed Co. v. Chicago, M. & S. P. R. Co. (15 I. C. C. 47), 309. Reeser v. Philadelphia & R. Ry. Co. (215 Pa. 136, 64 Atl. 376), 13. Reeves v. Tex. & P. R. Co. (32 S. W. 920), 32. Regulations Restricting the Dimensions of Baggage (26 I. C. C. 292). 341, 358. Reid V. Colorado (187 U. S. 137, 47 L. Ed. 108, 23 Sup. Ct. 92), 58. Rend V. Chicago & N. W. R. Co. (2 I. C. C. 540, 1 I. C. R. 793, 2 I. C. R. 313), 345. Reno Grocery Co. v. S. P. Co. (23 I. C. C. 400), 254. Reynolds v. Southern Ex. Co. (13 I. C. C. 536), 346. 116 Table of Cases Cited. [References are to Sections.] Reynolds v. Western N. Y. & P. R. Co. (1 I. C. C. 393, 1 I. C. R. 685), 339. Reynolds Bros. Lumber Co. v. T. F. Ry. Co. (42 I. C. C. 421), 400. Reynolds Tob. Co. v. A. & So. Ry. Co. (39 I. C. C. 371), 345. Rhinelander Paper Co. v. Northern Pac. R. Co. (13 I. C. C. 633), 346. Rhodes v. Iowa (170 U. S. 412, 42 L. R. A. 1088, 18 Sup. Ct. 664), 58. Rice V. Atchison, T. & S. F. R. Co. (4 I. C. C. 228, 3 I. C. R. 263), 348. Rice V. Cincinnati, W. & B. R. Co. (5 I. C. C. 193, 3 I. C. R. 841), 145a, 345, 346. Rice V. Cincinnati, W. & B. R. Co. (3 I. C. C. 186, 2 I. C. R. 584), 389, Rice V. L. & N. R. Co. (1 I. C. C. 503, 722, 1 I. C. R. 354), 142a, 345. Rice V. Standard Oil Co. (134 Fed. 464, 2 Fed. Anti-Trust Dec. 633), 492. Rice V. Western N. Y. & P. R. Co. (1 I. C. C. 503, 1 I. C. R. 354, 376, 443, 722), 345. Rice V. Western N. Y. & P. R. .Co. (2 I. C. C. 389, 2 I. C. R. 298), 339, 345, 346, 416. Rice V. Western N. Y. & P. R. Co. (4 I. C. C. 131, 3 I. C. R. 162), 345, 346. Rice V. Western N. Y. & P. R. Co. (6 I. C. C. 455), 346, 383, 392, 416. Rice From Texas and La. (40 I. C. C. 285), 99. Richmond & A. R. Co. v. Patterson (1G9 U. S. 311, 42 L. Ed. 759, 18 Sup. Ct. 335), 32. Richmond Chamber of Commerce v. S. A. L. R. Co. (30 I. C. C. 552, 44 I. C. C. 455), 345, 346. Richmond Elevator Co. v. Pere Marquette R. Co. (10 I. C. C. 629), 175, 383. Richmond, F. & P. R. Co. v. Richmond (96 U. S. 521, 24 L. Ed. 734), 20. Rickards v. A. C. L. R. Co. (23 I. C. C. 239), 116. Riddle, Dean & Co. v. Baltimore & O. R. Co. (1 I. C. C. 372, 1 I. C. R. 701), 206, 263, 392. Riddle, Dean & Co. v. New York, L. E. & W. R. Co. (1 I. C. C. 594, 1 I. C. R. 787), 206, 383, 406. Riddle, Dean & Co. v. Pittsburgh & L. E. R. Co. (1 I. C. C. 490, 1 I. C. R. 773), 263, 392, 416. Ridgewood Coal Co. v. L. V. R. Co. (21 I. C. C. 183), 192. Riter v. 0. S. L. R. Co. (19 I. C. C. 443), 353. Riverside Mills v. Atlantic C. L. R. Co. (168 Fed. 987), 14, 295, 439 Riverside Mills v. Ga. R. Co. (20 I. C. C. 423), 408. Riverside Mills v. Southern Ry. Co. (12 I. C. C. 388), 339. Table of Cases Cited. 117 [References are to Sections.] Robb V. Connally (111 U. S. 624, 28 L. Ed. 542, 4 Sup. Ct. .544), 295. Roberts Cotton Oil Co. v. I. C. R. Co. (21 I. C. C. 248), 107. Robert W. Parson, The (191 U. S. 17, 48 L. Ed. 73, 24 Sup. Ct. 8), 55. Robinson v. A. T. & S. F. R. Co. (36 Ok. 435, 129 Pac. 20), 439. Robinson v. B. & O. R. Co. (64 W. Va. 406, 63 S. E. 323), 208, 230, 249, 405, 443. Robinson v. B. & O. R. Co. (222 U. S. 506, 56 L. Ed. 288, 32 Sup. Ct. 114), 145, 208, 230, 294, 317, 383, 405, 443. Robinson v. Suburban Brick Co. (127 Fed. 804, 62 C. C. A. 484, 2 Fed. Anti-Trust Dec. 312), 486. Robinson Land & Lumber Co. v. M. & O. R. Co. (26 L C. C. 427), 105. Rock Hill Buggy Co. v. Southern Ry. Co. (11 I. C. C. 229), 348. Rock Spring Distilling Co. v. I. C. R. Co. (27 I. C. C. 54), 99. Rogers & Co. v. Philadelphia & R. R. Co. (12 I. C. C. 308), 383. Rollins V. S. A. L. R. R. Co. (146 N. C. 218, 59 S. E. 671), 25. Rosenberger v. Pac. Ex. Co. (241 U. S. 48, 60 L. Ed. 880, 36 Sup. Ct. 510), 58. Rosenblatt v. C. & N. W. R. Co. (18 I. C. C. 261), 213. Roswell Commercial Club v. Atchison, T. & F. Ry. Co. (12 I. C. C. 339), 339. Roth V. Texas & Pacific Ry. Co. (9 I. C. C. 602), 392. Rowland v. Boyle (244 U. S. 106, 61 L. Ed. 1022, 37 Sup. Ct. 577), 47, 50. Royal Brewing Co. v. Adams Ex. Co. (15 I. C. C. 255) 346. Royal C. & C. Co. v. Southern Ry. Co. (13 L C. C. 440), 346. Royster Guano Co. v. A. C. L. R. Co. (50 I. C. C 34), 44, 99a. Rubber Tire Wheel Co. v. Milwaukee Rubber Co. (142 Fed. 531, 2 Fed. Anti-Trust Dec. 855), 486. Rubber Tire Wheel Co. v. Milwaukee Rubber Co. (154 Fed. 358, 83 C. C. A. 336), 486. Rules and Regulations Governing Checking Baggage (35 I. C. C. 157), 37, 38. Rules Governing Shipment in Peddler Cars (32 I. C. C. 428), 142. Russe & Burges v. Int. Com. Com. (193 Fed. 678), 207, 406, 407. Ruttle V. Pere Marquette R. Co. (13 I. C. C. 179), 346. S. St. Clair Co. v. Int. Transp. Co. (192 U. S. 454, 48 L. Ed. 518, 24 Sup. Ct. 300), 53. St. Joseph Stock Yards Co. v. United States (187 Fed. 104, 110 C C. A. 432), 481. 118 Table of Cases Cited. [References are to Sections.] St. Louis & S. F. R. Co. v. Allen (181 Fed. 710), 39. St. Louis & S. F. R. Co. v. Gill (156 U. S. 649, 3-9 L. Ed. 567, 15 Sup. Ct. 484), 45, 49, 86, 87, 311. St. Louis & S. F. R. Co. v. Grayson (89 Ark. 154, 115 S. W. 933), 34. St. Louis & S. F. R. Co. v. Hadley (168 Fed. 317, 155 Fed. 220), 49, 50. St. Louis & S. F. R. Co. v. McNamare (91 Ark. 515, 122 S. W. 102), 15. St. Louis & S. F. R Co. v. Newell (25 Ok. 502, 106 Pac. 818), 30. St. Louis & S. F. R. Co. v. United States (169 Fed. 69, 94 C. C. A. 437), 481. St. Louis & St. P. R. R. Co. v. P. & P. N. Ry. Co. (26 I. C. C. 226), 400. St. Louis Drayage Co. v. Louisville & N. R. Co. (65 Fed. 39), 347. St. Louis Hay & Grain Co. v. Chicago, B. & Q. R. Co. (11 I. C. C. 82), 82, 335. St. Louis Hay & Grain Co. v. Illinois Cent. R. Co. (11 I. C. C. 486), 345. St. Louis Hay & Grain Co. v. H. & O. R. Co. (11 I. C. C. 90), 163. St Louis Hay & Grain Co. v. Southern Ry. Co. 149 Fed. 609), 345, 346, 394. St. Louis, L M. & S. Ry. Co. v. Arkansas (240 U. S. 518, 60 L. Ed. 776, 36 Sup. Ct. 443), 15, 21. St. Louis, I. M. & S. R. Co. v. Edwards (94 Ark. 394, 127 S. W. 713), 3. St. Louis, I. M. & S. R. Co. v. Edwards (227 U. S. 265, 57 L. Ed. 506, 33 Sup. Ct. 262), 3, 9, 25. St. Louis, I. M. & S. R. Co. v. Hampton (162 Fed. 693), 26. St. Louis, I. M. & S. R. Co. v. RIcNamare (91 Ark. 515, 122 S. W. 102), 15. St. Louis, I. M. & S. R. Co. v. Southern Express Co. Express Cases (117 U. S. 1, 29 L. Ed. 791, 6 Sup. Ct. 542), 327. St. Louis, I. M. & S. Ry. Co. v. Starbird (243 U. S. 592, 61 L. Ed. 917, 37 Sup. Ct. 462), 440. St. Louis, I. M. & S. R. Co. v. State (31 Ok. 509, 122 Pac. 217), 9. St. Louis, I. M. & S. R. Co. v. Taylor (210 U. S. 281, 52 L. Ed. 1061, 28 Sup. Ct. 616), 54. St. Louis, I. M. & S. R. Co. v. United States (217 Fed. 80), 121. St. Louis, I. M. & S. R. Co. v. Wynne (224 U. S. 354, 56 L. Ed. 799, 32 Sup. Ct. 493), 35. St. Louis, Mo.-Illinois Passengers Fares (41 I. C. C. 584), 185, 337, 442. St. Louis, Mo. Terminal Regulations (40 I. C. C. 425), 345. St. Louis, S. & P. R. Co. V. P. & P. N. R. Co. (26 I. C. C. 226), 150, 151, 191, 338, 347, 381, 400. Table of Cases Cited. 119 [References are to Sections.] St. Louis, S. W. R. Co. v. Alexander (227 U. S. 218, 57 L. Ed. 486, 33 Sup. Ct. 245), 295. St. Louis, S. W. R. Co. v. Arkansas (217 U. S. 136, 54 L. Ed. 698, 30 Sup. Ct. 476), 25. St. Louis, S. W. R. Co. v. Carden (34 S. W. (Texas) 145), 204. St. Louis, S. W. R. Co. v. Hadley (155 Fed. 220), 50. St. Louis, S. W. R. Co. v. Hill & Morris (97 Tex. 506, 80 S. W. 368), 25. St. Louis, S. W. R. Co. v. Lewellen Bros. (192 Fed. 540), 180, 205, 212. St. Louis, S. W. R. Co. v. Samuels & Co. (211 Fed. 588), 383, 407. St. Louis, S. W. R. Co. v. State (97 Ark. 473, 134 S. W. 970), 9. St. Louis, S. W. Ry. Co. v. United States (245 U. S. 136, 62 L. Ed. 199, 38 Sup. Ct. 49), 139a, 147, 150, 338, 396a, 396b. St. Louis Terminal Case (34 I. C. C. 453), 171. St. P. & S. Ste. M. R. Co. v. R. R. Com. of Wis. (136 Wis. 146, 116 N. W. 905), 49. Samuels Co. v. St. L. & W. R. Co. (20 I. C. C. 646), 383. Samuelson v. State (116 Tenn. 470, 95 S. W. 1012, 115 Am. St. Rep. 805), 37. San Bernardino Board of Trade v. Atchison, T. & S. F. R. Co. (4 I. C. C. 104, 3 I. C. R. 138), 348, 350, 358. San Diego Land & Town Co. v. Jasper (189 U. S. 439, 47 L. Ed. 892, 23 Sup. Ct. 571), 45, 47, 84. San Diego Land & Town Co. v. National City (74 Fed. 79), 84. San Diego Land & Town Co. v. National City (174 U. S. 739, 43 L. Ed. 1154, 19 Sup. Ct. 804), 45, 47, 49, 88. Sands v. Manistee R. 1. Co. (123 U. S. 288, 31 L. Ed. 149, 8 Sup. Ct. 113), 56. Santa Fe P. & P. R. Co. v. Grant Bros. Construction Co. (13 Ariz. 186, 108 Pac. 467), 358. Santa Fe P. & P. R. Co. v. Grant Bros. Construction Co. (228 U. S. 177, 57 L. Ed. 787, 33 Sup. Ct. 474), 358. Sault Ste. Marie v. International Transit Co. (234 U. S. 333, 58 L. Ed. 1337, 34 Sup. Ct. 826), 53. Savage v. Jones (225 U. S. 501, 56 L. Ed. 1182, 32 Sup. Ct. 715), 58. Savannah Bureau of Freight & Transportation v. Charleston & S. R. Co. (7 I. C. C. 458), 348. Savannah Bureau of Freight & Transportation v. Charleston & S. R. Co. (7 I. C. C. 601), 339. Savannah Bureau of Freight & Transportation v. Louisville & N. R. Co. (8 I. C. C. 377), 346. Savannah F. & W. R. Co. v. Florida Fruit Exchange (167 U. S. 512. 42 L. Ed. 257, 17 Sup. Ct. 998), 335. 120 Table of Cases Cited. [References are to Sections.] Savery v. New York C. & H. R. R. Co. (2 I. C. C. 3S8, 1 I. C. R. 695, 2 I. C. R. 210), 345. Sawyer v. Davis (136 Mass. 239, 49 Am. Rep. 27), 309. Sclalemmer v. Buffalo, R. & P. R. Co. (205 U. S. 1, 51 L. Ed. 681, 27 Sup. Ct. 407), 330. Schultz-Hansen Co. v. Southern Pac. Co. (18 I. C. C. 234), 111, 358. Schulz V. Parker (158 Iowa 42, 139 N. W. 173), 38. Schumacher Milling Co. v. Chicago, R. I. & P. Ry. Co. (6 I. C. C. 61, 4 I. C. R. 373), 85, 339, 392. Schutte V. Weir (111 N. Y. Sup. 240, 59 Misc. Rep. 438), 439. Schwager & Nettleton v. Great Nor. Ry. Co. (12 I. C. C. 521), 358. Schweig V. Chicago M. & St. P. Ry. Co. (205 Fed. 96), 331. Scofield V. Lake Shore & M. S. R. Co. (2 I. C. C. 90. 2 I. C. R. 67). 142a, 156, 345, 346. Scofield V. Lake Shore & M. S. R. Co. (43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846), 304. Scott V. Cape Charles R. Co. (38 I. C. C. 467), 207. Scott V. Donald (165 U. S. 58, 41 L. Ed. 632, 17 Sup. Ct. 265), 58. Scott-Meyer Com. Co. v. C. R. I. & P. Co. (28 I. C. C. 529), 118. Scott Paper Co. v. A. C. L. R. Co. (44 I. C. C. 503), 348. Scott Paper Co. v. P. R. Co. (26 I. C. C. 601), 145. Scranton v. Wheeler (179 U. S. 141, 45 L. Ed. 126, 21 Sup. Ct. 48), 58. Scrap Iron Rates (28 I. C. C. 525), 88. Seaboard A. L. R. Co. v. Blackwell (244 U. S. 310, 61 L. Ed. 1160, 37 Sup. Ct. 640, L. R. A. 1917F, 1184), 20, 24. Seaboard A. L. R. Co. v. Davis (139 Ga. 547, 77 S. E. 795), 32. Seaboard A. L. R. Co. v. Florida (203 U. S. 261, 51 L. Ed. 175. 27 Sup. Ct. 109), 130. Seaboard A. L. R. Co. v. North Carolina (245 U. S. 298, 62 L. Ed. 299, 38 Sup. Ct. 96), 58, 403. Seaboard A. L. R. Co. v. R. R. Com. of Ga. (206 Fed. 181), 13, 14, 453 Seaboard A. L. R. Co. v. R. R. Com. of Ga. (213 Fed. 27), 320, 453. Seaboard A. L. R. Co. v. R. R. Com. of Ga. (240 U. S. 324, 60 L. Ed. 669, 36 Sup. Ct. 260), 12. Seaboard A. L. R. Co. v. Seegers (73 S. C. 71, 52 S. E. 797), 35. Seaboard A. L. R. Co. v. R. R. Com. of Ga. (213 Fed. 27), 320, 453. Seaboard A. L. R. Co. v. Seegers (207 U. S. 73, 52 L. Ed. 108, 28 Sup. Ct. 28), 35. Seaboard, A. L. R. Co. v. United States (249 Fed. 389), 345. Sears, Roebuck & Co. v. Federal Trade Com. (258 Fed. 307), 329. Seattle Chamber of Commerce v. G. N. R. Co. (30 I. C. C. 683), 347. Table of Cases Cited. 121 [References are to Sections.] Seibels v. N. P. R. Co. (80 S. C. 133, 61 S. E. 435), 42. Selkirk v. Stevens (72 Minn. 336, 75 N. W. 386, 40 L. R. A. 760), 59. Separation of Operating Expenses (30 I. C. C. 676), 27, 49, 85, 432, 433 Serry v. S. P. Co. (18 I. C. C. 554), 118. Shapard v. Lesser (127 Ark. 590, 193 S. W. 262, 3 A. L. R. 247, 250), 480. Shawnee Compress Co. v. Anderson (209 U. S. 423, 52 L. Ed. 865, 28 Sup. Ct. 572), 486. Slieldon v. Wabash R. Co. (105 Fed. 785), 294. Shepard v. N. P. R. Co. (184 Fed. 765), 47, 49, 50. Sheridan Chamber of Commerce v. C. B. & Q. R. Co. (26 I. C. C. 638), 99a. Shiel & Co. V. 111. Cent. R. Co. (12 I. C. C. 210), 205, 206, 358, 383. Shinkle, etc., v. Louisville & N. R. Co. (62 Fed. 690), 406. Shippers' & Receivers' Bureau of Newark v. New York, 0. & W. R. Co. (15 I. C. C. 2G4), 339. Shoecraft & Sons Co. v. I. C. R. Co. (19 I. C. C. 492), 406, 408. Shoemaker v. Chesapeake & P. Tel. Co. (20 I. C. C. 614), 2, 28, 335, 346. Shore & Bros. v. B. & O. R. Co. (76 S. C. 472, 57 S. E. 526), 42. Silk Asso. of America v. P. R. Co. (44 I. C. C. 578, 50 I. C. C. 50), 34a. Silverman & Weir (114 N. Y. Supp. 6), 439. Silz v. Hesterberg (211 U. S. 31, 53 L. Ed. 75, 29 Sup. Ct. 10), 58. Simpson v. Shepard (230 U. S. 352, 57 L. Ed. 1511, 33 Sup. Ct. 729), 2, 3, 4, 9, 11, 16, 17, 18, 29, 33, 34, 42, 43, 45, 47, 52, 54, 55, 56, 58, 59, 61, 64, 69, 84, 125, 145. Sinclair v. C. M. & St. P. R. Co. (21 I. C. C. 490), 91, 253. Sinking Fund cases (U. P. R. Co. v. U. S.) (99 U. S. 9 Otto. 700, 25 L. Ed. 496), 63. Sinnot v. Davenport (22 How. 63 U. S. 227, 16 L. Ed. 243), 56. Sioux City Terminal Tel. Co. v. C. M. & St. P. R. Co. (27 I. C. C. 457), 109. Skaggs V. Kansas City Ter. Ry. Co. (233 Fed. 827), 347. Skinner Eddy Corp. v. United States (250 U. S. — , 63 L. Ed. — , 40 Sup. Ct. — ), 102, 351. Slater v. Northern Pac. R. Co. (2 I. C. C. 359, 2 I. C. R. 243), 342. 384, 442. Siigh V. Kirkwood (237 U. S. 52, 59 L. Ed. 835, 35 Sup. Ct. 501), 58. Sligo Iron Stove Co. v. A. T. & S. F. Ry. Co. (17 I. C. C. 139), 90. Sligo Iron Stove Co. v. U. P. R. Co. (19 I. C. C. 527), 90. Smeltzer v. St. Louis & S. F. R. Co. (158 Fed. 649), 439. Smith V. Alabama (124 U. S. 465, 31 L. Ed. 508, 8 Sup. Ct. 564, 1 I. C. R. 804), 3, 22. 122 Table of Cases Cited. I References are to Sections.] Smith V. Int. Com. Com. (245 U. S. 3S,. 62 L. Ed. 135, 38 Sup. Ct. 30), 78, 220, 235, 432. Smith V. Northern Pac. R. Co. (1 I. C. C. 208, 1 I. C. R. 611), 345. Smith V. Texas (233 U. S. 630, 146 S. W. 900, 58 L. Ed. 1129, 34 Sup. Ct. 681, 63 Tex. Cr. App. 183), 22. Smyth V. Ames (169 U. S. 466, 42 L. Ed. 819, 18 Sup. Ct. 418), 45, 47, 49, 82, 88, 123, 231. Snyder v. King (Mich.) (165 N. W. 840, 1 A. L. R. 893), 440, 481. Snyder-Malone Donahue Co. v. Chicago, B. & Q. R. Co. (18 I. C. C. 498), 110. Society of American Florists v. United States Express Co. (12 I. C. C. 120), 88, 339. Solvay Process Co. v. D. L. & W. R. Co. (14 I. C. C. 246), 171. Sondhelmer v. I. C. R. Co. (20 I. C. C. 606), 213, 408. South Covinngton & Cincinnati St. Ry. Co. v. Comm. of Ky. (250 U. S. — , 64 L. Ed. — , 40 Sup. Ct. — ), 29. South Covington Ry. v. Covington (234 U. S. 537, 59 L. Ed. 350, 35 Sup. Ct. 158), 3, 20, 66, 331. Southeastern Cotton Goods (43 I. C. C. 530), 114, 156. Southeastern Lumber (42 I. C. C. 548), 100, 102, 116. Southern Bitulithic Co. v. I. C. R. Co. (17 I. C. C. 300), 146. Southern Cal. Sugar Co. v. S. P. L. A. & R. Co. (19 I. C. C. 6), 195. Southern Cotton Oil Co. v. Central of Ga. Ry. Co. (228 Fed. 335), 364, 404. Southern Cotton Oil Co. v. S. K. Co. (19 I. C. C. 79), 90. Southern Ex. Co. v. Long (202 Fed. 462, 120 C. C. A. 568), 443. Southern Ex. Co. v. St. Louis, I. M. & S. R. Co. (10 Fed. 210, 3 McCrary 147), 303. Southern Express Co. v. Memphis & L. Ry. Co. (8 Fed. 799, 2 Mc- Crary 570), 303. Southern Flour & Grain Co. v. N. P. R. Co. (127 Ga. 626, 56 S. E. 742, 9 L. R. A. (N. S.) 853, 119 Am. St. Rep. 356), 42. Southern Furniture Mfrs. Asso. v. So. Ry. Co. (25 I. C. C. 379), 145, 244. Southern Gro. Co. v. Ga. N. R. Co. (12 I. C. C. 299), 346. Southern Ind. Ex. Co. v. United States Ex. Co. (88 Fed. 659, 1 Fed. Anti-Trust Dec. 862), 347, 492. Southern Ind. Ex. Co. v. United States Ex. Co. (92 Fed. 1022, 35 C. C. A. 172, 1 Fed. Anti-Trust Dec. 992), 492. Southern P. Co. v. Arizona (249 U. S. — , 63 L. Ed. — , 39 Sup. Ct. — ), 41. Table of Cases Cited. 123 [References are to Sections.] Southern Pac. Co. v. Arnett (126 Fed. 75, 61 C. C. A. 131), 483. Southern Pac. Co. v. Bartime (170 Fed. 725), 49. Southern Pac. Co. v. California Adjustment Co. (237 Fed. 954, 150 C. C. A. 604, 248 U. S. 595, 63 L. Ed. 226, 3-9 Sup. Ct. 182), 52, 209. Southern Pac. Co. v. Campbell (230 U. S. 537, 57 L. Ed. 1610, 33 Sup. Ct. 1027), 84. Southern Pac. Co. v. Colorado Fuel & Iron Co. (101 Fed. 779, 42 C. C. A. 12), 339, 346, 350, 358. Southern Pac. Co. v. Crenshaw (5 Ga. App. 675, 63 S. E. 865), 34, 295, 439. Southern Pac. Co. v. Darnell-Taenzer Lumber Co. (245 U. S. 531, 62 L. Ed. 451, 38 Sup. Ct. 186, 221 Fed. 890, 137 C. C. A. 460, 229 Fed. 1022, 3 C. C. A. 663), 207, 407. Southern Pac. Co. v. Goldfield Con. Milling & Transp. Co. (220 Fed. 14), 208, 383. Southern Pac. Co. v. Int. Com. Com. (177 Fed. 963), 222, 395. Southern Pac. Co. v. Int. Com. Com. (200 U. S. 536, 50 L. Ed. 585, 26 Sup. Ct. 330), 177. 352, 358, 406. Southern Pac. Co. v. Int. Com. Com. (215 U. S. 226, 54 L. Ed. 169, 30 Sup. Ct. 89), 395. Southern Pac. Co. v. Int. Com. Com. (219 U. S. 433, 55 L. Ed. 283. 31 Sup. Ct. 288), 95, 101, 222, 312, 314, 395, 396. Southern P. Co. v. Stevens (258 Fed. 165, — C. C. A. — ), 24. Southern Pac. Co. Ownership Atlantic S. S. Lines (4a I. C. C. 168), 354. Southern Pac. Co. Ownership of Oil Steamers (37 I. C. C. 529), 354. Southern Pac. Co. Ownership of Oil Steamers (34 I. C. C. 77), 203, 354. Southern Pac. Co. Ownership S. S. Pasadena (33 I. C. C. 476), 354. Southern P. Co. v. Stewart (233 Fed. 956, 147 C. C. A. 630, 245 U. S. 359, 62 L. Ed. 345, 38 Sup. Ct. 130, 248 U. S. 446, 63 L. Ed. — . 39 Sup. Ct. — ), 34a, 44d, 481. Southern Pac. Co. Steamboat Sacramento River (34 I. C. C. 174), 354. Southern Pac. Co. v. R. R. Com. of Ore. (119 Pac. 727), 49. Southern Pac. Co. v. R. R. Com. of Ore. (208 Fed. 926), 43. Southern Pac. Co. v. United States (171 Fed. 360, 96 C. C. A. 252), 481. Southern Pac. Co. v. United States (237 U. S. 202, 59 L. Ed. 916, 35 Sup. Ct. 573), 476. Southern Pac. Ter. Co. v. Int. Com. Com. (166 Fed. 134), 41, 222, 335, 336, 346, 395, 465, 468. Southern Pacific Ter. Co. v. Int. Com. Com. (219 U. S. 498, 55 L. Ed. 310. 31 Sup. Ct. 279), 10, 41, 66, 68, 138, 139. 222, 313, 335, 3.36, 346, 395. 124 Table of Cases Cited. [References are to Sections.] Southern Photo Material Co. v. Eastman Kodak Co. (234 Fed. 955), 492, 508. Southern Pine Lumber Co. v. Southern Ry. Co. (14 L C. C. 195), 215, 222, 383, 392, 395. Southern Ry. Co. v. Atlanta Stove Works (128 Ga. 207, 57 S. E. 429), 38, 43, 49, 60. Southern Ry. Co. v. Brown (131 Ga. 245, 62 S. E. 177), 42. Southern Ry. Co. v. Burlington Lumber Co. (225 U. S. 99, 56 L. Ed. 1001, 32 S. Ct. 659), 41. Southern Ry. Co. v. Frank (5 Ga. App. 574, 63 S. E. 656), 295. Southern Ry. Co. v. Greensboro Ice & Coal Co. (134 Fed. 82), 14. Southern Ry. Co. v. Indiana (179 Ind. 23, 100 N. E. 337), 4, 415. Southern Ry. Co. v. King (217 U. S. 524, 54 L. Ed. 868, 30 Sup. Ct. 594), 23. Southern Ry. Co. v. Love (139 Ga. 362, 77 S. E. 44), 35. Southern Ry. Co. v. Melton (133 Ga. 277, 65 S. E. 665), 24. Southern R. Co. v. Prescott (240 U. S. 632, 60 L. Ed. 836, 36 Sup. Ct. 469), 440. Southern Ry. Co. v. Puckett (244 U. S. 571, 61 L. Ed. 1321, 37 Sup. Ct. 703), 33. Southern Ry. Co. v. Railroad Com. of Indiana (236 U. S. 439, 59 L. Ed. 661, 35 Sup. Ct. 304), 4, 15, 31. Southern Ry. Co. v. Ragsdale (119 Ga. 773, 47 S. E. 179), 32. Southern Ry. Co. v. Reid (222 U. S. 424, 56 L. Ed. 257, 32 Sup. Ct. 140), 5, 6, 13, 25, 58. Southern Ry. Co. v. St. Louis Hay & Grain Co. (149 Fed. 609, 153 Fed. 728, 82 C. C. A. 614), 14, 80, 383, 394. Southern Ry. Co. v. St. Louis Hay & Grain Co. (214 U. S. 297, 53 L. Ed. 1004, 29 Sup. Ct. 678), 10, 14, 192, 312, 346, 383, 394. Southern Ry. Co. v. Tift (148 Fed. 1021), 50, 90, 93, 207, 304, 339, 352, 406, 443, 445, 486. Southern Ry. Co. v. Tift (206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709), 50, 90, 93, 102, 207, 222, 241, 304, 305b, 339, 352, 383, 406, 443, 445. Southern Ry. Co. v. United States (205 Fed. 465), 222, 346, 392. Southern Ry. Co. v. United States (222 U. S. 20, 56 L. Ed. 72, 32 Sup. Ct. 2), 3. Southwestern Mo. Millers' Club v. St. L. & S. W. R. Co. (26 I. C. C. 245), 337, 341. Southwestern Portland Cement Co. v. T. & Pac. Ry. Co. (41 I. C. C. 39), 205. 211. Table of Cases Cited. 125 [References are to Sections.] Southwestern Produce Distributors v. W. R. Co. (20 I. C. C. 458), 149, 345. Southwestern Tel. & Tel. Co. v. Houston (256 Fed. 690 ); 335. Spartanburg Board of Trade v. R. & D. R. Co. (2 I. C. C. 304, 2 I. C. R. 198), 153, 199, 348. Speigle Co. (Geo. M.) v. Chesapeake & O. R. Co. (11 I. C. C. 367), 348. Sperry & Hutchinson Co. v. Fenster (219 Fed. 755), 497. Sperry-Hutchinson C. Co. v. Tacoma (190 Fed. 682), 453. Spillers & Co. v. Louisville & N. R. Co. (8 I. C. C. 364), 361. L'pokane v. N. P. R. Co. (15 I. C. C. 376), 339, 346, 348. Spokane v. N. P. R. Co. (19 I. C. C. 162), 50, 156. Spokane v. N. P. Ry. Co. (21 1. C. C. 400), 63, 154, 202, 345, 348. Spratlin v. S. L. & S. W. R. Co. (76 Ark. 82, 88 S. W. 836), 204. Sprigg V. Baltimore & O. R. Co. (8 I. C. C. 443), 444, 486. Spring Hill Coal Co. v. E. R. Co. (18 L C. C. 508), 195. Spring Valley Water Works v. San Francisco (82 Cal. 286, 22 Pac. 910), 49. Spring Valley Water Works v. Schlotter (110 U. S. 347, 28 L. Ed. 173, 4 Sup. Ct. 48), 45. Squire & Co. v. A. S. Ry. Co. (44 L C. C. 509), 214. Squire v. Mich. Cent. R. Co. (4 I. C. C. 611, 3 I. C. R. 515), 91, 446. Standard Ency. of Procedure (Vol. 5, p. 153.). Standard Fashion Co. v. Magrane Houston Co. (251 Fed. 559, 163 C. C. A. 558, 254 Fed. 493, 259 Fed. 793, — C. C. A. — ), 486, 497. Standard Lime & Stone Co. v. Cumberland V. R. Co. (15 I. C. C. 620), 346, 445. Standard Mirror Co. v. P. R. Co. (27 L C. C. 200), 251. Standard Oil Co. v. C. T. T. R. Co. (21 I. C. C. 460), 408. Standard Oil Co. v. P. Co. (29 I. C. C 524), 348. Standard Oil Co. v. United States (164 Fed. 376, 90 C. C. A. 364), 335, 361, 371, 449. Standard Oil Co. v. United States (179 Fed. 614), 67, 371. Standard Oil Co. v. United States (221 U. S. 1, 55 L. Ed. 619, 31 Sup. Ct. 502, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734), 486. Standard Sanitary Mfg. Co. v. United States (226 U. S. 20, 57 L. Ed. 107, 33 Sup. Ct. 9), 486. Stanley v. Wabash, St. L. & P. R. Co. (100 Mo. 435, 13 S. W. 709, 8 L. R. A. 549), 25. Star Grain & Lumber Co. v. Atchison, T. & S. F. Ry. Co. (14 L C. C. 364), 196, 249, 338, 397. 126 Table of Cases Cited. [References are to Sections.] Starks Co. v. Grand Rapids & I. Ry. Co. (165 Mich. 642, 131 N. W. 143), 297. State V. Atlantic C. L. R. Co. (61 Fla. 799, 54 So. 900, 56 Fla. 617, 47 So. 969), 5. State (of Iowa) v. Atlantic C. L. R. Co. (24 I. C. C. 134), 91. State V. Bernheim (19 Mont. 512, 49 Pac. 441), 37. State V. Boneval (128 La. 702, 55 So. 569, Ann. Cas. 1912C. 837), 442. State V. Brodnax (228 Mo. 225, 128 S. W. 177, 137 Am. St. Rep. 613), 57. State V. Cadwallader (172 Ind. 619, 87 N. E. 644, 89 N. E. 319), 327. State of Iowa v. Chicago, M. & St. P. R. Co. (4 I. C. R. 425, 33 Fed. 391), 335. State of Iowa v. C. M. & St. P. R. Co. (145 U. S. 632, 36 L. Ed. 857, 12 Sup. Ct. 978), 335. State V. Chicago, M. & St. P. R. Co. (11 S. D. 282, 77 N. W. 104), 19. State V. Chicago, M. & St. P. R. Co. (38 Minn. 281, 37 N. W. 782), 49. State V. Chicago, M. & St. P. R. Co. (152 Iowa 317, 130 N. W. 802), 68. State V. C. N. O. & T. P. R. Co. (47 Ohio St. 130, 23 N. E. 928), 175. State V. Cleveland, C. C. & St. L. R. Co. (157 Ind. 288, 61 N. E. 669), 30. State ex rel. Attorney-General v. Columbus Gaslight & Coke Co. (34 Ohio St. 572, 32 Am. Rep. 390), 45. State V. Corbett (57 Minn. 345, 59 N. W. 317, 24 L. R. A. 498), 37. State V. De Barry (130 La. 1090, 50 So. 892), 58. State V. Eighteen Casks of Beer (24 Ok. 786, 104 Pac. 1093), 58. State V. Florida E. C. R. Co. (58 Fla. 524, 50 So. 425), 13. State V. G. N. R. Co. (17 N. D. 370, 116 N. W. 89), 442. State V. Grier (88 Atl. 579), 58. State V. Harbourne (70 Conn. 484, 40 Atl. 179, 66 Am. St. Rep. 126, 40 L. R. A. 607), 58. State V. Harper (48 Mont. 456, 138 Pac. 495, 51 L. R. A. (N. S.) 157), 2. State V. I. & G. N. R. Co. (71 S. W. 994), 335. State V. Indiana & I. S. Ry. Co. (133 Ind. 69, 32 N. E. 817, 18 L. R. A. 5.02), 30. State V. Intoxicating Liquors (104 Me. 502, 71 Atl. 758), 58. State V. Lake E. & W. R. Co. (83 Fed. 284), 15. State V. Leech (119 La. 522, 44 So. 285), 56. State V. Louisville & N. R. Co. (177 Ind. 553, 96 N. B. 340), 15. State V. Louisville & N. R. Co. (57 Fla. 526, 49 So. 39), 27. State v.Lowry (166 Ind. 372, 77 N. E. 728, 4 L. R. A. (N. S.) 532). 58. Table of Cases Cited. 127 [References are to Sections.] State V. Mallory (73 Ark. 236, 83 S. W. 955, 67 L. R. A. 773), 58. State v.Martyn (82 Neb. 225, 117 N. W. 719), 39. State V. Miller (66 W. Va. 436, 66 S. E. 522), 58. State V. Minneapolis & St. L. R. Co. (80 Minn. 191, 83 N. W. 60, 89 Am. St. Rep. 514), 14. State V. Mo. Pac. R. Co. (76 Kan. 467, 92 Pac. 606), 49. State V. Mo. Pac. R. Co. (242 Mo. 339, 147 S. W. 118), 22. State V. Ogden Rapid Transit Co. (38 Utah 242, 112 Pac. 120), 9. State V. Otis (60 Kan. 248, 56 Pac. 14), 38. State V. Railroad Com. of Washington (52 Wash. 17, 100 Pac. 179), 14. State V. Republican V. R. Co. (26 N. W. 205, 24 N. W. 329), 9. State V. St. Louis & S. F. R. Co. (105 Mo. App. 207, 79 S. W. 714), 21. State V. S. A. L. R. Co. (48 Fla. 114, 37 So. 652), 49. State V. So. Kan. R. Co. (49 S. W. 252), 335. State V. Southern Ry. Co. (122 N. C. 1052, 30 S. E. 133, 41 L. R. A. 246), 38. State V. Thompson (47 Ore. 639, 84 Pac. 476, 4 L. R. A. (N. S.) 480), 37. State V. U. P. R. Co. (89 Neb. 29, 126 N. W. 859), 39. State V. Western & A. R. Co. (138 Ga. 835, 76 S. E. 577), 43. State V. Wilmar & S. F. R. Co. (88 Minn. 448, 93 N. W. 112), 47. State V. Wrightsville & T. R. Co. (104 Ga. 437, 30 S. E. 891), 14, 17. State V. Yazoo & V. R. Co. (87 Miss. 679, 40 So. 263), 9. State V. Young (29 Minn. 474, 9 N. W. 737), 47. Steamer Lines from Norfolk to Baltimore (41 I. C. C. 285), 354. Steamer Lines on Chesapeake Bay (35 I. C. C. 692), 203, 354. Steamer Lines on Long Island Sound (50 I. C. C. 634), 354. Stedman v. Chicago & N. W. Ry. Co. (13 I. C. C. 167), 338, 383. Steenerson v. G. N. Ry. Co. (69 Minn. 353, 72 N. W. 713), 49. Steele v. United Fruit Co. (190 Fed. 631), 486. Stephens v. Cent, of Ga. Ry. Co. (138 Fed. 625, 75 S. B. 1041, 42 L. R. A. (N. S.) 541, 1913E. Ann. Cas. 609), 17, 36, 43, 61, 80. Sterling & Sons Co. v. M. C. R. Co. (21 I. C. C. 451), 404. Stevens Gro. Co^ v. St. L. I. M. & S. Ry. Co. (42 I. C. C. 396), 118, 254. Stewart v. Michigan (232 U. S. 665, 58 L. Ed. 786, 34 Sup. Ct. 476), 58. Stickney v. Int. Com. Com. (164 Fed. 638), 358, 395, 462. Stiritz V. N. 0. M. & C. R. Co. (22 I. C. C. 578), 98. Stoddard Lumber Co. v. Or.-Wash. R. & Nav. Co. (84 Or. 399, 105 Pac. 363, 4 A. L. R. 1275), 295, 440. Stone V. A. C. L. R. Co. (144 N. C. 220, 56 S. E. 932). 25. 128 Table of Cases Cited. [References are to Sections.] Stone V. Detroit, etc., R. Co. (3 I. C. C. 613, 3 I. C. R. 60), 348. Stone V. Farmers' Loan & Trust Co. (116 U. S. 307, 29 L. Ed. 631, 6 Sup. Ct. 334, 338, 1191), 5, 45, 63. ?tate V. 111. Cent. R. Co. (116 U. S. 347, 29 L. Ed. 650. 6 Sup. Ct. 348, 1191), 45. Stone V. New Orleans & N. E. R. Co. (116 U. S. 352, 29 L. Ed. 651, 6 Sup. Ct. 349). 45. Stone V. Wisconsin (94 U. S. 181, 24 L. Ed. 102), 45. Stonega Coal & Coke Co. v. L. & N. R. Co. (39 I. C. C. 523), 48, 99a, 101, 416. Storr V. Pensacola R. Co. (29 Fla. 617, 11 So. 226), 49. Stowe-Fuller Co. v. Penn. Co. (12 I. C. C. 215), 160. Strait V. National Harrow Co. (51 Fed. 819, 1 Fed. Anti-Trust Dec. 52), 486. Straus V. Am. Pub. Asso. (177 N. Y. 473, 64 L. R. A. 701, 101 Am. St. Rep. 819, 69 N. E. 1107), 486. Straus V. Am. Pub. Asso. (231 U. S 222, 58 L. Ed. 192, 34 Sup. Ct. 84), 486. Straus V. Am. Pub. Asso. 1193 N. Y. 496, 86 N. E. 525), 486. Straus V. Am. Pub. Asso. (144 N. Y. 548, 93 N. E. 1133), 486. Straus V. Victor Talking Mach. Co. (243 U. S. 490, 61 L. Ed. 866, 37 Sup. Ct. 412), 497. Streever Lumber Co. v. C. M. & St. P. Ry. Co. (34 I. C. C. 1), 481. Strough V. New York C. & H. R. R. Co. (87 N. Y. Sup. 30, 92 App. Div. 584), 383. Strough V. New York C. & H. R. R. Co. (181 N. Y. 533), 73 N. E. 1133), 383. Strout V. United Shoe Mach. Co. (195 Fed. 313), 492. Strout V. United Shoe Mach. Co. (202 Fed. 602), 492. Stuarts Draft Milling Co. v. S. Ry. Co. (31 I. C. C. 623), 392. Suffern Grain Co. v. 111. C. R. Co. (22 I. C. C. 178), 140. Suffern, Hunt & Co. v. Ind. D. & W. Ry. Co. (7 I. C C. 255), 180. 212, 358. Sulphuric Acid From New Orleans, La. (42 I. C. C. 200. 347), 81a, 161. Sun Co. V. I. S. R. Co. (22 I. C. C. 194), 107. Sunday Creek Co. v. United States (210 Fed. 747), 345, 358, 371. Sunderland Bros. v. Chicago, R. I. & P. R. Co. (158 Fed. 877), 443. Sunderland Bros. v. St. L. & S. F. R. Co. (23 I. C. C. 259), 81. Sunderland Bros. Co. v. Missouri, K. & T. Ry. Co. (18 I. C. C. 425), 115. Sunnyside Coal Min. Co. v. D. & R. G. R. Co. (19 I. C. C. 20), 213. Superior Commercial Club & G. N. R. Co. (25 I. C. C. 342), 398. Table of Cases Cited. 129 [References are to Sections.] Suspension of Advance on Soft Coal (23 I. C. C. 518), 399. Suspension of Rates on Packing House Products (21 I. C. C. 68), 398. Swaney v. B. & 0. R. Co. (49 I. C. C. 345), 346. Swayne & Hoyt v. Barsch (226 Fed. 581, 141 C. C. A. 337), 33. Swift & Co. V. M. & O. R. Co. (39 I. C. C. 701), 169. Swift V. Philadelphia & R. R. Co. (58 Fed. 858), 339, 383. Swift V. Philadelphia & R. R. Co. (64 Fed. 59), 383. Swift V. United States (196 U. S. 375, 49 L. Ed. 518, 25 Sup. Ct. 276, 2 Fed. Anti-Trust Dec. 641), 2, 456, 469, 486. Switching Ice in Chicago (24 I. C. C. 660), 399. Sylvester v. Penn. R. Co. (14 I. C. C. 573), 339, 343, 383. Tampa Board of Trade v. A. & V. R. Co. (33 I. C. C. 457). 375. Tampa Board of Trade v. L. & N. R. Co. (30 I. C. C. 377), 375. Tampa Fuel Co. v. A. C. L. R. Co. (43 I. C. C. 231), 336a. Tang Tun v. Edsell (223 U. S. 673, 56 L. Ed. 606, 32 Sup. Ct. 359), 316, 396. Tap Line Cases (23 I. C. C. 277, 549, 31 I. C. C. 490, 34 I. C. C. 116, 35 I. C. C. 458, 209 Fed. 244, 234 U. S. 1, 58 L. Ed. 1185, 34 Sup. Ct. 741), 170, 193, 197, 211, 346, 404. Taylor v. N. & W. R. Co. (25 I. C. C. 613), 398. Taylor, The Moses (71 U. S. 4 Wall. 429, 18 L. Ed. 397). 292. Taylor Dry Goods Co. v. M. P. R. Co. (28 I. C. C. 205), 112, 156. Tecumser Celery Co. v. Cincinnati, J. & M. Ry. Co. (5 I. C. C. 663, 4 I. C. R. 318), 392. Texarkana Freight Bureau v. St. L. I. M. & S. Ry. Co. (43 I. C. C 224), 44, 146a. Texas & N. O. Ry. Co. v. Gulf & L Ry. Co. (54 S. W. 1031), 13. Texas & N. O. Ry. Co. v. Sabine Tram Co. (227 U. S. Ill, 57 L. Ed. 442, 33 Sup. Ct. 229), 68, 335, 336. Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co. (204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350, 9 Ann. Cas. 1075), 58, 61, 64. 69, 70, 145, 204, 241, 297, 317, 358, 405, 407, 443. Texas & P. R. Co. v. Andrews (54 Tex. Civ. App. 418, 55 Tex. Civ. App. 302, 118 S. W. 1101), 24. Texas & Pac. Ry. Co. v. Cisco Oil Mill (204 U. S. 449. 51 L. Ed. 562, 27 Sup. Ct. 358), 241, 358. 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), 64, 85, 95. 125. 128, 153, 179, 312, 339, 345, 358, 388, 389, 394, 395, 406. 13u Table of Cases Cited. [References are to Sections.] Texas & Pac. Ry. Co. v. Leatherwood (250 U. S. — , 63 L. Ed. — , 39 Sup. Ct. — ), 440. Texas & Pac. Ry. Co." v. Mugg (202 U. S. 242, 50 L. Ed. 1011, 26 Sup. Ct. 628), 180, 204, 212, 358, 361. Texas & Pac. Ry. Co. v. R. R. Com. of La. (183 Fed. 1005), 68. Texas & Pac. Ry. Co. v. R. R. Com. of La. (192 Fed. 280, 112 C. C. A. 528), 87. Texas & P. R. Co. v. Taylor (42 Tex. Civ. App. 418, 118 S. W. 1097), 24. Texas & Pac. Ry. Co. v. United States (205 Fed. 380), 3, 44, 62, 68, 184, 222, 336, 346. Texas Cement Plaster Co. v. St. Louis & S. F. R. Co. (12 L C. C. 68), 346, 383. Texas Cement Plaster Co. v. St. Louis & S. F. R Co. (26 1. C. C. 508), 897. Texas Cement Prod. Co. v. St. L. & S. F. Co. (26 I. C. C. 508), 400. Texas C. R. Co. v. Hannay-Frerichs & Co. (130 S. W. 250), 25. Texas Common Point Case (26 I. C. C. 528), 105. Texico Transfer Co. v. L. & N. R. Co. (20 I. C. C. 17), 195. Texo-cide Chemical Co. v. T. & P. Ry. Co. (40 I. C. C. 594), 89a. Thomas v. Cincinnati, N. O. & T. P. Ry. Co. (62 Fed. 803, 1 Fed. Anti-Trust Dec. 266), 486. Thompson v. M. K. & T. Ry. Co. (105 Tex. 372, 126 S. W. 257, 128 S. W. 109), 14. Thompson v. Penn. R. Co. (10 I. C. C. 640), 175. Thompson Lumber Co. v. 111. Cent. R. Co. (13 I. C. C. 657), 126, 339, 406. Thompson Lumber Co. v. 111. Cent. R. Co. (14 I. C. C. 566), 416. Thompson Lumber Co. v. Int. Com. Com. (193 Fed. 682), 406, 407. Thomsen v. Cayser (243 U. S. 66, 61 L. Ed. 597, 37 Sup. Ct. 353), 486, 492. Thomson v. Union Castle Mail S. S. Co. (149 Fed. 933), 486. Thomson v. Union Castle Mail S. S. Co. (166 Fed. 251, 32 C. C. A. 315), 486. Through Rates to Points in La. and Texas (38 I. C. C. 153), 348. Thurber v. New York C. & H. R. R. Co. (3 I. C. C. 473, 2 I. C. R. 742), 88, 111, 156, 339, 346. Tift V. Southern Ry. Co. (10 I. C. C. 548), 50. 88, 90, 92, 96, 100, 102, 207, 327, 339, 352, 395, 486. Tift V .Southern Ry. Co. (123 Fed. 789), 50, 61, 64, 304, 339, 442, 445. Tift V. Southern Ry. Co. (138 Fed. 753, 2 Fed. Anti-Trust Dec 733), 50, 64, 92, 102, 207, 304, 327, 339, 352, 406, 445, 486. Table of Cases Cited. 131 [References are to Sections.] Tift V. Southern Ry. Co. (159 Fed. 555), 50, 339, 383. Tileston Milling Co. v. Northern Pac. R. Co. (8 I. C. C. 346) 129, 339, 348. Tilley v. Railroad Co. (5 Fed. 641, 4 Woods 427), 50. Toledo & 0. C. Ry. Co. v. Chesapeake & O. Coal & Coke Co. (238 Fed. 629), 364. Toledo, etc., R. Co. v. Penn. Co. (54 Fed. 730, 19 L. R. A. 387, 5 I. C. R. 545, 22 U. S. App. 561), 304, 307, 347, 381, 383, 384. Tomlin-Harris Mach. Co. v. Louisville & N. R. Co. (12 I. C. C. 133), 346. Topeka Banana Dealer^' Asso. v. St. L. & S. F. R. .Co. (13 I. C. C. 620), 348. Topeka Traffic Asso. v. A. & V. R. Co. (27 I. C. C. 428), 145. Tozer v. United States (52 Fed. 917), 345, 346, 371, 384. Traer v. Chicago & A. R. Co. (13 I. C. C. 451), 175, 222, 309, 336, 346, 395. Traffic Bureau Merchants' Exchange of St. Louis v. Chicago, B. & Q. R. Co. (14 I. C. C. 317), 142a, 168, 312, 337. Traffic Bureau Merchants' Exchange of St. Louis v. Chicago, B. & Q. R. Co. (14 I. C. C. 551), 312,- 411. Traffic Bureau Merchants' Exchange of St. Louis v. C. B. & Q. R. Co. (22 I. C. C. 496), 140, 337. Traffic Bureau Merchants' Exchange of St. Louis v. Missouri Pac. R. Co. (13 I. C. C. 11), 346. Traffic Bureau of Nashville v. L. & N. R. Co. (43 I. C. C. 366), 266. Traffic Bureau of Sioux City v. American Ex. Co. (39 I. C. C. 703), 44. Traffic Bureau of Toledo v. C. H. & D. Ry. Co. (43 I. C. C. 446), 147, 346. Trammell Railroad Comrs. of Ga. v. Clyde S. S. Co. (5 I. C. C. 324, 4 I. C. R. 120), 135, 153, 199, 335, 345, 346, 348, 392. Transcontinental Commodity Rates (32 I. C. C. 449),. 375, 398. Transcontinental Rates (46 I. C. C. 236), 348. Transit Case (24 I. C. C. 340), 169, 433. Transportation Bureau of Wichita v. S. L. L M. & S. R. Co. (23 I. C. C. 679), 107. Transportation of Fresh Meats (23 I. C. C. 652), 346. Transportation of Lime in Car Loads (24 I. C. C. 170), 348. Transportation of Wool, Hides & Pelts (23 I. C. C. 151), 169. Trap or Ferry Car Service (34 I. C. C. 516), 141, 193. Traugott Schmidt & Sons v. M. C. R. R. Co. (23 I. C. C. 684), 265. Travis v. Wells Fargo Ex. Co. (79 N. J. L. 83, 74 Atl. 444), 34. Trenton & M. C. T. Corp. v. New Jersey Pub. Util. Com (229 Fed. 140), 60. 132 Table of Cases Cited. [References are to Sections.] Trenton & M. C. T. Corp. v. Trenton (227 Fed. 502, 229 Fed. 140, 143 C. C. A. 316), 43. Trexler Lumber Co. v. So. Ry. Co. (42 L C. C. 719), 205. Trier v. C. St. ^. M. & S. Ry. Co. (30 L C. C. 352), 6, 44, 336. Tripp V. M. C. R. Co. (238 Fed. 449, 151 C. C. A. 385), 182, 342. Truckers Transfer Co. v. C. & W. C. R. Co. (27 I. C. C. 275), 121, 195, 224, 249, 313, 338, 375, 400. Tucker v. M. K. & T. R. Co. (82 Kan. 222, 108 Pac. 89), 35, 42. Tullis V. Lake E. & W. R. Co. (175 U. S. 348, 44 L. Ed. 192, 20 Sup. Ct. 136), 33.- Tulsa Traffic Asso. v. St. L. & S. F. R. Co. (49 L C. C. 644), 347. U. Ullman v. Adams Ex. Co. (14 I. C. C. 585), 265. Ulrick V. Lake Shore, etc., R. Co. (9 L C. C. 495), 348. Union Bridge Co. v. United States (204 U. S. 364, 51 L, Ed. 523, 27 Sup. Ct. 367), 53, 54. Union Lime Co. v. C. & N. W. Ry. Co. (233 U. S. 211, 58 L. Ed. 924, 34 Sup. Ct. 522), 12, 195, 344, 396b. Union Lumber Co. v. G. C. & S. F. Ry. Co. (41 L C. C. 411), 208. Union Made Garments Mfgrs. Asso. v. C. & N. W. R. Co. (16 L C. C. 405). See Association of Union Made Garments. Union Pacific Coal Co. v. United States (173 Fed. 737, 97 C. C. A. 578), 486. Union Pac. Co. v. Frank (226 Fed. 906, 141 C. C. A. 510), 513. Union Pacific R. Co. v. Goodridge (149 U. S. 680, 37 L. Ed. 896, 13 Sup. Ct. 970), 145. Union Pac. R. Co. v. Oregon & Washington L. M. Asso. (165 Fed. 13, 91 C. C. A. 51), 443. Union Pac. R. Co. v. United States (59 Fed. 813, 8 C. C. A. 282), 327. Union Pac. R. Co. v. United States (Sinking Fund Cases), (99 U. S. 9 Otto. 700, 25 L. Ed. 496), 63. Union Pac. R. Co. v. United States (117 U. S. 355, 29 L. Ed. 920, 6 Sup. Ct. 772), 345, 389. Union Pac. R. Co. v. Updike Grain Co. (222 U. S. 215, 56 L. Ed. 171, 32 Sup. Ct. 39), 16, 140, 168, 197, 337, 346, 404. Union Pac. Tea Co. v. P. R. Co. (14 I. C. C. 545), 88. Union Sewer Pipe Co. v. Connelly (99 Fed. 354, 2 Fed. Anti-Trust Dec. 1), 486. Union Stock Yards & Transit Co. v. United States (192 Fed. 330), 66. Union Tanning Co. v. S. R. Co. (26 I. C. C. 159), 88, 90. Table of Cases Cited. 133 [References are to Sections.] United States v. Adams Ex. Co. (229 U. S. 3S1, 57 L. Ed. 1237, 33 Sup. Ct. 878), 63, 66, 384. 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), 486, 489, 491. United States v. Agler (62 Fed. 824, 11 Anti-Trust Dec. 294). 489. United States v. Alaska (251 U. S. — , 64 L. Ed. — . 40 Sup. Ct. — ), 204a. United States v. American Can Co. (234 Fed. 1019), 486. United States v. American Naval Stores Co. (172 Fed. 455). 486. United States v. American Naval Stores Co. (186 Fed. 592), 486. United States v. American Tobacco Co. (164 Fed. 700), 486. United States v. American Tobacco (221 U. S. 106, 55 L. Ed. 663, 31 Sup. Ct. 632), 486. United States v. Armour (142 Fed. 808, 2 Fed. Anti-Trust Dec. 951), 486. United States v. Associated Bill Posters (235 Fed. 540), 486. United States v. Atchison, T. & S. F. Ry. Co. (142 Fed. 176, 2 Fed. Anti-Trust Dec. 831), 456, 489. United States v. Atchison, T. & S. F. Ry. Co. (16a Fed. Ill), 371. United States v. Atchison, T. & S. F. R. Co. (166 Fed. 160), 483. United States v. A. T. & S. P. R. Co. (185 Fed. 105, 107 C. C. A. 323), 481. United States v. Atchison, T. & S. F. R. Co. (234 U. S. 476, 58 L. Ed. 1408, 34 Sup. Ct. 986), 63, lo4, 20L, 308a, 345, 346, 348. United States v. Baltimore & O. R. Co. (153 Fed. 997), 384. United States v. Baltimore & O. R. Co. (154 Fed. 108). 175, 395, 445. United States v. B. & O. R. Co. (225 U. S. 306, 56 L. Ed. 1100, 32 Sup. Ct. 817), 303, 321. United States v. B. & O. R. Co. (226 U. S. 14, 57 L. Ed. 104, 3S Sup. Ct. 5), 191, 195, 222, 396. United States v. B. & O. R. Co. (231 U. S. 274, 58 L. Ed. 218. 34 Sup. Ct. 75), 9, 40, 140, 197, 312, 3-21, 335, 343, 371, 404. United States v. Basic Products Co. (260 Fed. 472), 329. United States ex rel. Pitcairn Coal Co. v. Baltimore & O. R. Co. (165 Fed. 113, 91 C. C. A. 147), 174, 296, 347, 445. United States v. Baltimore & O. S. W. R. Co. (159 Fed. 33, 86 C. C. A. 223), 483. United States v. Baltimore & 0. S. W. R. Co. (222 U. S. 8, 56 L. Ed. 68, 32 Sup. Ct. 6), 58, 326. United States v. B. & O. S. W. Co. (226 U. S. 14, 57 L. Ed. 104, S3 Sup. Ct. 5), 256, 396. 134 Table of Cases Cited. [References are to Sections.] United States v. Bethlehem Steel Co. (184 Fed. 546), 371. United States v. Boston & A. R. Co. (15 Fed. 209), 481. 483. United States v. Bunch (105 Fed. 736), 371. United States v. Camden Iron Works (150 Fed. 214), 371. United States v. Cassidy (67 Fed. 698, 1 Fed. Anti-Trust Dec. 449), 486. United States v. Chesapeake & Ohio Fuel Co. (105 Fed. 93, 2 Fed. Anti-Trust Dec. 34), 486. United States v. Chicago & Alton R. Co. (148 Fed. 646), 358. United States v. Chicago & N. W. Ry. Co. (127 Fed. 785, 62 C. C. A. 465), 345. United States v. Chicago, B. & Q. R. Co. (184 Fed. 984), 481. United States v. C. C. C. & St. L. Ry. Co. (234 Fed. 178), 371. United States v. Chicago, I. & L. R. Co. (163 Fed. 114), 342. 442, 456. United States v. Chicago, I. & L. R. Co. (163 Fed. 114), 38. United States v. Chicago J. R. Co. (211 Fed. 724), 481. United States v. Chicago, K. & S. R. Co. (81 Fed. 783), 335, 432. United States v. C. M. & St. P. Ry. Co. (234 Fed. 386. 245 Fed. 179, 250 Fed. 442), 481. United States v. Chicago, R. I. & P. R. Co. (211 Fed. 770), 481. United States v. Chicago, St. P., M. & O. R. Co. (151 Fed. 84), 358, 371, 447. United States v. Coal Dealers' Asso. (85 Fed. 252, 1 Fed. Anti-Trust Dec. 749), 486, 489. United States v. Colgate & Co. (253 Fed. 522, 250 U. S. 300, 63 L. Ed. 570, 39 Sup. Ct. 465), 329, 486, 492, 497. United States v. Colorado & N. W. R. Co. (157 Fed. 321, 342, 85 C. C. A. 27, 48), 67, 335, 432. United States v. Corn Products Refining Co. (234 Fed. 964), 486. United States v. Cowell (243 Fed. 730), 486. United States v. Debs (64 Fed. 724, 1 Fed. Anti-Trust Dec. 322), 486. United States v. DeCoursey (82 Fed. 302), 358, 384. United States v. Delaware & Hudson Co. (164 Fed. 215), 173. United States v. Delaware & Hudson Co. (213 U. S. 366, 53 L. Ed. 836, 29 Sup. Ct. 527), 63, 173, 303, 343. United States v. Delaware, L. & W. Co. (40 Fed. 101), 197, 345, 346. United States v. Delaware, L. & W. R. Co. (152 Fed. 269), 335, 371, 447. United States v. Delaware, L. & W. R. Co. (238 U. S. 516, 59 L. Ed. 1438, 35 Sup. Ct. 873, 213 Fed. 240), 63, 173, 343, 486. United States v. Discher (255 Fed. 719), 486. United States v. Du Pont De Nemours & Co. (188 Fed. 127), 486, 489. Table of Cases Cited. 135 [References are to Sections.] United States v. Egan (47 Fed. 112), 345. United States v. East Tenn., Va. & Ga. Ry. Co. (13 Fed. 642), 481. United States v. Eastern States R. L. D. Asso. (201 Fed. 581), 486. United States v. Eastman Kodak Co. (226 Fed. 62), 487. United States v. E. R. Co. (191 Fed. 941), 481. United States v. E. R. Co. (209 Fed. 283), 176, 358. United States v. E. R. Co. (213 Fed. 391), 442. United States v. Elliott (62 Fed. 801, 1 Fed. Anti-Trust Dec. 262), 486. United States v. Elliott (64 Fed. 27, 1 Fed. Anti-Trust Dec. 311), 486, 489, 490. United States v. El Paso & N. E. R. Co. (178 Fed. 846), 485. United States v. Ferger (250 U. S. — . 63 L. Ed. — . 39 Sup. Ct. — ). 25, 34a, 204a, 440a, 440oo. United States v. Fowkes (53 Fed. 13, 3 C. C. A. 394), 384. United States v. Geddes (131 Fed. 452, 65 C. C. A. 320), 335. United States v. Gettysburg Elec. Ry. Co. (160 U. S. 068, 40 L. Ed. 576, 16 Sup. Ct. 427), 7. United States v. Grand T. R. Co. (225 Fed. 283), 359, 371. United States v. Grand T. R. Co. (208 Fed. 733), 486. United States v. Great Lakes Towing Co. (217 Fed. 656), 56, 65, 486. United States v. Great Nor. R. Co. (151 Fed. 84), 448. United States v. Great Nor. R. Co. (157 Fed. 288), 63, 371, 448. United States v. Greenhut (50 Fed. 469, 1 Fed. Anti-Trust Dec. 30). 487. United States v. Hamburg-Am. ?. F. & Geselschaft (200 Fed. 806), 486. United States v. Hanley (71 Fed. 672), 345, 384, 386, 387. United States v. Harris (85 Fed. 533), 481. United States v. Harris (177 U. S. 305, 44 L. Ed. 780, 20 Sup. Ct. 609), 481. United States v. Hill (248 U. S. 420, 63 L. Ed. — , 39 Sup. Ct. — ), 58. United States v. H. V. R. Co. (194 Fed. 234), 176, 345, 358, 370, 371. United States v. Hollis (246 Fed. 611), 486. United States v. Hopkins (82 Fed. 529, 1 Fed. Anti-Trust Dec. 725), 486. United States v. Howel (56 Fed. 21), 384, 386. United States v. 111. Cent. R. Co. (230 Fed. 940), 335. United States v. 111. Cent. R. Co. (244 U. S. 82, 61 L. Ed. 1007. 37 Sup. Ct. 584), 309. United States v. Int. Com. Com. (Cement Case) (246 U. S. 638, 62 L. Ed. 914, 38 Sup. Ct. 408), 308a, 312, 408. 136 Table of Cases Cited. [References are to Sections.] United States v. Int. Com. Com. (Valuation Case) (251 U. S. — , 64 L. Ed. —,40 Sup. Ct. — ), 430. United States v. International Harvester Co. (214 Fed. 987), 486. United States v. Jellico Mountain Coal & Coke Co. (43 Fed. 898, 1 Fed. Anti-Trust Dec. 1), 489. United States v. Jellico Mountain Coal & Coke Co. (46 Fed. 42.2, 12 L. R. A. 753, 1 Fed. Anti-Trust Dec. 9), 486. United States v. John Reardon Sons Co. (191 Fed. 454), 486, United States v. Johnston (232 Fed. 970), 2. United States v. Joint Traffic Asso., see Joint Traffic Asso. case. United States v. Joint Traffic Asso. (76 Fed. 895, 1 Fed. Anti-Trust Dec. 615), 352, 389, 489. United States v. Joint Traffic Asso. (80 Fed. 1020, 32 C. C. A. 491. 45 U. S. App. 726, 1 Fed. Anti-Trust Dec. 869), 352, 389, 489. United States v. Joint Traffic Asso. (171 U. S. 505, 19 Sup. Ct. 25, 43 L. Ed. 259, 1 Fed. Anti-Trust Dec. 869), See Joint Traffic As- sociation Case. United States v. Jones (109 U. S. 513, 27 L. Ed. 1015, 3 Sup. Ct. 346), 7. United States v. Ju Toy (198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040), 63. United States v. Kellogg Toasted Corn Flake Co. (222 Fed. 725), 487. United States v. King (229 Fed. 275, 250 Fed. 908), 486, 500. United States v. Kissell (173 Fed. 823), 486. United States v. Kissell (218 U. S. 601, 54 L. Ed. 1168, 31 Sup. Ct. 124), 486. United States v. Knight & Co. (60 Fed. 306, 1 Fed. Anti-Trust Dec. 250), 486. United States v. Knight & Co. (60 Fed. 93-4, 9 C. C. A. 297, 24 U R. A. 428, 1 Fed. Anti-Trust Dec. 258), 486. United States v. Knight & Co. (156 U. S. 1, 11, 39 L. Ed. 325, 15 Sup. Ct. 24 9, 1 Fed. Anti-Trust Dec. 379, 387), 486. United States v. Lake Shore & M. S. R. Co. (203 Fed. 295), 486. United States v. Lake Shore & M. S. Ry. Co. (197 U. S. 536, 49 L. Ed. 870, 25 Sup. Ct. 538), 301, 432, 437, 441, 445. United States v. Lehigh Valley R. Co. (115 Fed. 373), 335. United States v. Lehigh Valley R. Co. (184 Fed. 546), 186, 371. United States v. Lehigh Valley R. Co. (184 Fed. 971, 187 Fed. 1006. 254 Fed. 332), 371, 481. United States v. Lehigh Valley R. Co. (225 Fed. 399), 63, 173. United States v. Lehigh Valley R. Co. (220 U. S. 257, 55 L. Ed. 458, 31 Sup. Ct. 3^7), 63, 173, 186, 303, 343. Table of Cases Cited. 137 [References are to Sections.] United States v. Louisville & N. R. Co. (18 Fed. 480). 481. United States v. Louisville & N. R. Co. (157 Fed. 979), 481. United States v. Louisville & N. R. Co. (212 Fed. 486), 220, 389, 437. United States v. Louisville & N. R. Co. (235 U. S. 314, 59 L. Ed. 245, 35 Sup. Ct. 113), 154, 347, 348. United States v. Louisville & N. R. Co. (236 U. S. 318, 59 L. Ed. 598, 35 Sup. Ct. 363), 220, 310, 389. United States v. MacAndrews & Forbes Co. (149 Fed. 823, 836), 493. United States v. Martin (176 Fed. 110), 342. United States v. Matthews (68 Fed. 880), 345. United States v. McCullagh (221 Fed. 288), 58. United States v. Mellen (53 Fed. 229), 348, 384. United States v. Merchants & M. Traffic Asso. (242 U. S. 178, 61 L. Ed. 233, 37 Sup. Ct. 24), 154, 308b, 348, 393. United States v. Metropolitan Lumber Co. (254 Fed. 335), 371. United States v. Michigan Cent. R. Co. (43 Fed. 26), 371, 384. United States v. Michigan Cent. R. Co. (122 Fed. 544), 64, 456, 459. United States v. Miller (187 Fed. 375), 371. United States (v. Miller (187 Fed. 369), 361. United States v. Miller (223 U. S. 599, 56 L. Ed. 568, 32 Sup. Ct. 323), 358, 364, 371. United States v. Milwaukee Rfgr. Transit Co. (142 Fed. 247), 370. United States v. Milwaukee Rfgr. Transit Co. (145 Fed. 1007), 303, 456. United States v. Missouri Pac. Ry. Co. (65 Fed. 903, 5 I. C. R. 106), 389, 456. United States v. Mooney (116 U. S. 104, 29 L. Ed. 550, 6 Sup. Ct. 304), 307. United States v. Morsman (42 Fed. 448), 335. United States v. Moseley (187 U. S. 322, 47 L. Ed. 198, 23 Sup. Ct. 90), 418. United States v. Motion Picture Patents Co. (225 U. S. 800), 487. United States v. N. C. & St. L. R. Co. (217 Fed. 254), 220. United States v. Naval Stores Co. (172 Fed. 455), 486. United States v. Naval Stores Co. (186 Fed. 592), 486. United States v. Nelson (52 Fed. 646, 1 Fed. Anti-Trust Dec. 77), 487. United States v. New Departure Mfg. Co. (204 Fed. 107), 486. United States v. New England Fish Exchange (258 Fed. 732), 486, 500, 501. United States v. New York C. & H. R. R. Co. (146 Fed. 298). 370. 138 Table of Cases Cited. [References are to Sections.] United States v. New York C. & H. R. R. Co. (153 Fed. 630), 335, 361, 371, 447. United States v. New York C. & H. R. R. Co. (157 Fed. 293), 371. United States v. New York C. & H. R. R. Co. (164 Fed 324), 371 United States v. New York C. & H. R. R. Co. (168 Fed. 699, 94 C. C. A. 76), 483. United States v. New York C. & H. R. R. Co. (212 U. S. 509, 53 L. Ed. 629, 29 Sup. Ct. 313), 204, 371, 373. United States v. Norfolk & Western Ry. Co. (109 Fed. 831), 175, 445. United States v. Norfolk & Western Ry. Co. (114 Fed. 682), 445. United States v. Norfolk & Western Ry. Co. (138 Fed. 849), 445. United States v. Norfolk & Western Ry. Co. (143 Fed. 266, 74 C. C. A. 404), 175, 445. United States v. N. P. R. Co. (28 I. C. C. 518), 401. United States v. N. P. Ry. Co. (242 U. S. 190, 61 L. Ed. 240, 37 Sup. Ct. 22), 432. United States v. Norris (255 Fed. 423), 486, 517. United States v. Northern Securities Co. (120 Fed. 721, 2 Fed. Anti- Trust Dec. 215), 58, 486. United States v. Ohio Oil Co. (Pipe Line Cases) (234 U. S. 548, 58 L. Ed. 1394, 14^9, 34 Sup. Ct. 956), 65, 67, 335, 381, 486. United States v. Oregon R. & Nav. Co. (159 Fed. 975), 346. United States v. Oregon R. & Nav. Co. (210 Fed. 378), 58. United States v. Oregon R. & Nav. Co. (163 Fed. 640), 481. United States v. Oregon S. L. R. Co. (160 Fed. 526), 481, 483. United States v. Pacific & A. R. & Nav. Co. (228 U. S. 87, 57 L. Ed. 742, 33 Sup. Ct. 443), 64, 145, 195, 241, 327, 383, 486. United States v. Patten (187 Fed. 664), 486. United States v. Patten (226 U. S. 525, 57 L. Ed. 333, 33 Sup. Ct. 141), 486. United States v. Patterson (55 Fed. 605, 640, 641, 1 Fed. Anti-Trust Dec. 133, 176, 177), 487. United States v. Patterson (59 Fed. 280, 1 Fed. Anti-Trust Dec. 244), 487. United States v. Patterson (201 Fed. 697), 486. United States v. Patterson (205 Fed. 292), 486. United States v. P. R. Co. (153 Fed. 625), 361. United States v. P. M. R. Co. (171 Fed. 586), 481. United States v. P. & R. Co. (184 Fed. 543), 186, 371. United States v. Penn. R. Co. (235 Fed. 961), 326. United States v. Philadelphia & R. Co. (223 Fed. 202), 481. Table of Cases Cited. 139 [References are to Sections.] United States v. P. & R. Ry. Co. (232 Fed. 946), 4i, 364. United States v. Philadelphia & R. Co. (247 Fed. 469, 159 C. C. A. 523), 481. United States v. Philadelphia & R. Co. (238 Fed. 428), 483. United States v. Piowaty & Sons (251 Fed. 375), 486. United States v. Pomeroy (152 Fed. 279), 371. United States v. P. R. Co. (242 U. S. 208, 61 L. Ed. 251, 37 Sup. Ct. 95, 227 Fed. 911), 24, 142a, 174, 309, 312, 338, 389. United States . Property Basis for Returns. 47. When Does a Rate Violate Rights under the Fourteenth Amend- ment ? 48. Rates. Evidence That a Rate Is Confiscatory. Rates on a Few Commodities. 49. Same Subject. Relative Cost of Different Kinds of Transporta- tion. 50. Testing a Rate by Use to Determine Whether or Not It Is Confiscatory. 51. Issuance of Stocks and Bonds. 52. Long and Short Haul. 53. Ferries. 54. Bridges. 55. Regulating Charges for Transportation by Water. 56. Regulating Pilotage, Ports, Harbors and Vessels. 57. Boards of Trade and Exchanges. 58. Inspection. Quarantine, Game, Food, Liquor, and Lottery Laws. 59. Taxation, Including License Taxes. 60. Procedure to Test the Validity of State Regulations. § 1. Scope of Chapter. — Pavagrapli 3, section 8, Article 1, of the Constitutiori of the Ignited States contains the grant of power to Congress over interstate commerce and gives Con- gress the power "to regulate commerce with foreign nations, among the several states, and with the Indian tribes." It is not the purpose of this book to treat of the subject of in- terstate commerce in its widest scope, the work being confined to a discussion of the rights and duties of shippers and carriers. To determine what these rights and duties are it is necessary to discuss what is interstate commerce, when a carrier is engaged therein, and to what regulations an interstate carrier is subject. That such carrier may, as to that portion of its business which is within a particular state, be subjected to some state regula- tion is, under the present laws of Congress, indisputable. The extent of this regulation by the state is the subject of this chapter. <§ 2] Engaged in Interstate Commeece. 151 It may be said, as a general rule, that the proper state authorities, duly acting, may pass all reasonable laws for the regulation of the health, happiness and safety of its citizens; and such laws and regulatio;is 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 interstate commerce does not exclude the states from the exercise of power over such commerce. In the ab- sence of congressional legislation, or in the absence of action b.y the Interstate Commerce Commission where the matter has been delegated to it, states may indirectly legislate affecting interstate commerce. § 2. Interstate Commerce Defined. — Interstate commerce, as defined in the Constitution of the United States, is com- merce "among the several states," but the Constitution does not define commerce. What "commerce" includes cannot be definitely stated or limited. Its primary meaning is traffic, purchase and sale, but it means also intercourse, interchange or mutual exchange of commodities. It includes the carrying by independent carriers of things or commodities which are ordinarily the subject of traffic and which have in themselves a recognized value in money. This intercourse includes all the preliminary, intervening and consummating acts, instru- mentalities and dealings that bring about the sale or exchange of commodities. It embraces transportation by land and water and the means and appliances necessary thereto, in- cluding transportation of persons and property.^ Products of farm, mine, forest or factory can not be said to have entered the field of interstate commerce until ac- tually launched on the way to another state or committed to a carrier for transportation to such state. ^ The sale of such 1. Gibbons v. Ogden, 9 Wheat, fied and subject discussed, Swift & 1, 22 U. S. 1, 6 L. Ed. 23 (1824); Co. v. United States, 196 U. S. Lottery case, Champion V. Ames, 375, 49 L. Ed. 518, 25 Sup. Ct. 276. 188 U. S. 321, 345, 47 L. Ed. 492, For a discussion of what trans- 23 Sup. Ct. 321; Simpson et al, R. poration is included within the R. Com. of Minnesota v. Shepard provisions of the Act to Regulate ("Minnesota Rate Cases") 230 U. Commerce, see, post, Sec. 67. S. 352, 57 L. Ed. 1511. 33 Sup. Ct. 2. McCluskey v. Marysville &. 729, and cases cited; United States N. R. Co. 243 U. S. 36, 61 L. Ed. V. Swift & Co., 122 Fed. 529, Modi- 578; 37 Sup. Ct. 374, quoting from 152 State Regulation of Carriers. [§ 2 products and their delivery to the purchaser free on board ears in the state of primary production for transmission to another state is equivalent to a committment to a carrier and con- stitutes the transaction one of interstate commerce/ The Supreme Court' in holding that the transmission of information by telegraph was interstate commerce stated as a principle to be applied: "Practice, intent and the typical course, not title or niceties of form, were recognized as determining the char- acter" of any particular transaction. A transaction not itself within the meaning of the term interstate commerce may be regulated by Congress under the commerce clause. This on the principle that Congress has the power to protect interstate commerce from burdens, although the thing which causes the burden is not such com- merce.* The transmission of intelligence by telegraph or telephone is an agency of commerce and intercommunication. The powers of Congress over interstate commerce must "keep pace with the progress of the country, and adapt themselves to the new development of time and circumstances,* The The Daniel Ball, 10 Wall 557, 19 L. 3. Penn. R. Co. v. Sonman Ed. 999 and Coe v. Errol 116 U. S. Shaft Coal Co., 242 U. S 120, 61 517, 29 Led. 715, 6 Sup. Ct. L. Ed. 188, 37 Suj;,. Ct. 4G. 475. In the Daniel Ball "com- 4. Western Union Tel. Co. v. mon" was used before carrier, Foster, 247 U. S. 105, 6:L L. Ed. but it is not believed that 1006; 38 Sup. Ct. i.lS See also such a restriction is legally sound. Valley and Siletz R. R. v. S. P. Co. In U. S. V. Burch 226 Fed. 974, 53 I. C. C. 397. P9:). 975 District Judge Dooling in 5. Houston E & W. T. R. Co. holding that taking a woman in v. United States, 234 U. S. 342, an automobile across a state line 58 L. Ed. 1341, 34 Sup. Ct. 833. was interstate commerce said: This principle seemingly appli- "Interstate commerce then is, cable, (See article by present among other things, the passage of writer Case and Comment April, persons or property from one 1917, P. 906) was disregarded in state to another. It does not nee- the Child Labor Case, Hammer v. essarily, or indeed at all, involve Dagenhart, 247 U. S. 251, 62 L. Ed. the idea of a common carrier, or 1101, 38 Sup. Ct. 529, 3 A. L. R. the payment of freight or ii.re". 649. This rule was applied to tht Tran- 6. Pensacola Tel. Co. v. West- sportation of liquors. Ex parte, ern Union Tel. Co., 96 U. S. 1, 9; Westbrook 250 Fed. 636. 24 L. Ed. 708; Western Union Tel. Co. v. Texas, 105 U. S. 460, 26 L. § 3] Engaged, in Interstate Commeece. decisions in the White Slave cases' are but an adaptation to nuKlern day developmertf, of the principles stdted in Gibbons V. Ogden, Note 1 Supra. The importation of films showing a prize fight and the transportation tliereof in interstate commerce may be pre- vented imtler the eoniniet-cc claiisps". § 3. Power of Congress Exclusive, When. — Congress alone has power directly to regulate or burden interstate commerce, and as to svu-h direct burden or regulation the power of Con- gress is plenary, all pei'vading, exclusive and indivisible. In Ed. 1067; Western Union Tel. Co. V. Pendleton, 122 U. S. 347, 30 L. Ed. 1187, 7 Sup. Ct. 1126; teaching by correspondence schools com- merce, International Text Book Co. V. Lynch, 81 Vt. 101, 69 Atl. 541. Shoemaker v. Chesapeake & Potomac Tel. Co., 20 I. C. C. 614; regulation by interstate commerce commission of an interstate tele- phone line; Postal Tel. Co. v. City of Mobile, 179 Fed. 955, 960; "Tele- graph business is commerce." Messages passing from one state to another Is interstate commerce and subject to Federal and free from state regulations, Western Union Tel. Co.. v. Crovo, 220 U. S. 364, 55 L. Ed. 498, 31 Sup. Ct. 399; Western Union Tel. Co. v. Commer- cial Milling Co., 218 U. S. 406, 54 L. Ed. 1088, 31 Sup. Ct. 59, Affirm- ing Commercial Milling Com- pany V. Western Union Tel. Co., 151 Mich. 425, 115 N. W. 698. In- surance is not commerce, New York Life Ins. Co. v. Deer Lodge County, 231 U. S. 495, 58 L. Ed. 332, 34 Sup. Ct. 167 and cases cited. Wages of railroad em- ployees are within the regulatory power granted by the Commerce Clause. Wilson v. >New 243 U. S. 332, 61 L. Ed. 755, .37 Sup. Ct. 298. Other illustrations are: Contracts for vaudeville artists who travel and transport their necessary equipment ami;ng the states, Marienelli v. U. S. Booking Offices, 227 Fed. 165; Piping gas from one state to another, Landon v. Public Utilities Co. of Kansas, 242 Fed. 658; printing, publishing and dis- tributing a newspaper among the states. Post Printing & Pub. Co., V. Brewster, 146 Fed. 321. 7. Hoke V. United States, 227 U. S. 308, 57 L. Ed. 523, 33 Sup. Ct. 281, 43 L. R. A. (N. S.), 906, Ann. Cas. 1913E 905; Athanasaw v. Uni- ted States, 227 U. S. 326, 57 L. Ed. 528, 33 Sup. Ct. 285; Ann. Cas. 1913E, 911; Bennett v. United States, 227 U. S. 333, 57 L. Ed. 531, 33 Sup. Ct. 288; Johnson v. United States, 215 Fed. 679. That a state, Congress having acted, may not forbid the importation of women for immoral purposes, is held in State V. Harper, 48 Mont. 456, 138 Pac. 495, 51 L. R. A. (N. S.). 157. See also Caminetti v. U. S. 242 U. S. 470, 61 L. Ed. 442, :^7 Sup. Ct. 192. 8. Weber v. Freed, 239 U. S. 325, 60 L. Ed. 308, 36 Sup. Ct. 131, Ann. Cas. 1916C 317; United States V. Johnston, 232 Fed 970. 154 State Regulation of Carrieks. [^ 3 tlie absence of federal regulation interstate commerce is free from direct regulation. Says IVlr. Justice Hughes in the Minne- sota Rate Cases :" 'There is no room in our scheme of government for the as- sertion of state power in hostility to the authorized exercise of federal power. The authority of Congress extends to every part of interstate commerce, and to every instrumentality or agency by which it is carried on ; and the full control by Con- gress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and in- trastate operations. This is not to say that the nation may deal with the internal concerns of the state, as such, but that the execution by Congress of its constitutional power to regulate interstate commerce is not limited by the fact that intrastate transactions may have become so interwoven there- with that the effective government of the former incidentally controls the latter. This conclusion necessarily results from the supremacy of the national power within its appointed .sphere. * * * The grant in the Constitution, of its own force, that is, without action by Congress, established the essen- tial immunity of interstate commercial intercourse from the direct control of the states with respect to those subjects em- braced within the grant which are of such a nature as to de- mand that^ if regulated at all, their regulation should be pre- scribed by a single authority. It has repeatedly been declared by this court that as to those subjects which require a general system or uniformity of regulation the power of Congress is a exclusive. ' ' 9. Simpson et al., R. R. Co. of States, 222 U. S. 20, 26, 27, 56 L. Minnessota v. Shepard, 230 U. S. Ed. 72, 32 Sup. Ct. 2; Mondou v. 352, 399, 57 L. Ed. 1151, 33 Sup. Ct. New York, N. H. & H. R. R. Co., 729, citing McCulloch v. Maryland, 223 U. S. 1, 47, 54, 55, 56 L. Ed. 4 Wheat 316, 17 U. S., 316, 405, 327, 32 Sup. Ct. 169, 38 L. R. A. 426, 4 L. Ed. 579; The Daniel (N. S.), 44; Chicago R. I. & P. R. Ball, 10 Wall, 77 U. S. 557, 565, 19 Co. v. Hardwick Farmers Elevator L. Ed. 999; Smith v. Alabama, 124 Co., 226 U. S. 426, 57 L. Ed. 284, U. S. 465, 473, 31 L. Ed. 508, 8 33 Sup. Ct. 174; St. Louis I. M. & Sup. Ct. 564; Baltimore & 0. R. Co. S. R. Co. v. Edwards, 227 U. S. V. Interstate Com. Com., 221 U. S. 265, 57 L. Ed. 506, 33 Sup. Ct. 26; 612, 618, G19, 55 L. Ed. 878, 31 Sup. Reversing same style case, 94 Ark. Ct. 621; Sou. Ry. Co. v. United 394, 127 S. W. 713. In McDermott <§. 3] Engaged, in Interstate Commeece. 155 The statement of this rule in Western Union Telegraph Co. V. James" shov>'S that as to "those matters relating, to com- merce -which are not of a nature to be affected by locality, but which necessarily ought to be the same over the whole country," failure of Congress to act is "a declaration that in those respects commerce should be free and unregulated b}'' any statutory enactment." Street railways engaged in interstate commerce cannot be regulated as to their interstate rates by state authority." In the Shreveport case^" rates established under authority of the laws of the state of Texas were maintained by the carriers on intrastate traffic, which rates unlawfully discriminated against interstate rates maintained by the same carriers. Fpon comi")laint to the Interstate Commerce Commission, it was found from the evidence of record that such relationship of rates resulted in undue preference and unjust discrimina- tion, in violation of section 3 of the Act to Regulate Commerce. Tlie carriers defendant contended that the unlawful dis- eriminati(m, if any, resulted from rates made under authority of the laws of Texas, and that such rates so made were not subject to the jurisdiction of the Interstate Commerce Com- mission. The contention of the carriers was not adopted, the F^upreme Court holding that section 3 prohibited all unjust discrimination, and that the fact that the discrimination arose from intrastate rates did not deprive Congress of the power V. Wisconsin 22S U. S., 115, 128, 57 nOo; 16 Sup. Ct. 934, and see L. Ed. 754, 33 Sup. Ct. 431. it was Welton v. Missouri, 91 U. S. 275. said, that Congress has ample 282, 23 L. Ed. 247; Hall v De power "not only to pass laws Cuir, 95 U. S. 5 Otto 485 24 L which shall regulate legitimate gd. 547: Mobile County v Kim- commerce among the states and i^^ll, 102 U. S. 691, 26 L. Ed 238; with foreign nations, but has full Covington, etc., Bridge Co. v. Ken- power to keep the channels of such tucky, 154 U. S. 204, 38 L. Ed. commerce free from the trans- gg2 14 Sun Ct 3 087 portation of illicit or harmful arti- cles, to make suoh as are injurious to the public health outlaws of such commerce and to bar them 11. South Covington Ry. v. Cov- ington, 235 U. S. 537, 59 L. Ed. 350, 35 Sup. Ct. 158. the facilities and privileges there- ^2. Houston K. & W. T. Ry. Co. of., V. United States. 234 U. S. 342, 10. Western Union Tel. Co. v. ^^ ^- ^^- l-^, 1341, 34 Sup. Ct. James, 162 U. S. 650, 40 L. Ed. ^^^' affirming Tex. & P. Ry. Co. v. 156 State Regulation of Carkiees. [<^ 4 to remove it. and that "in removing the injurious discrimina- tions against interstate traffic * * * Congress is not bound to reduce" interstate rates "below what it may deem to be a proper standard, fair to the carrier and to the public." § 4. Power of the States Indirectly to Affect Interstate Commerce. — That Congress alone may directly regulate or burden interstate commerce does not mean that the states may not in the absence of federal action and under the police power of the state pass regulations which may indirectly affect such commerce. AVhere diversity of treatment is pos- sible, until Congress acts there is room for state regulation which may have an indirect effect on interstate commerce. The power of Congress being supreme, when there is federal action state regulations are thereby superseded. As to all external concerns Congress alone may act. As to "internal concerns which affect the states generally," ^^ Congress having failed to act, a state may legislate in "safeguarding life and property and promoting comfort and convenience within its jurisdiction," although such legislation may extend incident- ally to the operation of the carrier in the conduct of interstate business." " U. S., 205 Fed. 380, and sustain- R. I. & P. Ry. Co., 100 Minn, ing order of the commission in 25, 124 N. W. 819. When Con- Railroad Com. of La. v. St. L. S. gress acts prior state laws in con- W. Ry. Co., 23 L C. C. 31. See flict are superseded, Northern Pac. also, Corp. Com. of Okla. v. A. Ry. Co. v. State of Washington, T. & S. F. Ry. Co., 31 I. C. C. 222 U. S. 370, 56 L. Ed. 237, 32 532; Merchants Exchange of St. Sup. Ct. 160; Barrett v. City of Louis V. B. & O. R. Co., 34 I. New York, 232 IJ. S. 14, 58 L. Ed. C. C. 341. 483, 34 Sup. Ct. 203. The question 13. Gibbons v. Ogden, 9 Wheat, is well discussed and properly de- 22 U. S. 1, 6 L. Ed. 23 (1824). cided in People v. Erie R. Co., 135 14. Simpson et al., R. R., etc., App. Div. 767, 119 N. Y. Supp. Com. of Minnesota v. Shepard, 893; it was there held that the ("Minnesota Rate Cases") 230 U. fact that Congress had legislated, S. 352, 410, 57 L. Ed. 1151, 33 although the legislation was sus- Sup. Ct. 729, citing cases; see also pended, superseded the state law; Chicago, R. I. & P. Ry. Co. v. the case was reversed on appeal, Hardwick Farmers' Elevator Co., although it would seem that the 226 U. S. 426, 57 L. Ed. 284; 33 lower court correctly stated the Sup. Ct. 174, reversing Hardwick law; People v. Erie R. Co., 198 N. Farmers' Elevator Co. v. Chicago, Y. 369, 91 N. E. 849. For an elabo- § 5] Engaged in Interstate Commerce. 157 In holding that motor vehicles could be regulated by a state although owned in and licensed by another state, the Supreme Court followed the principle above and said: "In the absence of National legislation covering the subject, a State may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles moving in interstate com- ujcrce as well as others." ^^ § 5. Commerce within the Exclusive Control of the States. — We have seen that there is a commerce over which Congress has exclusive control. There is also a commerce which, in the absence of federal regulation, may be indirectly affected by slate legislation. There is also a commerce which is wholly intrastate, the regulation of which does not atfect directly or indirectly interstate commerce. This commerce the states alone may regulate. In the Railroad Commission cases," at p. 334. tlie Supreme Court of the United States said: rate discussion, if not a correct conclusion, see So. Ry. Co. v. R. R. Com. of Indiana, 179 Ind. 23, 100 N. E. 337. This case was reversed because Congress had acted. So. Ry. Co. V. Railroad Com. of Indiana, 236 U. S. 439, 59 L. Ed. 661, 35 Sup. Ct. 304. 15. Hendrick v. Maryland, 235 U. S. 610, 59 L. Ed. 385, 35 Sup. Ct. 140; Kane v. New Jersey, 242 U. S. 160, 61 L. Ed. 222, 37 Sup. Ct. 30. 16. Stone v. Farmers Loan & Trust Co., 116 TI. S. 307, 334, 29 L. Ed. 636, 6 Sup. Ct. 191, 334, 338. This case was quoted with approval in the Minnesota Rate Cases, page 415, for which see note 9, supra. For summary of state legislation, see Interstate Com. Com. v. Cincinnati, N. O. & T. P. Ry. Co., 167 U. S. 479, 495, 42 L. Ed. 243, 17 Sup. Ct. 896, also cited at page 414 of the opin- ion in the Minnesota Rate Cases. The classification of power made herein in sections 3, 4 and 5 is made by Mr. Justice McKenna in Southern Ry. v. Reid, 222 U. S. 424, 43-5 56 L. Ed. 257, 32 Sup. Ct. 140, where he said "Tlie power of the state over the general subject of commerce has been divided into three classes: First, those in which the power of the state is exclusive; Second, those in which the state may act in the absence of legislation by Congress; Third, those in which the action of Congress is exclusive and the state cannot act at all.'' Covington, etc.. Bridge Co. v. Kentucky, 154 U. S. 204, 209, 38 L. Ed. 962, 14 Sup. Ct. 1087; Western Union Tele- graph Co. V. James, 162 U. S. 650, 655, 40 L. Ed. 1105, 16 Sup. Ct. 934. State V. Atlantic C. L. R. C, 61 Fla. 799, 54 So. 900; State v. Atlantic C. L. R. Co., 56 Fla. 617, 47 So. 969. 158 State Regulation of Careiebs. ['^ 5 "Every person, every corporation, everything within the territorial limits of a state is, while there subject to the con- stitutional authority of the state government. Clearly under this rule Mississippi may govern this corporation, as it does all domestic corporations, in respect to every act and every- thing within the state which is the lawful subject of state government. It may, beyond all question, by the settled rule of decision in this court regulate freights and fares for busi- ness done exclusively within the state, and it would seem to be a matter of domestic concern to prevent the company from discriminating against persons and places in Mississippi. So it may m.ake all needful regulations of a police character for the government of the company while operating its road in that jurisdiction. In this way it may certainly require the company to fence so much of its road as lies within the state; to stop its trains at railroad crossings ; to slacken speed while running in a crowded thoroughfare ; to post its tariffs and time-tables at proper places, and other things of a kindred character affecting the comfort, the convenience, or the safety of those who are entitled to look to the state for protection against the wrongful or negligent conduct of others." In the same case, at p. 331, the court showed that this exclusive jurisdiction to act does not mean that the extent of the regulation is itself unlimited. The court 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 pretence of regulating fares and freights the state can not require a railroad corporation to carry persons or property without reward ; neither can it do that which in law amounts to a taking of private property for public use without just compensation or without due process of law." States may regulate the commerce within their respective jurisdictions by legislating directly, or they may, as has been done in nearly all of the states, delegate to a board or com- mission certain powers to prescribe rules and regulations, to fix rates and to exercise a general supervision over the cor- porations or persons within the regulative jurisdiction. The legislative acts creating commissions and prescribing the § 6] Engaged in Interstate Commeece. 159 powers and duties thereof must of necessity speak in more or less general terms, for as said by the Supreme Court of Florida:" "The difficulty of making a specific enumeration of all such powers as the Legislature may intend to confer upon Railroad Commissioners for the regulation of common carriers in the interest of the public welfare renders it necessary to confer some power in general terms ; and general powers in general terms ; and general powers given are intended to confer other powers than those specially enumerated." § 6. All Commerce Subject to Regulation. — The divisions showing where the power to regulate commerce rests in the different classes named in the three preceding sections, as said by the Supreme Court, "express but the extreme bound- aries of the subject."** More definite principles must be ap- plied to particular cases. But in all cases the power to regulate rests somewhere. It must of necessity be burdensome to interstate carriers to be subject to regulation by two governments acting independ- ently of each other, and it is frequently a difficult question to determine which has the power to require a particular act or to make a particular rule. That Congress may extend its power is clearly indicated in the Minnesota Rate cases and the Shreveport case, cited supra, and that the extent of the power of Congress under the Constitution may include a scope much wider than has been exercised under the Act to Regulate Commerce and acts supplemental thereto and amend- atory thereof, is shown by the decisions of the Supreme Court under the Employers' Liability Acts." Some of the delicate and difficult questions which arise from the dual regulation of carriers, appear from the result of the decision of the Supreme Court in the Minnesota Rate cases. Sec. 3 supra. Duluth. Minnesota, and Superior, Wisconsin, are about 3 miles apart, and each is located on Lake Superior. Rates from and to these ports must of necessity be the same. From Duluth to Minnesota points over one line is an intra- 17. Goods manufactured by child 18. Southern Ry. Co. v. Reid, labor could not for that reason supra. alone be denied shipment or sale 19. Sec. 332, post. Mondou v. in interstate commerce. See note N. Y., N. H. H. R. Co., Second 5 supra. Employers' Liability Cases, 223 U. 160 State Regulation of Carriers. [§ 7 state inoveiiient ; over other lines such movement is interstate. All shipment'; from Superior to Minnesota points move inter- state. That the paramount authority of Congress may be ex- ercised, the regulation of rates from these cities, whether interstate or intrastate, must be by national authority. Under the decisions in the Minnesota Rate cases, the Minnesota rate schedule to Duluth intrastate became effective. Higher rates having been paid pending the litigation, shippers intrastate received a refund of part of the rate paid by them, and in complaints before the Tnterstale Commerce Commission it was contended that the refunds paid on intrastate shipments should be adopted as the measure of refunds on interstate shipments. The Interstate Commerce Commission applied the paramount authority of the national government regarding the state, prescribed rates as a fact to be considered, but deter- mined the question for itself.'" § 7. Eminent Domain. — The right of eminent domain is an incident to sovereignty. The right has been defined as the power to compel an owner to sell and convey property when the public necessities require."' The right must, of course, be exercised within constitutional limits. The right may be ex- ercised for a public purpose and upon payment of a proper compensation, after due process of law, against the right of way of an interstate carrier. Tt has been held by the Supreme Court of the United States"" that the power of eminent domain was not surrendered by the states to the United States nor affected by the federal Constitution, except that it must be exercised in accordance with due ]iorcess of law upon pay- ment of compensation. Tlie jiower of eminent domain extends S. 1, 56 L. Ed. 327, 32 Sup. Ct. 21. United States v. Jones, 109 169, 38 L. R. A. ( N. S.) 44. U. S. 513, 27 L. Ed. 1015, 3 Sup. 20. Freight rates from Minne- Ct. 346; Cincinnati v. Louisville sota points, 32 T. C. C. 361. Rates & N. R. Co., 223 U. S. 390, 56 L. on Beer and Other Malt Products, Ed. 481, 32 Sup. Ct. 267; Fletcher 31 I. C. C. 544. Compare Corp. v. Peck, 6 Cranch, 10 U. S. 87, 3 L. Com. of Okla. v. A. T. & S. F. Ry. Ed. 162. Co., 31 I. C. C. 532; Trier v. C. 22. Cincinnati v. Louisville & St. P. M. & S. Ry. Co., 30 L C. C. N. R. Co., 223 U. S. 390, 56 L. Ed. 352. Holmes & Hallowell Co. vs. 481, 32 Sup. Ct. 267, and also see, G. N. Ry. Co., 37 I. C. C. 627. Western Union Tel. Co. v. Penn- § 7] Engaged in Interstate Commerce. IGi to tanc-ibles and intangibles, including ehoses in action, con- tracts and charters. An appropriation of a contract under the right of eminent domain, with compensation, neither chal- lenges its validity nor impairs the obligation thereunder. It is a taking of property, not an impairment of an obligation. Every contract, whether between the state and an individual or between individuals only, is subject to the law of eminent domain, for there enters into every engagement the unwritten condition that it is subject to appropriation for public use. Congress has made all railroads governmental post roads" and riuthorized te]egrai)h companies, under certain conditions, to construct, maintain and operate lines thereover."* These acts alone gave no i-ight to telegraph companies to acquire the use of the railroads' right of way, but a state statute giving such right against the right of way of an interstate carrier is not invalid as an attempted regulation of interstate commerce; it being the opinion of the Circuit Judges of the Sixth Circuit that "it was the intention of Congress to leave to the states the question of granting or withholding the right of eminent domain.""'^ The right arising under a state law comes within that division of the state's powers which may be exercised in the absence of federal regulation. IMunicipalities and states may not regulate or tax messages for the Federal government, nor deny telegraph companies whi'-h have accepted the terms of the Act of July 24. 1866 the right to continue the use of streets. Reasonable local regulations jiot in conflict with these principles and not a regulation of interstate commerce are permitted."" sylvania R. R. Co. et al., 195 U. S. 3579, 3580)). Cincinnati v. Loiiis- 540, 49 L. Ed. 312, 25 Sup. Ct. 133. ville & N. R. Co., 223 U. S. 390, 56 1 Ann. Cas. 517. L. Ed. 481, 32 Sup. Ct. 267, West.- 23. Acts June 15, 1866, c. 124, 14 ern Union Tel. Co. v. Penn. R. Stat. 66 (Rev. Slat. Sec. 5258 U. R. Co., 195 U. S. 540, 49 L. Ed. S. Comp. Stat. 1901, p. 3565), and 312, 25 Sup. Ct. 133, 1 Ann. Cas. Acts June 8, 1872, c. 335, 17 Stat. 517. 308, 209 (Rev. Stat Sec. 3964, U. S. 25. Louisville & N. R. Co. v. Comp. St. 1901, p. 2707); 5 Fed. Western Union Tel. Co.. 207 Fed. Stat. Ann. 900. 1. 124 C. C. A. 573. 24. Acts July •'!. 1866, c. 230, 14 26. See also Williams v. Talla- Stat. 221 (Rev. Stat. Sees. 5263- dega, 226 U. S. 404. 57 L. Ed. 275, 5269 (U. S. Comp. St. 1901. pp. 33 Sup. Ct. 116, holding that the 1.62 State Regulation of Carriees. [§ 8 That tho United States may exercise the power to condemn land "whenever it is necessary or appropriate * * * in tl^e execution of any of the powers granted * * * by the Constitntion,'"' can not he doubted. Nor can the state "by action or inaction, prevent, unreasonably burden, discriminate against or directly regulate interstate commerce or the right to carry it on.""' This quotation, read in the light of the case in which the language was used, is a declaration that a state, by refusing the right of eminent domain, can not pro- hi])it interstate commerce. § 8. States May Establish Means for Interstate Transporta- tion. — The states may grant corporate franchises, and the corporations so created, being authorized so to do by the law of their creation, may engage in inter^-tate transportation. Tt is also true that a state may, as a general rule, exclude a coi'poration of another state from transacting ordinary busi- ness not interstate commerce, within its limits, or permit the engaging in such business on terms. The state creating a cor- poration does not confer thereon the right to engage in inter- state commerce, nor can a state "exclude from its limits a corporation engaged in such commerce.""" In Oklahoma v. Kansas Natural Gas Co.,'" the Supreme Court of the United States held invalid a law of Oklahoma which prohibited a corporation of another state from engaging in the transporta- tion of oil from Oklahoma in interstate commerce. The law was sought to be sustained upon the theory that it was made to "conserve" the natural resources of the state. In denying the validity of this contention the court argued that, if Okla- homa could exercise such power, other states might, and. federal statute v/as merely per- S. 499, 40 L. Ed. 510, 16 Sup. Ct. missive and citing cases. Essex 397. v. New England Tel. Co. 239 U. S. 28. Oklahoma, West, Attorney 313, 60 L. Ed. 301, 36 Sup. Ct. 102. General v. Kansas Natural Gas 27. United States v. Gettysburg Co., 221 U. S. 229, 262, 55 L. Ed. Elec. Ry.. 160 U. S. 668, 679, 40 L. 716, 31 Sup. Ct. 564; affirming Ed. 576, 16 Sup. Ct. 427; Kohl v. Haskell v. Kansas Natural Gas United States. 91 U. S. 367, 23 Co., 172 Fed. 545. L. Ed. 449; Cherokee Nation v. 29. See note 28 suj)ra. 221 U. S. Kansas Railway, 135 U. S. 641, 656, at p. 260 and cases cited through- 34 L. Ed. 295, 10 Sup. Ct. 965; out opinion. Chappell V. United States, 160 U. § 9] Engagkii in Interstate Commerce. 163 said the court, ''a complete annihilation of interstate com- merce might result." Mr. Justice McKenna, at p. 261 of the opinion, quotes with approval these propositions: "No state by the exercise of, or by the refusal to exercise, any or all of its powers, may prevent or unreasonably burden interstate commerce within its borders in any sound article thereof. "No state by the exercise of, or by the refusal to exercise, any or all of its powers, may substantially discriminate against or directly regulate interstate commerce or the right to carry it on." A corollary to this statement of the law is, "that a cor- poral ion of ouf state authorized by its charter to engage in lawful commerce among the states )nay not be prevented by another state from coming into its limits for all the legitimate purposes of such commerce." '^^ This is true because the right to carry on interstate commerce is not a privilege granted by a state but is one of the privileges of every citizen of the T^nitc'l States, "and the accession of mere corporate facilities * * * cannot have the effect of depriving them of such right. ""^ A fortiori Congress might create or license a cor- poration to engage in commerce "among the states" and no state could prevent such corporation "from coming into its limits for all the legitimate purposes of such commerce." Non incorporation does not prevent the regulation of a com- mon carrier.*" § 9. Regulation of Facilities — Depots. — The Acts of Con- gress regulating interstate commerce applv to "common * * * carriers engaged in the transportation of passengers or property * * * by railroad.""' "Railroad" includes 30. Western Union Tel. Co. v. be excluded by a state from do- Kansas, 216 U. i^. 1, 27, 54 L. Ed. ing business within its borders. 355, 30 Sup. Ct. 190. 32. Piatt v. Le Cocq, 150 Fed. 31. Buck Stove Co. v. Vickers, 391, reversed on another point, 226 U. S. 205, 215, 57 L. Ed. 189, Piatt v. LeCocq, 158 Fed. 723, 85 33 Sup. Ct. 41. See also, Mercan- C. C. A. 621, 15 L. R. A. (N. S.), tile Trust Co. v. Tex. & P. Ry. 558; United States Express Co. v. Co., 216 Fed. 220— holding that State, 164 Ind. 196, 73 N. E. 101. a railroad company incorporated 33. Sec. 1 Act to regulate Com under an act of Congress can not merce, post, Sec. 335. 164 State Rkgulation of Carriers. [§ 9 "bridges, ear floats, lighters and ferries * * * and also all switches, spurs, tracks and terminal facilities of every kind used or necessary in the transportation of * * * per- sons or property * * * and also all freight depots."^* The act does not apply to "transportation of passengers or property * * * wholly within one state." ''^ A station for the accommodation of passengers and for the receipt and delivery of freight is necessary both for interstate and inti'astate transportation, and generally such stations serve the needs of each class of transportation. It has been held that the provision limiting the scope of the Acts of Con- gress regulating interstate transportation applies to all por- tions of the act ;''" although the limiting proviso does not justify a state in discriminating against interstate commerce."' From this it follows that there is a field in which the states may act in regulating carriers, although such carriers may be engaged in both interstate and intrastate transportation. The boundaries of the respective powers of the state and federal governments are not distinctly marked. Jt has been said that the Act of Congress, "excludes the right of a state to regulate * * * the obligation of furnishing the means of interstate transportation."^' In the Larabee Mills case'" it was held that the mere grant by Congress of power to the Interstate Commerce Commission does not, in the absence of action by the Commission, change the rule that the states "may regulate many matters which indirectly aifcct interstate commerce." There is, as said by Mr. Justice Hughes in the Minnesota Rate Cases,'" an "interblend- ing of operations in the conduct of interstate and local busi- 34. Id., Sec. a37, iwst. 57 L. Ed. 284, 33 Sup. Ct. 174; St. 35. Id., Sec. 33o, post. Louis I. M. & S. Ry. Co. v. Ed- 36. Simpson ei al., R. R. Com. wards, 227 U. S. 265, 269, 270, 57 of Minnesota v. Sliepard, 230 U. L. Ed. 506, 33 Sup. Ct. 26. S. 352, 432, 433, 57 L. Ed. 1511, 39. Missouri P,ic. Ry. Co. v. Lar- 33 Sup. Ct. 729. abee Flour Mills Co., 211 U. S. 37. Houston & Texas Railway v. 612, 623, 53 L. Ed. 352, 29 Sup. U. S., 234 U. S. 342, 58 L. Ed. 1341, Ct. Rep. 214, affirming Larabee 34 Sup. Ct. 8.3.3. Flour Mills Co. v. Missouri Pac. 38. Demurrage Cases, Chicago Ry., 74 Kan. 808, 88 Pac. 72. R. I. & P. Co. V. Hardwick Far- 40. Note 36, SKpra. mers Elevator Co., 226 U. S. 426, § 9] Engaged IN Interstate Oommeece. 16o ness by interstate carriers. * * * The same right-of-way, terminals, rails, bridges, are provided for both classes of traffic ; * * * the proportion of each sort of business varies from year to year and, indeed, from day to day ; * * * no divi- sion of tlie plant, no apportionment of it between interstate and local traffic, can be made today which will hold tomorrow ; * * * terminals, facilities and connections in one state aid the carrier's entire business and are an element of value with re- spect to the whole property and the bnsiness in other states." But notwithstanding this is true, Congress has not occupied the whole field, and the states may act so as indirectly to affect interstate transportation where, "congressional action leaves room without a conflict for the operation of the state law in the same field."" A statute in Mississippi required railroads to "establish and maintain such depots as shall be reasonably necessary for the public convenience." and to "stop such of the passenger and freight trains at any depot as the business and public convenience shall require." The Railroad Commission of Miss- issiiipi having ordered a carrier to stop an interstate train at a particular depot, Mr. Justice Peckham delivering the opinion of the court, [ifter citing eases, said:" "Upon the principle decided in these cases, a state railroad commission has the right, undf^r a state statute, so far as railroads aro concerned, to compel a company to stop its train under the circumstances already referred to, and it may order the stoppage of such trains if the company does not otherwise furnish proper and adequate accommodation to a particular locality, and in such cases the order may embrace a through interstate train ac- tually running and compel it to stop at a locality named. In such case, in the absence of congressional legislation covering the subject, there is no illegal or improper inter- ference with the interstate commerce right." The order, however, was lield invalid as unreasonable. A carrier may not be compelled by mandamus to build a station at a particular place in the absence of a specific statu- 41. LouisviUe & N. R. Co. v. .344, .51 L. Ed. 209, 27 Sup. Ct. Hughes, 201 Fed. 727, 742. Rep. 90, affirming Illinois C. K. 42. Mississippi R. R. Com. v. Co. v. Mississippi R. R. Com., Illinois C. R. Co., 203 U S. 335, 13S Fed. 327, 70 C. C. A. 617. 1,66 State Regulation of Carriees. [§ '^ tory duty so to do/' but when the statute so authorizes, mandamus will lie to compel the construction of a depot." It may be said that the proper governmental authority, whetJier legislative or administrative, the latter being by statute authorized, may regulate the location and require the construction of depots and the maintenance of necessary depot facilities. Such regulation must in all cases be reason- able and must be made upon proper consideration of the rights of both the carriers and the pul)lic. Whether such regulation can be enforced by mandamus or by suits for pen- alties depends upon the terms of the particular regulating statute. The Interstate Commerce Commission has exercised the right to regulate the use of freight terminals,*^ and such regulation is within its statutory power. It would seem that regulations as to the construction, location, operation and main- tenance of depots, being regulations which can best be made by a local tribunal, are at least in the present state of the federal law and in view of non-action by the Interstate Commerce Commission, within the cognizance of state laws and state 43. Northern ?ac. R. Co. v. Washington Territory, 142 U. S. 4&2, 3.5 L. Ed. 1092, 12 Sup. Ct. 283, but see the vigorous dissent of Mr. Justice Urewer concurred in by Justice Field and Harlan. The majority opinion is sustained by a well-reasoned argument quoted from People v. N. Y. L. E. & W. R., 104 N. Y. 58, 9 N. E. 856, although there is authority supporting the dissenting view, Concord & M. R. Co.v. Boston & M. R. Co., 68 N. H. 464, 41 Atl. 263. 44. People v. Delaware & H. Canal Co., 32 N. Y. App. Div. 120, 52 N. Y. Supp. 850, affirmed in 165 N. Y. 362. 59 N. E. 138; Central of Georgia Ry. Co. v. State, 104 Ga. 831, 31 S. E. 531; Railroad Commissioners of South Carolina v. Columbia & G. R. Co., 26 S. C. 353 2 S. E. 127; Northern Pao. R. Co. v. Territory (Wash. T.), 13 Pac. 604; McCoy v. Cin- cinnati I. St. L. & C. R. Co., 13 Fed. 3; State v. Republican Val. R. Co. (Neb.), 26 N. W. 205 and 24 N. W. 329. The right of a commission to locate a station dees not authorize a requirement that separate freight and passen- ger depots be maintained. State V. Yazoo Valley R. Co., 87 Miss. 679, 40 So. 2G?. 45. Federal Sugar Refining Co. V. Baltimore & O. R. Co., 17 I. C. C. 40, 47. 20 I. C. C. 200; Cattle Raisers' Asso. v. C. B. & Q. K. R. Co., 11 I. C. C. 277; R. R. Com. of Ky. v. L. & N. R. R. Co., 192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. 339. In United States v. B. & O. R. Co., 231 U. S. 274, 58 L. Ed. 218, 34 Sup. Ct. 75, the order of the Com- mission was set aside but the right to regulate conceded. § 10] Engaged in Interstate Commerce. 167 cnminissions/" Such regulation does not burcien or impede, l)nt aids and facilitates intercourse and traffic " It -is not an unconstitutional interference with interstate commerce for a State statute to prohibit any change in loca- tion of shops, roundhouses and general offices of a railway company which had located and agreed to maintain them for a valuable consideration/' Taider these principles, a railroad may be compelled to in- stall a teb'phone in a depot to facilitate its business^" but not for general commercial purposes.^" The business of a railroad is transportation, and it cannot be compelled to provide scales at local stations for the con- venience of stock shippers." § 10, Regulation of Facilities — Terminal Roads. — Short lines of railroad engaged as common carriers in the business of transporting freight between the termini of other common 46. Cases illustrating the exer- cise of the power by state au- thority are: Atty. Gen. of Mass. V. Eastern R. Co.. 137 Mass. 45; Board of R. R. Com'rs of Kansas V. Missouri P. R. Co., 71 Kan. 193, 80 Pac. r>3; Corporation Commission of N C. v. Seaboard A. L. Ry., 161 N. C. 270, 76 S. E. 554; St. Louis I. M. & S. Ry. Co. V. State, 31 Okla. 509, 122 Pac. 217; Horton v. So. Ry. Co., 173 Ala. 231, 55 So. 531; College Arms Hotel Co. v. Atlantic C. L. R. Co., 61 Fla. 553, 54 So. 459; St. Louis S. W. Ry. Co. v. State, 97 Ark. 473, 134 S. W. 970; State V. Ogden Rapid Transit Co., 38 Utah 242, 112 Pac. 120; Pecos & N. T. Ry. Co. V. Railroad Cora, of Texas, 56 Tex. C. A. 422, 120 S. W. 1055; R. R. Com. of Tex. v. Chicago, R. I. & G. Ry. Co., 114 S. W. 192, reversed 102 Tex. 393. 117 S. W. 794; Louisiana R. & IL Co. V. R. R. Com. of La.. 121 La. 849, 49 So. 884. 47. Morris-Scarboro-MofRtt Co. V. Southern Express Co., 146 N. C, 167, 59 S. E. 667; Pittsburg C. C. & St. L. R. Co. V. Hunt, 171 Ind. 189, 86 N. E. 328. 48. International & G. N. R. Co. V Anderson Co., 246 U. S. 424, 62 L. Ed. 807, 38 Sup. Ct. 370. But "the court will never order a rail- road station to be built or main- tained contrary to the public inter- est"; Northern Pacific R. Co. v. Washington, 142 U. S. 492, 35 L. Ed. 1092, 12 Sup. Ct. 293 and see Armour & Co. v. Texas & Pacific Ry. Co. 258 Fed. 185, — C. C. A. — . 49. Atchison T. & S. F. Ry. Co. V. State, 23 Okla. 210, 100 Pac. 11. 50. Atchison T. & S. F. Ry. Co, V. State, 23 Okla. 231, 100 Pac. 16. See as to right to require rates to be posted, Johnson v. Seaboard A. L. Ry., 78 S. C. 361, 52 S. B. 644. 51. New Mex. Wool Growers' Asso. V. A. T. & S. F. R. Co., N. M., 145 Pac. 1077; G. N. R. Co.v. 168 State Regulation of Carriers. [§ 10 carriers and industries not directly on the lines of the princi- pal carriers are designated as terminal railroads. Generally this terminal railroad is located in only one state and is a state corporation. It delivers freight which may be brought to it by other carriers or delivers freight from industries to other carriers, such freight being destined from o.r to points both within and without the state in which the terminal rail- road is located. In a federal case decided in 1887 it was held that a "switch- ing" service was local and might be regulated by a state com- mission." but it cannot now be doubted that, where a deliv- ery service by a terminal road relates to freight which moves in interstate commerce, as to such transportation the carrier is not legally subject to any regulation by state authority. The Interstate Commerce Commission has regulated rates of terminal charges, holding that, "A state statute fixing termi- nal charges is not controlling with respect to interstate trans- portation." ^" Discrimination by a terminal company was prohibited."" Through routes and joint rates with terminal roads have been ordered.""" That such roads, as to interstate transportation of which the terminal haul is a part, are with- in the Act to Regulate Commerce has been recognized and established by the Supreme Court of the United States/" In the Southern Pacific Terminal case," Mr. Justice McKenna (piotes approvingly language of the Commission aptly express- Minnesota, 238 J. S. 340, 59 L. Ed. and see Peale v. Cent R. Co. 1337, 35 Sup. Ct. 753. of N. J., 18 I. C. C. 25, and cases 52. Chicago M. & St. P. Ry. Co. cited, at p 33. V. Becker, 32 Fed. 849; the rate 56. Int. Com. Com. v. Chicago B. prescribed by the State Com- & Q. R. Co., 186 U. S. 320, 46 L. mission was enjoined as being too Ed. 1182, 22 Sup. Ct. 824; So. Ry. low, same case 35 Fed. 883. Co. v. St. L. Hay & G. Co., 214 U. 53. Wilson Produce Co. v. Pen- S. 297, 53 L. Ed. 1004, 29 Sup. Ct. na. R. Co., 14 I. C. C. 170. 678; Int. Com. Com. v. Stickney, 54. Eichenberg v. So. Pac. Co., 215 U. S. 98, 54 i.. Ed. 112, 30 Sup. 14 I. C. C. 250; order approved, Ct. 66; United States v. Union So. Pac. Terminal Co. v. Int. Com. Stock Yards & Transit Co., 226 U. Com., 219 U. S. 498, 55 L. Ed. S. 286, 57 L. Ed. 226, 33 Sup. Ct. 810, 31 Sup. Ct. 279. 83. Railroad Com. of Ga. v. L. & 55. Mfgrs. Ry. Co. v. St. Louis N. R. Co., 148 Ga. 442, 445. I. M. & S. Ry. Co., 21 I. C. C. 304; 57. Note 54, :mpra. § 11] Engaged in Interstate Commerce. 169 ing the rule. He there quoted: "The Terminal Company is part and parcel of the system engaged in the transportation of commerce, and to the extent that such commerce is inter- state the Commission has jurisdiction to supervise and con- trol it within statutory limits. To hold otherwise would in effect permit carriers generally, through the organization of separate corporations, to exempt all of their terminals from our regulating authority." Terminal roads, therefore, as to all questions of rates and regulations, are subject to the jurisdiction of the state or the federal government in the same way as other common carri- ers. When the regulation relates to intrastate transportation and does not affect interstate commerce, a state commission may act. otherwise the Interstate Commerce Commission alone has power to prescribe rates, rules and regulations. § 11. State Laws Forbidding the Consolidation of Compet- ing' Carriers. — A constitutional provision of the state of Ken- tucky prohibiting the consolidation of stocks, franchises or property, as well as the purchase and lease, of parallel or competing lines of railroad does not so interfere with inter- state commerce as to be invalid. The "instruments of com- merce" may be regulated by the states. In sustaining the foregoing law of Kentucky. Mr. Justice Brown, announcing the opinion of the Supreme Court, said :" "The power to construct them (railroads) involves necessa- rily the power to impose such regulations upon their opera- tion as a sound regard for the interests of the public may seem to render desirable. In the division of authority with respect to interstate railways Congress reserved to itself the superior right to control their commerce and forbid interfer- ence therewith ; while to the states remains the power to create and to regulate the instruments of such commerce, so far as necessary to the conservation of the public interests. 58. Louisville & N. R. Co. v. v. Great Northern R. Co., 161 L'. Kentucky, 161 U. S. 677, 40 L. Ed. S. 646, 40 L. Ed. 838, 16 Sup. Ct. 849, 16 Sup. Ct. 714. Explained, 705. Simpson, et a!., R. R. Com. Northern Securities Co. v. Unitefi of Minnesota v. Shepard, 230 U. S. States, 193 U. S. 197, 348, 48 L. Ed. 352, 432, 433, 57 L. Ed. 1511, 33 679, 705, 24 Sup. Ct. 436, Pearsall Sup. Ct. 729. 170 State Regulation of Carriers. [§ 12 "If it bo assumed that the states have no riglit 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 con- solidation in defiance of state legislation — a proposition which needs onlj^ to be stated to demonstrate its unsoundness." The concluding language of Mr. Justice Brown has a signi- ficant application to the provisions of section 407 of the Transportation Act 1920, which section amends section 5 of the Interstate Commerce Act. The paragraphs added by the amendment authorize the consolidation of the properties of two or more railroads. Practically all the railroads subject to these enactments were incorporated under State laws, they are creatures of the States ; but are instrumentalities of inter- state commerce. The constitutionality of this provision of the amendment is discussed Section 63a, post. § 12. Regulation of Facilities — Spur Tracks. — Where an order of a state tribunal affects onl}^ intrastate commerce, the question of whether or not it was arbitrary and anreasonable is for the state courts, and it is proper to require a carrier to furnish facilities for making the necessary connections for passenger travel ; even if, in doing so, that service must be furnished at a loss."" A state statute authorizing a state commission to require a railroad to permit the erection of an elevator upon its road bed was held by the Supreme Court of the United States to be in- valid;"" and the same court held void a law compelling all railroads upon application and when a specified elevator ca- pacity exists, to "erect, equip and maintain a side track or switch of suitable length to approach as near as four feet of the outer edge of their right of way when necessary, and in all cases to approach as near as necessary to approach an elevator that may be erected by the applicant or applicants adjacent to their right of way for the purpose of loading 59. Atlantic C L. R. Co. v. N. C. 1, 49 S. E. 191, 11.5 Am. St. North Carolina Corp. Com., 206 U. Rep. 636. ». 1, 51 L. Ed. 933, 27 Sup. Ct. 60. Missouri Pac. Ry. Co. v. :;e- 585, affirming North Carolina Cor j. braska, 164 U. S. 403, 41 L. Ed. Com. V. Atlantic C. L. R. Co., 137 489, 17 Sup. Ct. 130. § 12] Engaged in Intei^state Commerce. 17.1 grain into ears from said elevator, and for handling and shipping grain to all persons or associations so erecting or operating such elevators, or handling and shi])ping -grain, v^-ithont favoritism or discrimination in any respect what- ever." One of the contentions made in the argument against the validity of this law was that it conflicted with the com- merce clause of the Constitution of the United States. This contention was not determined, as the law M'as held invalid because it failed to provide indemnity to the carrier." A regulation requiring a carrier to deliver cars beyond its tracks to a private switch is illegal."' In McNeill v. Southern Ry. Co. cited note, supra, the North Carolina Corporation Commission 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 comp- any. The order was held invalid as "amounti.vig to an unlaw- ful interference with interstate commerce." That a spur track ordered by a state commission may be for the present benefit of only one industry, does not make the con- demnation of property necessary for the conf^truction of the spur track the taking of property for a private purpose."'' A state has no power to compel a carrier to switch cars from a connection with a competing road to a designated side track within its own terminals for the purpose of being laden with freight for immediate transportation." If the transportation is intrastate, different carriers may be compelled by state au- thority to interchange freight."^ The Supreme Court has not always given consideration to the fact that spur tracks serve both interstate commerce and 61. Missouri Pac. Ry. Co. v. Nc- 58 L. Ed. 924, 34 Sup. Ct. 522. braska, 217 U. S. 196, 54 L. Ed. 727, Judge Gilbert of the Supreme 30 Sup. Ct. 461. Court of Georgia cites and follows 62. Central Stock Yards Co. v. the text. Railroad Com. of Ga. v. Louisville & N. R. Co., 118 Fed. L. & N. R. Co. 148 Ga. 442, 445. 113, 55 C. C. A. 63, 63 L. R. A. 213; 64. 111. C. R. Co. v. Railroad McNeill V. So. Ry. Co., 202 U. S. Com. of La., 236 U. S. 157, 59 L. 543, 50 L. Ed. 1142, 26 Sup. Ct. Ed. 517, 35 Sup. Ct. 275. 722. 65. Mich. C. R. Co. v. Mich. R. 63. Union Lime Co. v. Chicago Com., 236 U. S. C15, 59 L. Ed. 750, & N. W. Ry. Co., 233 U. S. 211, 35 SuD. Ct. 423. 172 State Regulation of Carriers. [§ 12 intrastate commerce. The same statement applies to the cases relating to pliysical connections discnssed in the succeeding sections. The principle applied in cases like the McNeill Case, supra, seems to be overlooked in other cases. The Congress has regulated spur tracks and the interstate Commerce Commission has frequently entered orders author- ized by such regulations."" The field having been occupied by Congress, it would seem under well established rules, that the power of the states to regulate such tracks presently or intended to be used to serve interstate shipments, was ex- cluded. The decisions of the Supreme Court do not in terms deny the existence or the application of the principle, they do in some cases ignore the principle. That Court properly holds that an enforced discharge by a common carrier of its duty to provide reasonably adequate extensions of a sidetrack leading to an adjacent manufacturing plant is not in viola- tion of the Fourteenth Amendment to the Constitution, but the Court there ignored, if the question was raised, the really important issue of the competency of a State Commission to enforce such duty. It is practically universally true that such tracks must serve interstate commerce" In holding that the Georgia Commission was authorized to require a con- necting track between two railroads, no reference was made to the issue of interference with interstate commerce, whieft, as the present writer, who was of counsel, knows, was dis- tinctly raised by the testimony and which was the substantial question presented on brief and in oral argument."* The Supreme Court of Virginia holds that although a side or spur track may be used for interstate commerce, as well as for intrastate commerce, the Corporation commission of that State has iurisdiction to compel its construction.'"'^ This decision is in accord with judgments of the Supreme Court of the Ignited States, but the Supreme Court has never defi- 66. Louisville Board of Trade 68. Seaboard A. L. R. Co. v. V. L. & N. R. Co., 40 L C. C. 679 R. R. Com. of Ga. 240 U. S. 324, 60 and cases cited pp. 688, 689. L. Ed. 669, 36 Sup. Ct. 260. 67. Chicago St. N. W. R. Co. v. 69. Washington & 0. D. R. Co. v. Ochs, — U. S. — , 63 L. Ed. — , 39 Royster Guano Co., 122 Va. 397. Sup. Ct. — . 94 S. E. 763. § 13] Engagep in Interstate Commerck. 173 nitely stated the principle and has in some of the cases cited above fipplied an opposing principle. A donble track may be reqnired where the facts so justify/" It may be accepted as . law under the authorities as they now stand that where there is a "full hearing" and a reasonable justification for the order, a State Commission has jurisdiction to compel a common carrier to construct and maintain a spur track to a private plant, when such track furnishes additional trackage for a public use, even though interstate commerce as well as intrastate commerce is served thereby. This statement, although supported by the highest authority is of doubtful soundness as thereby states are given concurrent jurisdiction over matters constitutionally committed by the Congress to the Interstate Commerce Com- mission, and over which that Commission has frequently exercised jurisdiction.'^ The Transportation Act 1920 enlarges the powers of the connnission, giving it authority to require the joint use of terminals.'" With these enlarged powers the Supreme Court may apply correct principles and hold that the states may no longer regulate terminals, spurs, tracks and connec- tions. The decision of the Circuit Court of Appeals for the Eighth Circuit that an interplant switching service may be performed by an interstate carrier for a consideration of the lease of land'" seems contrary to a sound rule of law and policy.^* The Supreme Court in Penn. R. Co. v. Public Serv. Com. of Penn., — U. S. — 64 L. Ed. — 40 Sup. Ct. — . correctly says that "States no more can supplement its (Federal) requirements than they can annul them." § 13. Requiring Physical Connections between Carriers. — In the Jacobson case/^ under authority of a law of ]\Iinne- 70. Phoenix Ry. Co. v. Geary, 74. poi^t Sec. 182. Louisville & 239 U. S. 277, 60 L. Ed. 287, 36 Sup. N. R. Co. v. Mqttley, 219 U.- S. Ct. 45. 467, 55 L. Ed. 297, 31 Sup. Ct. 265, 71. See notes G6 and 67, sxipra. 34 L. R. A. (N. S.) 671, Chicago 72. Sec. 344f Post. I. & L. R. Co. v. U. S. 219 U. S. 73. Am. Smelting & Ref. Co. v. 486, 55 L. Ed. 305, 31 Sup. Ct. 272, Union Pac. R. Co. — C. C. A. — , affirming 163 Fed. 114. 256 Fed. 737. 75. Wisconsin M. & P. R. Co. v. 174 State Regulation of Carriers. [§ 13 sota, the State Railroad Commission ordered a connection between two common carriers of the state, and this order tlie courts enforced. 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. Tn the brief the contention was made that the law upon which the proceedings were had was "an ill-disguised attempt to control and regulate interstate traffic." The court did not construe the order as directly afit'ecting interstate commerce and overruled the other contentions of the plain- tiff 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 substantially or unreasonably detrimental to the ultimate interests of the corporation itself. "Although to carry out the judgment may require the exercise by the plaintiff in error of the power of eminent domain, and will also result in some, comparatively speaking, small expense, yet neither fact furnishes an answer to the application of defendant in error." The Jaeobson case differs from the McNeill case. Sec. 12, supra, in that in the McNeill case there was an order to con- nect with a private plant, while in the Jaeobson case two state common carriers were directed to make a physical connec- tion. In the Jaeobson ease, the Supreme Court said arguendo that the order for the connection there did not affect inter- state commerce, and Mr. Justice Peckham, for the court, said : "But the Supreme Court of the state, in the opinion de- livered therein said that there was ample evidence in the case of a necessity for such track connection resulting from the benefit which would accrue to exclusively state commerce, when considered alone, to justify the ordering of the connec- liwn in question." In the Jaeobson case the regulation only incidentally affected interstate commerce ; in the McNeill case the regu- lation had direct reference to interstate commerce. In dis- cussing the IMcNeill case. Mr. Justice White said : Jaeobson, 179 U. S. 287, 45 L. Ed. 194. 21 Sup. Ct. 115. <§ 13] Engaged, in Interstate Commerce, 175 "The cars of coal not having been delivered to the con- signee, but remaining on the tracks of the railway company in the condition in which they had been originally brought into North Carolina from points outside of that state, it follows that the interstate transportation of the property had not been couipleted when the corporation commission made the order complained of." These facts clearly differentiate the two cases, and make the respective opinions harmonious. The more recent case of the Larabee Mills'" is interesting and instructive. In that case the Supreme Court of Kansas compelled, by mandamus, the Missouri Pacific Railway Com- pany to deliver cars from another road over existing transfer tracks to the mill of the Larabee Mills, that the mill might be enabled to ship out its manufactured product, three-fifths of which went to points outside the state of Kansas. It ap- peared 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 Mc- Neill case the delivery of loaded cars was sought over a pri- vate track to a coal yard; who built the track is not disclosed. In the Larabee Mills case the delivery of empty cars was sought over a track, the ownership of which is not disclosed, 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, although it must have been true that at times the spur track was used in intrastate transportation; in the Larabee Mills case there was both interstate and intra- state transportation 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 McNeill case. In the Larabee Mills case it was contended by the railroad "that no duty w^as imposed on the railroad company by act of the legislature or mandate of commission or other administrative board," To this argument ]\Ir. Justice Brewer answered : 76. Missouri Pac. R. Co. v. Lara- 53 L. Ed. 352, 29 Sup. Ct. 214. bee Flour Mills Co., 211 U. S. 612, 1/G StATK Rl-KiULATION OK CARRIERS. [*^ 13 "No legislative enactment, no special mandate from any commission 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 legis- lative action or special mandate, can be enforced by the courts. * * * AH these questions are disposed, of by one well-established proposition, and that is, that a party engaging in the business of a common carrier is bound to treat all ship- pers alike and can be compelled to do so by mandamus or other proper writ." What, then, the Supreme Court of Kansas did was to en- force the common-law dutj^ 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 interstate commerce might be affected. This prin- ciple ifr. Justice Brewer states : "This case does not rest upon any distinction between inter- state commerce and that wholly within the state. It is the contention of counsel for the mill company that it comes within the oft-rejieated rule that the state, in the absence of express action by Congress, may regulate many matters which indirectly aflfect interstate commerce, but which are for the comfort and convenience of its citizens. Of the existence of such a rule there can be no question. It is settled and il- lustrated in many cases. * * * Tlie mere grant by Con- gress 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 interstate commerce beyond the right of way of the cari-ier and to a private siding — an order which affected the movement of the cars prior to the completion of the § 13] Kngaokii in Interstate Commerce. 177 transportation, while here is presented, as hereinbefore in- dicated, 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 ab- sence of congressional action, compel a carrier to discharge." Mr. Justice Moody dissented, placing his dissent on the McNeill case, between which and the instant case he saw no legal distinction. These cases Avere determined prior to the passage of the Hepburn Act,"' which act extended the power of the Inter- state Commerce Commission. Since the passage of that act, the Supreme Court has held void a state regulation recpuring a physical connection be- tween common carriers of the state of Washington.'* In this, the Fairehild ease, the order to make the connection was held void, the reason for so holding being stated by Mr. Justice Lamar as follows : "There is nothing by which to compare the advantage to the public with the expense to the defendant and nothing to show that within the meaning of the law there is such public necessity as to justify an order taking property from the company." The effect of the order on interstate commerce was not discussed, nor was that question raised, it seemingly being assumed that the order related to intrastate commerce. It appears from the authorities and in view of the enlarged powers of the federal commission under the Acts of 1906 and 1910. that a physical connection could not be ordered by authority of the states when the purpose of the connection was wholly or partly to accommodate interstate commerce."' 77. Act June 29, 1906, 34 Stat. Yard & Transit Co., 226 U. S. 286, L. 584, c. 3591, U. S. Comp. St. 57 L. Ed. 226, 33 Sup. Ct. 83; Supp. 1907, p. 892, Fed. Stat. Ann. New York C. «i H. R. Co. v. Supp. 1907, p. 168, Sees. 338, 400. Hudson County, 227 U. S. 248, 57 78. Oregon R. & Nav. Co. v. L. Ed. 499, 33 Sup. Ct. 269; Sea- Pairchild, 224 U. S. 510, 56 L. Ed. board A. L. Ry. Co. v. R. R. Com. 863, a2 Sup. Ct. 5?5. of Georgia, 206 Fed. 181; see also 79. So. Ry. Co. v. Reid, 222 U. Atlantic S. R. &. G. Ry. Co. v. S. 424, 56 L. Ed. 257, 32 Sup. Ct. State. 42 Fla. 358. 29 So. 319, 89 140; United States v. Union Stock Am. St. Rep. 233. At common law 178 State Regulation of Carriers. [§ 1-t It has, however, been held, and npon what appears to be sound reasoning based npon authority, that such connections may be required when made to accommodate intrastate com- mei'ce, the requirement being one for a facility for trans- portation and in no way burdening interstate commerce/" The use of terminal facilities could not prior to Transportation Act 1920 be taken from one carrier for the benefit of another."*' This does not mean that one road could not in a proper case be required to switch the cars of another and connecting carrier.*' Transportation Act 1920 authorizes the Commission to re- quire that terminals be opened to a joint use.*^ § 11. Delivery over Connecting Tracks. — Railroads are or- ganized for a public ])urpose and to serve primarily the public individuals could not force the right to connect private tracks, People V. Chicago & N. W. Ry.. 57 111. 436; State v. Willmar & S. F. Ry. Co., 88 Minn. 448, 93 N. W. 112. No objection that connection is with main line. Morris Draying Co. V. Greenville & H. Ry. Co., G2 N. J. Eq. 768, 48 Atl. 568, affirming 59 N. J. Eq. 372, 46 Atl. 638. Law may apply to contiguous roads which do not cross. New York L. & W. Ry. Co. V. Erie R. Co., 31 App. Dlv. 378, 52 N. Y. Supp. 318. appeal dismissed 157 N. Y. 674, 51 N. E. 1092; Gallagher v. Keating, 28 Misc. Rep. 131, 58 N. Y. Supp. 366. Statute authorizing plant tracks to connect valid, Reeser v. Philadelphia & R. Ry. Co., 215 Pa. 136, 64 Atl. 376. May require con- nections though roads do not cross at grade, International & G. N. R. Co. V. R. R. Com. of Texas, 99 Tex. 332, 89 S. Y/. 961, affirming 86 S. W. 16, — Tex. Civ. App. — ; Jacob- son V. Wisconsin, M. & P. R. Co., 71 Minn. 519, 74 X. W. 893, 40 L. R. A. 389, 70 Am. St. Rep. 358. A rail- road company is not compelled to switch freight which was not con- signed over its lines from the line of one railroad to that of another in the same city, Texas & N. O. Ry. Co. V. Gulf & I Ry. Co. of Texas, 54 S. W. 1031, affirmed. Gulf & I. Ry. Co. V. Texas & N. 0. Ry. Co., 56 S. W. 328, 93 Tex. 482. 80. Pittsburg, C C. & St. L. Ry. Co. V. Hunt, 171 Ind. 189, 86 N. E. 328; State v. Florida E. C. Ry. Co., 58 Fla. 524. 50 So. 425; Chi- cago, I. & L. Ry. Co. V. R. R. Com. of Indiana, 175 Ind. 630, 95 N. E. 364. 81. Louisville f. N. R. Co. v. Cen- tral Stock Yards, 212 U. S. 132, 53 L. Ed. 441, 29 Sup. Ct. 246, re- versing same styled case, 133 Ky. 148, 97 S. W. 77S; Commonwealth V. Norfolk & W. Ry. Co., Ill Va. 59, 68 S. E. 351. 82. Penna. Co. v. U. S. 266 IT. S. 3.51, 59 L. Ed. 616, 35 Sup. Ct. 370. 83. Note 72, supra: see also Sec. 12 suirra. § 14] Engaged in Interstate Commerce. 179 good and convenience. The Interstate Commerce Commission has power to require physical connections between interstate carriers, and like power exists in the states so far as the requirements of intrastate commerce may reasonably demand. That these connections may serve the public demands and needs, it is necessary that they be used. How far then may a carrier be compelled to receive and deliver cars over these connections when established? There is a commerce which is intrastate and a commerce which is interstate. Each may be served by these connections, and both state and federal authorities may act for the purpose of requiring adequate service for the transportation within their respective jurisdictions. Neither the state government nor the federal government may require the establishment of facilities for transportation which are not within its proper sphere. This situation makes carriers subject to independent regulation from separate tribunals and it sometimes is a dif- ficult question to determine which tribunal may require a particular facility, the facility required by either being usually for the benefit of the commerce of both. While this duplication of control over carriers is frequently burdensome, until Congress acts, the courts must adjust the conflicting regulations as best they may. Applying these principles it can not be doubted that the states may, in proper cases, require carriers of intrastate commerce to receive and deliver cars from and to other carriers over the connections. This service must be necessary and must be reasonably com- pensated for, and provision must exist for the protection of the carrier in its compensation and for the return of its 84 cars. 84. Central Stock Yards v. Lou- 133 Ky. 148, 97 N. W. 778; So. isville & N. R. Co., 192 U. S. 568, Ry. Co. v. St. Louis Hay & Grain 48 L. Ed. 565, 24 Sup. Ct. 339, af- Co., 214 U. S. 297, 53 L. Ed. firming Central Stock Yards Co. 1004, 29 Sup. Ct. 678, reversing V. Louisville & N. R. Co.. 118 So. Ry. Co. v. St. Louis Hay & Fed. 113, 55 C. C. A. 63, 63 L. R. Grain Co., 153 Fed. 728, 82 C. C. A. 213; Louisville & N. R. Co. v. A. 614. Indemnity may be re- Central Stock Yards Co., 212 U. quired of an irresponsible carrier, S. 132, 53 L. Ed. 441, 29 Sup. Ct. Enterprise Transportation Co. v. 246, reversing Louisville & N. R. Pennsylvania R. Co. 12 I. C. C. Co. V. Central Stock Yards Co., 326; Wisconsin, M. & P. R. Co. 180 State Regulation of Carrieks. [§ 14 That a carrier may be compelled to transport freight over the connection between the terminus of another line to a team track or other siding on its own line, was determined by the Supreme Conrt in Grand Trunk Kailway Co. v. Mich- igan Railroad Commission/" In this case discrimination was alleged before the Commission, which made an order re- quiring that the discrimination be removed and that a new tai'iff 1)6 filed and made effective granting "like charges for the movement of a carload shipment received from an in- dustry in the city of Detroit, upon said Grand Trunk Western Railway, consigned for delivery upon a team track or other siding of said road, within the same city, and for a like shipment received by said Grand Trunk Western Railway from a connecting carrier at a junction point within the corporate limits of the city of Detroit, consigned to a team track or other siding upon said road within the same city." The carrier filed a tariff which the Commission suspended and an injunction was sought. The question arising in the suit was 'stated by the Supreme Court as follows: "The question in the case is whether, under the statutes of the state of Michigan, appellants can be compelled to use the tracks it owns and operates in the city of Detroit for the interchange of intrastate traffic ; or, stating the question more specifically, whether the companies shall receive cars from another carrier at a junction point or physical connec- V. Jacobson, 179 U. S. 287, 45 L. Co. v. R. R. Com. of Washington, Ed. 194, 21 Sup. Ct. 115, affirming 52 Wash. 17, 100 Pac. 179. Jacobson v. Wisconsin, M. & P. 85. Grand Trunk Ry. Co. v. R. Co., 71 Minn. 519, 74 N. W. Michigan R. Com. 231 U. S. 451, 893, 40 L. R. A. 389, 70 Am. St. 58 L. Ed. 310, 34 Sup. Ct. 152. Rep. 358; Minneapolis & St. L. affirming same styled case, 198 R. Co. V. Minnesota, 186 U. S. Fed. 1009. To same effect see 257, 46 L. Ed. 1151, 22 Sup. Ct. Chicago, I. & L. Ry. Co. v. R. 900, affirming State v. Minneapo- R. Com. of Indiana, 175 Ind. 630. lis & St. L. R. Co., 80 Minn. 191, 95 N. E. 364; Thompson v. Mis- 82. N. W. 60, 89 Am. St.. Rep. 514; souri, K. & T. Ry. Co., 105 Tex. Oregon R. & Nav. Co. v. Fair- 372, 126 S. W. 257, on rehearing child, 224 U. S. 510, 56 L. Ed. 128 S. W. 109, 2 Ann. Rep. Ind. 863, 32 Sup. Ct. 535, reversing Pub. Ser. Com. 107 et seq.. Sea- State ex rel. Oregon R. & N. board A. L. Ry. Co. v. R. R. Com. of Ga.. 206 Fed. 181, 213 Fed. 27. § 14] Engaged, in Interstate Commerce. 181 tion Avitli such earrier within the corporate limits of Detroit for transportation to the team tracks of the companies; and whether the companies shall allow the use of their team tracks for cars to be hanled from their team tracks to a junction point or physical connection with another carrier within such limits and be required to haul such cars in either of the above-named movements or between industrial sidings." The question thus stated was resolved in favor of the validity of the order of the state commission, although throughout the opinion emphasis is laid upon the fact of "the exceptional situation of Detroit" where the service required by the order covered an area of twenty-two miles. To the contention that the last order suspending the tariff, which was the order involved, interfered with interstate commerce, the court said, "the contention is premature, it not without foundation." The question as stated related to intrastate commerce, and the answer must be similarly limited. The Jacobson case, cited note snpra, was relied on, and the second of the Stock Yards cases, cited note supra, was dis- tinguished. Had the order of the Michigan Commission re- quired the transportation or delivery of commodities moving to or from another state, it would have been a direct at- tempt to regulate interstate commerce, and void under the decisions in the cases of McNeill v. Southern Ry. Co.^" and 111. C. R. Co. V. Railroad Commission of Louisiana. The Michigan case referred to a transportation service to be performed by the carrier for a fixed compensation and (U/es not answer the qufere in the Riverside Mills case" as to whether or not "a carrier can be compelled to accept goods for transportation beyond its own lines or be required to make a through or joint rate over independent lines." The Supreme Court of 86. McNeill v. So. Ry., 202 U. La. 236 U. S. 1.57, .59 L. Ed. 517, S. 543, 50 L. Ed. 1142, 26 Sup. ^5 Sup Ct. 275. Ct. 722, modifying So. Ry. Co. v. 87. Atlantic C. L. R. Co. v. Riv- Greensboro Ice & Coal Co., 134 ^^^*^^ ^""^- 219 U. S. 186, 55 L. Fed. 82. See Sec. 13 supra, 111. ^d. 167. 31 Su;,. Ct. 164, 31 L. Cent. R. Co. v. Railroad Com. or ^- ^- <^- ^"^ '^' affirming Riv- erside Mills V. Atlantic C. L. R. Co., 168 Fed. 987. 182 State Regulation oe Caeeiers. [^ 15 Georgia has answered the question negatively/^ the Judge delivering tlie ()j)inion using this language: "A corporation may voluntarily make a contract of this sort, but there is no law that we know of which compels it to make one against its wishes. And, speaking for myself, J doubt very much the power of the legislature to enact a law compelling a railroad to make a contract for a through bill of lading beyond its terminus." Under the Act to Regulate Commerce (sees. 338 and 400. post), the Interstate Commerce Commission is given the power, which is frequently exercised, to require connecting carriers to establish through routes and .joint rates, and there appears no reason why a state should not, as to intra- state commerce in a proper case, compel carriers to inter- change freight. § 15. Regulating Crossings. — The state may regulate pub- lie railroad crossings. The police powers of^ the state are sut!icient to enable them to protect the public from danger at places where railroads cross public streets and roads and where one railroad crosses another. Such regulation, al- though atfeeting interstate railroads, falls within the class of legislation "which," as w^as said by Chief Justice Marshall, "can be most advantageously exercised by the states them- selves."^" Congress has not attempted to legislate on the subject, and that state legislation "relating to railway cross- ings" is valid has been determined so frequently as to make extensive citation of authorities unnecessary."" 88. Coles V. Central R. & B. Co., 89. Gibbons v. Ogden, 9 Wheat. 86 Ga. 251, 12 S. E. 749; State 22 U. S. 1, 6 L. Ed. 23. V. Wrightsville & Ten. R. Co., 90. New York & N. E. R. v. Bris- 104 Ga. 437, 30 3. E. 891; Wadley tol, 151 U. S. 556, 38 L. Ed. 269, So. Ry. Co. V. State, 137 Ga. 497, 14 Sup. Ct. 437, extension of ,3 S. E. 741. To the same effect, grade crossings; Chicago, B. & see Lotsfreich v. Central R. & Q. R. Co. v. Nebraska, 170 U. S. B. Co., 73 Ala. 306; Gulf, C. & 57, 42 L. Ed. 948, 18 Sup. Ct. S. F. Ry. Co. V. State. 56 Tex. 513, viaduct over a street; Grand Civ. App. 353, 120 S. W. 1028; Trunk Ry. Co. v. R. R. Com. of Home Tel. Co. v. Granby & Indiana, 221 U. S. 400, 55 L. Ed. Neosho Telephone Co., 114 Mo. 786, 31 Sup. Ct. 537. interlocking 1111, 126 S. W. 773. plant at crossing of two rail- § 15] Engaged in Interstate Commerce. 133 Similar to the power of the states to regulate crossings is tlie power to exercise a control over the right of way. A law of Texas prescribing the duty of preventing the growth of particular vegetation was held valid." Regulations requir- ing guard posts on railroad trestles and bridges, and stock gaps at crossings, are within the police power of a state."" A law of the state of Georgia requires railway locomotives running on the main line to be equipped with electric head- lights of a certain prescribed character. Locomotives thus required to be equipped were used in hauling interstate freight, and it was urged that the statute constituted an un- warrantable interference with interstate commerce. The validity of the statute w^as sustained by the Supreme Court of Georgia."'' and upon a writ of error to the Supreme Court of the United States, the judgment of the state court was af- firmed. The Supreme Court of the United States cited as controlling, the case of New York, N. H. & H, R. Co. v. New York, 165 U, S. 628, 41 L. Ed. 853, 17 Sup. Ct. 418, supra, where a law prescribing regulations concerning the heating of cars was held valid, and stated the principle applicable to be: "In the absence of legislation by Congress, the states roads; Grand Rapids & I. Ry. 61 L. Ed. 302, 37 Sup. Ct. 124. Co. V. Hunt, 38 Ind. App. 657, 78 92. Alabama Great So. R. Co. N. E. 358; St. Louis, I. M. & S. v. Fowler, 104 Ga. 148, 30 S. E. R. Co. V. McNamare, 91 Ark. 243; New York Cent. & H. R. R. 515, 122 S. W. 102, blocking Co. v. New York. 165 U. S. 628, 41 frogs; State v. Louisville & N. R. L. Ed. 853, 17 Sup. Ct. 418, af- Co., 177 Ind. 55;-!, 96 N. E. 340; firming 142 N. Y. 646, 37 N. E. Atlantic C. L. R. Co. v. Goldsboro, 568, holding valid a law relating 232 U. S. 548. 58 L. Ed. 721, 34 to heating trains. See the case Sup. Ct. 364, regulating operation of Chicago M. & St. P. R. Co. v. of cars in streets and affirming Minneapolis, 232 U. S. 430, 58 L. same styled case, 155 N. C. 356, 71 Ed. 671, 34 Sup. Ct. 400; samb S. E. 514. styled case 115 Minn. 460, 133 N. St. Louis I. M. & S. R. Co. v. W. 169, Ann. Cas. 1912D, 1027, Ark., 240 U. S. 518, 60 L. Ed. 776, and cases cited in the opinion of 36 Sup. Ct. 443. the Supreme Court of the United 91. Mo. K. & T. Ry. Co. v. May, States. 194 U. S. 267, 48 L. Ed. 971, 24 93. Atlantic C. L. R. Co. v. Geor- Sup. Ct. 638; Chicago T. H. & S. gia, 135 Ga. 545, 69 S. E. 725, 32 Ry. Co. V. Anderson, 242 U. S. 283, L. R. A. (N. S.) 20. 184 State Recjulatton of Carriers. [§ 161 are not denied the exercise of their power to secure safety in the physical operation of railroad trains within their territory, even though such trains are used in interstate com- merce.'"" Having in mind that Congress has enacted several safety appliance acts,"^ it would seem that there is reason supporting the argument that Congress has already "oc- cupied the field" wherein "safety in the physical operation of railroad trains" is provided. This decision of the Su- preme Court can with difficulty be reconciled with a subse- quent decision of the Court, holding that a law of Indiana requiring hand-holds on freight cars used in interstate com- merce was void.^' §16. Elevator Charges. — Transportation, as defined by the Act to Regulate Commerce, post, Sec. 337, includes all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported. The charges for elevating products as a part of an inter- state transportation of such products is clearly not subject to state regulation, but must be prescribed by the Interstate Com- merce Commission."^ In the Minnesota Rate cases, at pp. 41:?, 414, of the opinion, ]\rr. Justice Hughes cited the Granger cases and the Railroad Commission cases, and in referring to the Munn case,*** said : "The court had before it the statute of Illinois governing the grain warehouses in Chicago. Through these elevators, located Avith the river harbor on the one side and the railway tracks on the other, it was necessary, according to the course of trade, for the product of seven or eight states of the West See as sustaining the comment N. E. 337. Note 112 j)ost. in the text. Notes 94 and 123, post. 97. Int. Com. Com. v. Diffen- 94. Atlantic C. L. R. Co. v. baugh, 222 U. S. 42, 56 L. Ed. 83, Georgia, 234 U. S. 280, 58 L. Ed. 32 Sup. Ct. 22; Union Pac. R. Co. 312, 3.4 Sup. Ct. 829. See note 130. v. Updike Grain Co., 222 U. S. 215, 95. Sec. 330, post, appendices B 56 L. Ed. 171, 32 Sup. Ct. 39. to J. 98. Simpson et al., R. R. Com. of 96. Southern R. Co. v. R. R. Minnesota v. Shepard, 230 U. S. Com. of Ind., 236 U. S. 439, 59 L. 352, 432, 433, 57 L. Ed. 1511, 3S Ed. 661, 35 Sup. Ct. 304; reversing Sup. Ct. 729; Munn v. Illinois, 94 same styled case, 179 Ind. 23, 100 U. S. (4 Otto) 113, 24 L. Ed. 77. § 17] Engaged; in Interstate Commerce. 185 to pass on its way to the states on the Atlantic coast. In addition to the denial of any legislative authority to limit charges it was urged that the act was repugnant to the ex- clusive power of Congress to regulate interstate commerce. The court answered that the business was carried on exclu- sively within the limits of the state of Illinois, that its regula- tion was a thing of domestic concern and that 'certainly, until Congress acts in reference to their interstate relation, the state may exercise all the powers of government over them, even though in so doing it may indirectly operate upon commerce outside its immediate jurisdiction.' In the deci- sion of the railroad cases, above cited, the same opinion was expressed." Congress did act in 1906, and now the states may not regu- late grain and similar elevators save as to elevation not affecting interstate commerce. § 17. Through Routes and Joint Rates.— The statute pro- vides that, as to transportation, within the Act to Regulate Commerce, the interstate Commerce Commission nXay require cai-riers to establish through routes, the Commission having the power to prescribe the rate and determine the divisions."'' A state legislative act under which through routes and joint rates are prescribed, is valid when interstate commerce is not directly affected and when the requirement therefor is reasona])!e."*'' In the absence of a statute, through routing could not be enforced,"" and. as said by Mr. Justice Holmes,'"" 99. Sec. 399, jwst; and a state 101. In Wadley So. Ry. v. commission, as to intrastate com- State, 137 Ga. 497, 507, 73 S. E. merce, may apportion a joint rate, 741, the Supreme Court of Georgia State V. Minneapolis & St. L. R. said: "It is true tliat railroad Co., 80 Minn. 191, 83 N. W. 60, 89 companies can not be required to Am. St. Rep. 514, affirmed Minne- issue through bills of lading, or apolis & St. L. R. Co. v. State of to contract to forward goods be- Minnesota, 186 U. S. 257, 46 L. yond their own lines. Coles v. Ed. 1151, 22 Sup. Ct. 900. Central R. Co., 86 Ga. 251, 12 S. 100. But such a statute affecting E. 749; State v. W. & T. R. Co., interstate transportation is void, 104 Ga. 437, 30 S. E. 891." Lowe V. Seaboard A. L. Ry. Co., 102. Central Stock Yards v. 63 S. C. 248, 41 S. E. 297, 90 Am. Louisville & N. R. Co., 192 U. S. St. Rep. 678. 568, 571, 48 L. Ed. 565, 24 Sup. Ct. 339. 186 State Regulation of Carriers. [^ 18 "the requirement to deliver, transfer and transport freight to any point where there is a physical connection between the tracks of the railroad companies must be taken to refer to cases Avhere the freight is ciestined to some further point by transportation over a connecting line." As to intrastate commerce, a state may prohibit discrimina- tion by a eari'ier against another, and where a joint rate is established it is subject to governmental regulation.'"" This does not mean that a carrier may be compelled to make a ,conlraet to deliver over another road, bat carriers may be compelled to deliver freight to and receive freight from a 104 conneering carrier. States, hoAvever, have nor power to compel a carrier to switch cars between a connection with a comlpeting interstate car- rier and a designated side track within its own terminals, when such movement is for the accommodation of interstate traffic."' § 18. Regulation of the Movement of Trains. Sunday Law. — The legislature of the state of Georgia prohibited the run- aiing 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 was appealed to the Supreme Court. That court sustained the Georgia statute.'"" Mr, Justice Harlan, concluding the opinion, said : 103. Stephens v. Central of Ga. Tex., — Tex. Civ. App. — , 86 S. W. Ry. Co., 138 Ga. 625, 631. 75 S. 16, affirmed same styled case. 99 E. 1041, 42 L. R. A. (N. S.) 541, Tex. 3.?.2, 89 S. W. 961; Inman v. 1913E, Ann. Cas. 609; Wadley St. L. S. W. R. Co., 14 Tex. Civ. Southern Ry. Co. v. State, 137 App. 39, 37 S. W. 37. Ga. 497, 73 S. E. 741. Affirmed: 105. Illinois C. R. Co. v. Rail- Wadley S. R. Co. v. Georgia, 235 road Com. of La., 236 U. S. 157, 59 U. S. 651, 59 L. Ed. 405, 35 Sup. L. Ed. 517, 35 Sup. Ct. 275. Ct. 214. 106. Hennington v. Georgia, 163 104. § 14, supra, Hudson V. R. U. S. 299, 41 L. Ed. 166, 16 Sup. Ct. Co. v. Boston & M R. Co., 45 Misc. 1086; Simpson, et al., R. R. Com. 520, 92 N. Y. Supp. 928, affirmed of Minnesota v. Shepard, 230 U. same styled case, 106 App. Div. 375, S. 352, 432, 433, 57 L. Ed. 1511, 33 94 N. Y. Supp. 545; International Sup. Ct. 729. & G. N. R. Co. V. R. R. Com. of § 19] Engaged ix Interstate Commerce. 187 "The statute of Georgia is not directed against interstate commerce. It establishes a rule of civil conduct ap[)licable alike to all freight trains, domestic as well as interstate. It applies to the transportation of interstate freight the same rule Drecisely that it applies to the transportation of domestic fi'eight. And it places the business of transporting freight in the same category as all other secular business. 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 ]al)(>r incident to their callings, 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 juris- diction, nor strictly a regulation of interstate commerce, but, considered in its own nature, is an ordinary police regulation designed to secure the well being and to promote the general welfare of the people within the state by which it was es- tablished, and therefore not invalid by force alone of the Constitution of the United States." § 19. Same Subject. Requiring the Operation of a Par- ticular Train. — An order of a railroad commission made un- der adequate statutory authority, which requires a railroad company to furnish transportation between two points in the state, and to arrange its schedule to make connections with through interstate trains, is not. when required by puWic convenience, illegal. Nor is such order unreasonable because the operation of the particular train required by the order may entail some pecuniary loss to the carrier.^"' Tlie Railroad Commission of Kansas, after hearing, ordered an interstate railroad to operate a passenger service from a point within the state to the state line, although the railroad had no station at the state line. The Supreme Court of the Ignited States, having found that the order was not arbitrary 107. Atlantic C. L. R. Co. v. involved in this case was not con- North Carolina Corp. Com., 206 U. sidered. This decision affirms S. 1, 51 L. Ed. 9a3, 27 Sup. Ct. 585, North Carolina Corp. Com. v. At- 11 Ann. Cas. 398. The effect on lantic C. L. R. Co., 137 N. C. 1, 49 interstate commerce of the order S. E. 191, 115 Am. St. Rep. 636. 188 State Regulation of Carriers. [^ 19 or unreasonable, discussed and determined the contention made, tliat the order was void because it operated as a direct burden u])on interstate commerce. In support of the con- tention the carrier urged "that the charter of the Interstate Raih'oad Company, the buikler of the branch, provided for a road not only in Kansas l)ut to extend into Texas and Mis- souri, and therefore for an interstate railroad." The court held that the charter of the railroad "did not change the nature and character of our constitutional system and, therefore, did not destroy the power of Kansas over its domestic commerce." and that the order being reason- able was not void; and. in concluding the opinion of the court, Mr. Justice (later Mr. Chief Justice) "White said :'°^ "Even if the performance of the duty of furnishing ade- (jnatn local facilities in some respect affected interstate com- merce, it does not necessarily result that thereby a direct burden on interstate commerce would be imposed." When it was sought to enjoin an order of the New York Public Service Commission, wliich required the carrier to restore certain trains which had been discontinued, the dis- trict judge held, under the facts there of record, that such an order was void. It appeared that, without the trains Avhich had been discontinued, the service accommodated the necessities of the people, and that to operate the additional trains would mean a loss to the carrier. Under the facts the judge aptly said: "What is reasonalj^e and what is reason- ably necessary is not to be determined by the occasional wants and wishes and convenience of a very few people living at points along the line. " '"'' In holding void a statute of AViscon- sin requiring "that every village having two hundred or more inhabitants and a post office, and being within one-eighth of a mile of a railroad, must be given by such railroad the ac- commodation of at least two passenger trains each way each day, if four or more passenger trains are run each way daily." 108. Missouri Pac. Ry. Co. v. 28 Sup. Ct. 121. See also State Kansas, 216 U. S. 262, 283, 284, v. Chicago, M. & St. P. R. Co., 11 54 L. Ed. 472, 30 Sup. Ct. 330, cit- S. D. 282, 77 N. W. 104. ing Atlantic C. L. R. Co. v. Whar- 109. Delaware L. & W. R. Co. v. ton. 207 U. S. 328, 52 L. Ed. 230, Van Santwood, 216 Fed. 252. § 20] Engaged; in Intekstate Commerce. 189 the authorities are cited by the Supreme Court and the prin- ciples established by the authorities given as follows: "(1) It is competent for a state to require adequate local facilities, even to the stoppage of interstate trains or the rearrange- ment of their schedules. (2) Such facilities existing — that is, the local conditions being adequately met — the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with in- terstate commerce. (3) And this, whether the interference be directly by the legislature or by its command through the orders of an administrative body. (4) The fact of local facilities this court may determine, such fact being necessarily involved in the determination of the federal question whether ,an order concerning an interstate train does or does not directly regulate interstate commerce, by imposing an arbi- trary requirement.""" Sub-divisions 1 and 2 above are illogical. Whether or not a requirement that trains shall stop is reasonable is determin- able in part from the extent of existing facilities; but inter- state commerce is interstate commerce regardless of the ade- quacy or inadequacy of local facilities. § 20. Same Subject. Speed of Trains. — In the absence of legislation by Congress, a city ordinance regulating the speed limit of trains within the city limits, is not as to interstate trains unconstitutional. This law was announced by Mr. J'ahtice Brewer (Erb v. Morasch, 177 U. S. 584, 44 L. Ed. 897, 20 Sup. Ct. 819), who said: "A city, when authorized by the legislature, may regulate the speed of railroad trains within the city limits. Kichmond, 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 inter- state commerce, and is within the power of the state until at least Congress shall take action in the matter." 110. Chicago. B. & Q. R. Co. v. Gulf C. & S. P. R. Co. v. Texas, Railroad Com. of Wis., 237 U. S. 246 U. S. 58, 62 L. Ed. 574, 38 Sup. 220, 59 L. Ed. 926, 35 Sup. Ct. 560. Ct. 236. lilO State Regulatiox of Cakrieks. [§ 21 A statute of Nebraska fixing a rate of speed for cattle trains moving between points within the state and providing a sum as liquidated damages for its violation, is valid, the Su- preme Court of the United States having held that the legis- lature had power "to impose a limitation of the time for the transportation of live stock" and "to provide a definite measure of damages," such damages being "difficult to esti- mate or prove." ^" Confusing unreasonableness of the requirement with the fact that there was a regulation of interstate commerce, and not citing tlie case of Erb v. ]\Iorasch, supra, tlie Supreme Court held unconstitutional as a regulation of interstate commerce a statute of Texas applicable to interstate trains which re- quires railway companies to start passenger trains at the point of origin and at local stations on schedule time, with a margin of thirty minutes."' § 21. Same Subject. Requirement That Trains Shall Stop at Particular Stations. — In determining whether or not a state statute 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 reasonabHe. To require 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 particular station three minutes. We have just seen in the preceding section that the limitation of speed w^as held legal. This was because the regulation was neces- 111. Chicago, B. & Q. R. Co. v. Ed. and Seaboard A. L. R. Co. v. Cram, 228 U. S. 70, 84, 57 L. Ed. Blackwell, 244 U. S. 310, 61 L. Ed. 734, 33 Sup. Ct. 437, affirming 1160, 37 Sup. Ct. 640, L. R. A. Cram v. Chicago, B. & Q. R. Co., 1917P, 1184; Chicago, B. & Q. R. 84 Neb. 607, 122 N. W. 31, 26 L. Co. v. Railroad Com. of Wis.. 237 R. A. (N. S.) l(rz-^, 85 Neb. 586, U. S. 220, 59 L. Ed. 926, 35 Sup. 123 N. W. 1045, 26 L. R. A. (N. Ct. 560, P. U. R. 1915C 309; Le- S.) 1028, 19 Ann. Cas. 170; Chi- high, Covington & C. St. R. Co. v. cago, B. & Q. R. Co. v. Kyle, 228 Covington, 235 U. S. 537, 59 L. Ed. U. S. 85, 57 L. Ed. 741, 33 Sup. Ct. 350, 35 Sup. Ct. l58, L. R. A. 1915F, 440, affirming Kyle v. C, B. & Q. 792, P. U. R. 1915A. 231, In R. Co., 84 Neb. 621, 122 N. W. 37. the Seaboard A. L. R. Co. case 112. Missouri K. & T. R. Co. v. infra, the Georgia Blow Post law Texas, 245 U. S. 484, 62 L. Ed. 419, is held Invalid. See also note 110, 38 Sup. Ct. 178, see also note L. supra. § 21] Engaged, in Interstate Commerce. 191 sary and reasonable. A regulation, however, to stop an in- terstate train at a point where reasonable facilities for travel already exist is unreasonable and an invalid attempt to regu- late interstate commerce."'' This is true because the regula- tion was not a i-easonable exercise of the police power of the state. The opinion w^ritten 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 betAveen states, both of passengers and freight. A wholly un- necessary, even though a small, obstacle, ought not, in fair- ness, 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 deci- sions of this court on the subject, nor to assume that the in- terstate transportation, either of passengers or freight, is to l)e regarded as overshadowing the rights of the residents of the state through Avhich 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 adequately supplied, regard being 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 commerce."' A purely local ti'ain, however, although carrying passengers and mail destined to points beyond the state, may properly 113. Mississippi Railroad Com. v. St. L. & S. F. R. Co., 105 Mo. V. III. Cent. R. Co., 203 U. S. 335, App. 207, 79 S. W. 714. 51 L. Ed. 209, 27 Sup. Ct. 90. See 114. III. Cent. R. Co. v. Illinois, notes 54 L. Ed. U. S. Reports 970, 163 U. S. 142, 41 L. Ed. 107, 16 14 L. R. A. (N. S.) 293, and State Sup. Ct. 1096. l.!)2 Statk. Rk(julati()n of Carhikbs. [§ 21 be required to stop at oonnty seats directly on the line trav- ersed by such train. "^ Tbe ]\lississippi ease, supra, vmay. upon a casual reading, appear in conflict with a former decision of the Supreme Ccnu-t.'"' The cases, however, are easily distinguishable. In tlie ]\Tississi})pi case the facts showed that there were reason- able facilities for travel without 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 reasonablle must be passed upon by the courts and in one case the Supreme Court held the regulation to stop unneces- sary a)id. therefore, unreasonable. In the other, under the facts, the regulation was necessary and, therefore, reasonable. The Ohio case cites and discusses the authorities, and the conclusion of the opinion makes reference to the rule adopted subsequently in the Mississippi ease. This conclusion is as follows : "Our present .judgment has reference only to the case before us, and when other eases arise in which local statutes are alleged not to be Legitimate exertions of the police powers^ of the state, but to infringe upon national authority, it on then be determined Avhether they are to be controlled b}^ the decision now rendered. It would be impracticable, as well as uuAvise, to attempt to lay down any rule that would govern every conceiva1)le ease that might be suggested by ingenious minds." The Mississippi case Avas followed upon similar facts."'' The conclusion quoted above leaves the decision of each case to be determined by the court from its view of the particular facts, the principle applied being that interstate commerce may be indirectly aff'ected to the extent necessary to furnish "adequate and reasonable facilities." This in effect gives the states some control over interstate commerce, 115. Gladson v. Minnesota, 166 117. Atlantic C. L. R. Co. v. U. S. 427, 41 L. Ed. 1064, 17 Sup. Wharton, 207 U. S. 328, 52 L. Ed. Ct. 627. 230, 28 Sup. Ct. J 21; Herndon v. 116. Lake S. & M. S. R. Co. v. Chicago R. I. & P. R. Co., 218 U. Ohio, 173 U. S. 285, 43 L. Ed. S. 135, 54 L. Ed. 970, 30 Sup. Ct. 702, 19 Sup. Ct. 465. . 633. § 22] Engaged, in Interstate Commerce. 193 the Supreme Court having the power in each particular case to say whether or not that control shall be permitted. As indicated in sections 19 and 20 above, it seems that a more logical conclusion could be reached by enforcing the con- stitutional right of interstate transportation, fully regulated by Congress, to be free of state regulation. The difficulties of applying the rule are stated by Mr. Justice McKenna in a decision holding a Wisconsin statute invalid"* and are illus- trated when that decision is read wnth a later one holding a Texas regulation valid."" § 22. State Regulation of Carriers and Their Employees. — A state statute requiring engineers to be examined and licensed is not void, although it may incidentally and re- motely affect interstate commerce.^"" A law of a state forbidding those affected w^ith color blind- ness from acting as locomotive engineers is a valid exercise of the state's police power.^"^ In sustaining the above prin- ciple, Mr. 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 employees and others on railway trains engaged in that com- merce; and that such legislation wall supersede any state action on the subject. But until such legislation is had, it is clearly within the competency of the state 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 wherever there is any businiess 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 118. Chicago, B. & Q. R. Co. v. 159; in 17 L. R. A. (N. S.) 821 R. R. Com. of Wis.. 237 U. S. 220, and in 14 L. R. A. (N. S.) 293; and 59 L. Ed. 926, 35 Sup. Ct. 560, P. see INIissouri, K. & T. R. Co. v. U. R. 1915C, 309. Texas, 245 U. S. 484, 62 L. Ed. 419, 119. Gulf C. & S. F. Ry. Co. v. 38 Sup. Ct. 178, note 112, supra. Texas, 246 U. S. 58, 62 L. Ed. 574, 120. Smith v. Alabama, 124 U. S. 38 Sup. Ct. 236. See also note 112 465, 31 L. Ed. 508, 8 Sup. Ct. 564, and sections 19 and 20, supra. 1 I. C. R. 804. notes in 59 L. Ed. 926; in 62 L. 121. Nashville, C. & St. L. R. Ed. 574, 575; in 44 L. R. A. (N. Co. v. Alabama, 128 U. S. 96, 32 S.) 478; in 29 L. R. A. (N. S.) L. Ed. 352, 9 Sup. Ct. 28. 1.94 State Regulation of Carriers. [§ 22 of the states, but it is among their plain duties, to make pro- vision against a(!cidents 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 num- ber of employees to a train, known as the Full Crew Law, is valid.'"" A law requiring an electric head light on engines has been held valid, although it is near the margin of the power of a state if it does not offend against the commerce clause of the federal Constitution.'"'' If a state can not regulate the employees of railroads in so far as they are engaged in intrastate commierce, they can not be regulated.'"* Congress having in 1908 passed a second Employees' Lia- bility Act, which is valid, the passage of that act removed that subject from the sphere of state action.'^® There being nothing in the federal laws to conflict therewith, it is within the power of a state legislature to require carriers to pay employees wages 122. Chicago, R. I. & P. Ry. Co. V. Arkansas, 86 Ark. 412, 111 S. W. 456; for note see 32 L. R. A. (N. S.) 22; Chicago, R. I. & P. Ry. Co. V. Arkansas, 219 U. S. 45.?., 55 L. Ed. 290, 31 Sup. Ct. 275. But a law of Texas pro- hibiting anyone from acting as a conductor on a railway train with- out previous service as a brake- man is void as a denial of the equal protection of the law. Smith V. Texas, 233 U. S. 630, 58 L. Ed. 1129, 34 Sup. Ct. 681; reversing same styled case, 63 Tex. Cr. App. 183, 146 S. W. 900. The require- ment of a specified crew in switch- ing across streets sustained. St. Louis I. M. & S. R. Co. v. Arkan- sas, 240 U. S. 518, 60 L. Ed. 776, 36 Sup. Ct. 443. 123. Atlantic C. L. R. Co. v. State of Georgia, 135 Ga. 545, 69 S. E. 725, 32 L. R. A. (N. S.) 20; same styled case, 234 U. S- 280, 58 L. Ed. 1312, 34 Sup. Ct. 829. The Supreme Court has indicated that since the pnssage of the Act of March 4, 1915 (Chap. 168, 38 Stat. L. 1192, Fed. Stat. Ann. 8638a) this decision may not be controling. Vandalia R. Co. v. Pub. Serv. Com. of Ind., 242 U. S. 255, 61 L. Ed. 276, 37 Sup. Ct. 93. 124. Howard v. Illinois C. R. Co., 207 U. S. 46.3., 52 L. Ed. 297, 28 Sup. Ct. 141. See a discussion of Smith V. Alabama and similar cases in dissenting opinion of Mr. Justice Moody. 125. For a discussion of this Act see post. Sec. 332: see also North- ern ?ac. Ry. Co. v. Washington, 222 U. S. 370, 56 L. Ed. 237, 32 Sup. Ct. 160; North Carolina R. R. Co. V. Zachary, 232 U. S. 248, 58 L. Ed. 591, 34 Sup. Ct. 305; reversing same styled case, 156 N. C. 496, 72 S. E. 858; Erie R. ^ 23] Engaged, in Inteestate Commeece. 195 s influencing the operation of a railroad in the transportation of freight." ""'' Joint rates would, if the whole rare is intrastate be within the regulating power of the states."" The right to prescribe rea.sonable rates includes the right to prohibit rates which are unjustly discriminatory.""' AVhile the Federal government had control and operated interstate railroads and telephone companies intrastate rates were withdrawn from the regulatory poAvers of the states."" Com. of Ala., 209 Fed. 75; Darnell 253. Hill, et al, Com'rs. v. Wad- V. Edwards, 209 Fed. 99; Chicago ley Sou. Ry. Co., 128 Ga. 705, 57 & N. W. R. Co. V. Smith, 210 Fed. S. E. 795. 632; Sou. Pac. Co. v. R. R. Com. 254. Portland Ry. Light & of Oregon, 208 Fed. 926; Puget Power Co. v. R. P. Com. of Oregon, Sound Traction Light & Power Co. 229 U. S. 397, 57 L. Ed. 1248, 33 V. Reynolds, 223 Fed. 371; Detroit Sup. Ct. 820, affirming same styled & Mackimac R. Co. v. Fletcher case, 56 Or. 468, 105 Pac. 709. Paper Co., 248 U. S. 30, 63 L. Ed. 255. Northern P. R. Co. v. North , 39 Sup. Ct. . Dakota, 249 U. S. , 63 L. Ed. 250. Trenton & M. C. T. Corp. — , 39 Sup. Ct. — . Construing Fed- V. Trenton, 227 Fed. 502, Affirmed eral Control Act, Mar. 21, 1918, 40 229 Fed. 140, 143 C. C. A. 316. Stat. L. Chap. 25, Comp. Stat. 1918, 251. Penn. R. Co. v. Towers, Sec. 311.5-3 /4A. Dakota Cent. Tel. 245 U. S. 6, 62 L. Ed. 117, 38 Sup. Co. v. South Dakota, 249 U. S. — , Ct. 2. 63 L. Ed. — , 39 Sup. Ct. — . Con- 252. Southern Ry. Co. v. Atlanta struing Res. of June 16, 1918, 40 Stove Works, 128 Ga. 207, 57 S. E. Stat. L. 904, Chap. 154. Comp. 429, an able opinion, in which is Stat. 1918, Sec. 3115-3/4X. See discussed the principles of regu- Appendix 1. lation. <§> 44] Engager in Interstate Commerce. 235 ^ 44. Intrastate Rates Which Affect Interstate Rates. — A state may not regulate intrastate rates by the standard of in- terstate rates by basing a rate for a short haul within the state upon the carrier's rate for the long haul over the same line when the long haul is between states/'" And when local rates are made for the purpose and have the etlfect of so regula- ting transportation that commerce which might be interstate is forced to move intrastate, and when the local rates dis- criminate against the interstate rates, the regulation making ^uch local rates is invalid. The Eailroad Ci^mmission of Texas established rates between points in that state which the railroads accepted, and which discriminated in favor of localities in Texas and against lo- calities in Louisiana. Upon petition on behalf of the localities in Louisiana against the carriers, the Interstate Commerce Commission held that this discrimination was unlawful and unjust."" Suit having been filed in the Commerce Court to set aside the order of the Commission, it was held that the car- riers were guilty of unlaAvful and unjust discrimination, and that it was no defense that such discrimination resulted from the orders of the Texas Commission."* An appeal was taken from the Commerce Court to the Supreme Court,"" and the order of the Commission was sustained in an opinion written by ]\Tr. Justice Hughes. The opinion was based upon the right of Congress "to keep the highways of interstate com- munication open to interstate traffic upon fair and equal terms." The opinion of the Court is so clear and cogent that its correctness can but be acknowledged. To permit states to prescribe interstate rates under which citizens of the states may exclude from competition with themselves, shippers located in other states from whose locations the transportation conditions are similar to those from points in the state, would be to efifectuate the purposes to prevent which was the prin- cipal object of the Constitution of the United States. Not 256. Louisville & N. R. Co. v. 258. Texas & P. R. C. v. United Eubanks, 184 U. S. 27, 46 L. Ed. States. Commerce Court Reports 416, 22 Sup. Ct. 277. No. 68, p. 655, 205 Fed. 380. 257. Railroad Com. of La. v. St. 259. Houston E. & W. T. Ry. Co. Louis S. W. R. Co. 23 I. C. C. 31. v. U. S., 234 U. S. 342, 58 L. Ed. 1341, 34 Sup. Ct. 833. 236 State Regulation of Carriers. [§ 45 only it tlio doeision in the Slir2veport case, cited in notes 216, 217 ;ind 218, supra, in accord with the Constitution, any other rule would result in endless confusion and frequent in- justice."*" The principle announced in the Shreveport Case, supra, has heen followed by the Commission and the courts and there has been a constantly increasing recognition of the propriety of the decision.'" So far is this true that the Act of 1920 makes statutory the Courts' construction of the original Com- merce Act/*^. § 4r>. Limitations on the Power of States to Regulate Intra- state Rates. — AVhen private property is devoted to a public use, organized society has the right to regulate the charges for such use. This right may be exercised by or under the authority of state laws when the use is within the state, and subject to th'^ further limitation that the regulation does not extend to a taking of private property without due process of law^ or without a fair compensation. This principle as we have seen (Section 86 supra) is old, but the need in this coun- try for its api)lication is comparatively recent. The first of the important applications of the principle was made in ]\Iunn 260. Corporation Com. of Okla. U. S. 214, 62 L. Ed. 1084, 38 Sup. V. A. T. & S. F. Ry. Co., 31 I. C. Ct. 460. The rule was applied to C. 532; Trier v. C, St. P. M. & express rates. Traffic Bureau v. 0. Ry. Co., 30 I. C. C. 352, 707; American Exp. Co. 39 T: C. C. 703; Rates on Beer, 31 I. C. C. 544; Amer. Exp. Co. v. South Dakota, Points, 32 I. C. C. 361; Merchants 244 T^ S. 617, 61 L. Ed. 1352, 37 Exchange of St. Louis, Mo. v. B. & Sup. Ct. 656. To Passenger Fares: O. R. Co., ?A I. C. C. S41. Business Men's League of St. 261. Sees. 184, 335, post. Louis v. A. T. & S. F. R. Co., 41 262. For a general discussion of I. C. C. 13, 503; Illinois C. R. Co. the question see Federal v. State v. Public Utilities Com. of 111. 245 Regulations of Railroads by the U. S. 493, 62 L. Ed. 425, 38 Sup. author hereof, Case & Comment, Ct. 170; Business Men's League Vol. 23, No. 5, Page 372 et. cet. v. A. T. & S. F. R. Co., 49 I. C. C. Subsequent developments of the 713. For other cases see: Mer- Shreveport case are shown in chant's Exchanoe v. B. & 0. R. Co., Railroad Com. of La. v. A. H. T. 34 I. C. C. 3^1; The Missouri Ry. Co., 41 I. C. C. 83; 43 I. C. C. River-Nebraska Cases. 40 I. C. C. 45; Eastern Tex. R. Co. v. Rail- 201; Memphis v. Chicago R. I. & road Com. of Texas. 242 Fed. 300; P. Ry. 43 I. C. C. 121; Texarkana Looney v. Eastern Tex. R. Co. 247 Frt. Bureau v. St. L. I. M. & S. Ry. § 45] Engagep, in Interstate Commerce. 237 V. Illinois and the other Granger cases,"" decided by the Su- preme Court of the United States in 1877, Then follow; the Railroad Commission cases of 1886,""* Dow v. Beidelraan of 1888,'"' the Minnesota case ''"'• of 1890, the Texas Commission case of 1894,^^"' the Turnpike case"'' in 1896, Smyth v. Ames'"" in 1898, the National City case in 1899,"'° the Stock Yard case in 1901,'" the Water Rate cases of 1903,'" and the Water and Gas cases of 1909."'' These and otlier cases will be found in a note hereto."* Co.,. 43 I. C. C. 224; Memphis Mer- chants Exchange v. I. C R. Co. 43 I. C. C. 378; Business Men's League v. A. T. & S. F. Ry. Co., 44 I. C. C. 308; LaCrosse Shippers Assn. V. C. & N. W. Ry. Co., 44 I. C. C. 512; Royster Guano Co. v. A. C. L. Ry. Co., 50 I. C. C. 34; Landon v. Public Utilities Com. of Kansas 234 Fed. 152, 242 Fed. 658, 245 Fed. 950. 263. Munn v. Illinois, 94 U. S. (4 Otto.) 113, 24 L. Ed. 77; Chi- cago, B. & Q. R. Co. V. Iowa (v. Cutts), 94 U. S. 155, 24 L. Ed. 94; Peik V. Chicago & N. W. R. Co., 94 U. S. 164, 24 L. Ed. 97; Chicago, M. & St. P. R. Co. V. Ackley, 94 U. S. 179, 24 L. Ed. 99; Winona & St. Paul R. Co. V. Blake, 94 U. S. 180, 24 L. Ed. 99; Stone v. Wis- consin, 94 U. S. ISl, 24 L. Ed. 102. 264. Stone v. Farmers' Loan & Trust Co., 116 U. S. 307, 29 L. Ed. 636, 6 Sup. Ct. 334, 1191; Stone v. 111. Cent. R. Co., 116 U. S. 347, 29 L. Ed. 650, 6 Sup. Ct. 348, 1191; Stone V. New Orleans & N. E. R. Co., 116 U. S. 352, 29 L. Ed. 651, 6 Sup. Ct. 349, 391. 265. Dow V. Beidelman, 125 U. S. 680, 31 L. Ed. 841, 8 Sup. Ct. 1028. 266. Chicago, M. & St. Paul R. Co. V. Minnesota, 1S4 U. S. 418, 33 L. Ed. 970, 10 SiiD. Ct. 462. 267. Reagan v. Farmers' Loan & Trust Cc. 154 U. S. 362, 38 L. Ed. 1014, 14 Sup. Ct. 1047. 268. Covington & L. 1 urnpike R. Co. V. Sandford, 164 U. S. 578. 41 L. Ed. 561, 17 Sup. Ct. 198. "^« 42 L. Ed. 819, 18 Sup. Ct. 418. 269. Smythe v. Ames, 169 U. S. Freight Rates fi-om Minnesota Co. V. National City, 174 U. S. 739, 43 L. Ed. 1154, 19 Sup. Ct. 804. 271. Cotting V. Godard, 183 U. S. 79, 46 L. Ed. 92, 22 Sup. Ct. 30. 272. Knoxville Water Co. v. Knoxville, 189 U. S. 434, 47 L. Ed. 887, 23 Sup. Ct. 531; San Diego Land & Town Co v. Jasper, 189 U. S. 439, 47 L. Ed. 892, 23 Sup. Ct. 571. 273. Knoxville v. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 Sup. Ct. 148; Wilcox v. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 387, 29 Sup. Ct. 392. 274. Budd v. New York, 143 U. S. 517, 36 L. Ed. 247, 4 I. C. R. 45, 12 Sup. Ct. 468; Brass v. North Dakota ex rel. Stoeser, 153 U. S. 391, 38 L. Ed. 757, 4 I. C. R. 670, 14 Sup. Ct. 857. See also the follow- ing cases in state and federal courts: People v. Budd, 117 N. Y. 1, 5 L. R. A. 599, 22 N. E. 670; Lake Shore & M. S. R. Co. v. Cincinnati, S. & C. R. Co., 30 Ohio St. 604; State ex rel. Attorney 238 State Regut^tion of Carriers. [§ 45 Til 191 3,"'^ the Supreme Court, in a series of eases involving state made rates relating to intrastate transportation, an- nounced principles which are as important as those in the Granger and Railroad Commission cases, supra. These priii- General v. Columbus Gaslight & Coke Co., 34 Ohio St. 572, 32 Am. Rep. 390; Davis v State, 68 Ala. 58, 44 Am. Rep. 128; Baker v. State, 54 Wis. 368, 12 N. W. 12; Nash V. Page, 80 Ky. 539, 44 Am. Rep. 490; Girarci Point Storage Co. V. Southwalk Foundry Co., 105 Pa. 248; Sawyer v. Davis. 136 Mass. 239, 49 Am. Rep. 27; Brech- bill V. Randall, 102 Ind. 528, 52 Am. Rep. 695, 1 N. E. 362; Dela- ware, L. & W. R. Co. V. Central Stock Yard & Transit Co., 45 N. J. Eq. 50, 6 L. R. A. 855, 17 Atl. 146; Spring Valley Waterworks v. Schottler, 110 U. S. 347, 28 L. Ed. 173, 4 Sup. Ct. 48; Railroad Com- mission Cases, 116 U. S. 307, sub. nom. Stone v. Farmers' Loan & Trust Co., 29 L. Ed. 636, 6 Sup. Ct. 334, 388, 1191; 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; Dow V. Beidelman, 125 U. S. 680, 31 L. Ed. 841, 2 I. C. R. 56. 8 Sup. Ct. 1028; 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; Chicago & G. T. R. Co. V. Wellman, 143 U. S. 339, 36 L. Ed. 176, 12 Sup. Ct. 400; Reagan v. Farmers' Loan & T. Co., 154 U. S. 362, 3S-L. Ed. 1014, 4 I. C. R. 560, 14 Sup. Ct. 1047; St. Louis & S. F. R. Co v. Gill, 156 U. S. 649, 39 L. Ed. 567. 15 Sup. Ct. 484; Covington & L. l^urnpike Road Co. V. Sandford. 164 U. S. 578, 41 L. Ed. 560, 17 Sup. Ct. 198; Smyth V. Ames, 169 U. S. 466, 42 L. Ed. 819, 18 Sup. Ct. 418; San Diego Land & Town Co. v. National City, 174 U. S. 739, 43 L. Ed. 1154, 19 Sup. Ct. 804; Chicago, M. & St. P. R. Co. V. Tompkins, 176, U. S. 167, 44 L. Ed. 417, 20 Sup. Ct. 336; Atlantic C. L. R. Co. V. North Carolina Corp. Com.-, 206 U. S. 1, 51 L. Ed. 933, 27 Sup. Ct. 585, 11 Ann. Cas. 398. Oklahoma Operating Co. v. Love, 251 U. S. — , 64 L. Ed. — , 40 Sup. Ct. — . 275. Minnesota Rate Cases. Simpson v. Shepard, 2.30 U. S. 352, 57 L. Ed. 1511, 33 Sup. Ct. 729; Missouri Rate Cases, Knott v. C. B. & Q. R. Co.. 230 U. S. 474, 57 L. Ed. 1571, 33 Sup. Ct. 975; West Vir- ginia Cases, Chesapeake & 0. Ry. Co. V. Conley, 230 U. S. 513, 57 L. Ed. 1597, 33 Sup. Ct. 985; Oregon Cases, Oregon R. & N. Co. v. Campbell, 230 U. S. 525, 57 Fed. 1625, 33 Sup. Ct. 1011, 177 Fed. 318. 180 Fed. 253; Southern Pac. Co. V. Campbell, 230 U. S. 537; Arkansas Cases, Allen v. St. Louis I. M. & S. Ry. Co., 230 U. S. 553, 57 L. Ed. 1625, 33 Sup. Ct. 1030; Indiana Rate Cases, Wood v. Vandalia R. Co., 231 U. S. 1, 58 L. Ed. 97, 34 Sup. Ct. 7; Kentucky Rate Case, Louisville & N. R. Co. V. Garrett. 231 U. S. 298, 58 L. Ed. 229, 34 Sup. Ct. 48; Cent, of Ga. R. Co. V. R. R. Com. of Ala. 209 Fed. 75, 79; Chicago & N. W. Ry. Co. V. Smith, 210 Fed. 632; Cent, of Ga. R. Co. V. Georgia R. R. Com., 215 Fed. 421. For a con- tinuation of the Arkansas Cases see Boyle v. St. Louis & S. F. Ry. Co., 222 Fed. 539. § 45] Engagei>. in Interstate Commerce. 239 ciples are but the logieal applicatio n of prior decisions and Mr. Justice Hnghes, in writing the opinions of the court, has ably and exhaustively discussed the question and vindicated th? rights of the states to regulate rates of charges of public car- riers within their respective borders. In the Minnesota Rate cases, the learned Justice said : "If this authority of the state be restricted, it must be by virtue of the paramount power of Congress over interstate commerce and its instruments ; and, in view of the nature of the subject, a limitation may not be implied because of a dormant federal power, that is, one which has not been exerted, but can oidy be found in the actual exercise of federal con- trol in such measure as to exclude this action by the state which otherwise would clearly be within its province." This right is in all cases subject to constitutional limitations, and there is a clear intimation, as shown in Sec. 6, supra, that the federal government has not exercised as yet all its powers under the commerce clause of the Constitution. The right of Congress was stated by the Supreme Court in sustaining an order of a State Commission prescribing a rate where, as said by the Court : " It was proper for the Interstate Commerce Commission \to consider the rate as part of a through rate from points outside of the state. It was equally proper for the State Commission to consider it as part of the intrastate haul, and we do not think the rates were so related as to exclude the exercise of jurisdiction by the State Commission."^'" This statement would permit for the same movement one rate when the freight originated out of the state and another rate when the freight originated in the state, an anomalous situation which should be remedied. Congress by the Transportation Act of 1920 regulated intra- 276. Chicago M. & St. P. R. Co. of the powers of the states in- V. Public Utilities Com. of 111. 242 directly to affect interstate com- U. S. 333, 61 L. Ed. 341, 37 Sup. naerce. These powers include the Ct. 173. Dist. Judge Booth in right to require a service as well Landon v. Public Utilities Com. of as to fix a charge. Brooklyn Kansas 242 Fed. 658 Collates and Heights R. Co. v. Straus, 245 intelligently discusses the cases Fed. 132. wherein are stated the limitations 240 Statk Regul.ation of Cakriebs. [§ 40 state rates somoAvhat more than theretofore, but then did not go as far as it constitutionally miglit. § 46. Property Basis for Returns. — Investors are entitled to a reasonable return on the fair value of the property devoted to the public use. Until there shall be an authoritative determination of the value of railroad property, Commissioners and Courts must as best they may arrive at this value. In applying the decisions of courts to the question, it is necessary to keep in mind the different functions performed by courts and by quasi-legislative tribunals. The courts usually must determine the strictly legal ques- tion, Is the rate under investigation "so unreasonably low that the carriers are deprived of their property without due process of lav/ and denied the equal protection of the law?" Minne- sota Rate Cases, supra. "The rate making power is a legislative power and neces- sarily implies a range of legislative discretion ; and the ques- tion to be determined by a tribunal to which this DOwer has been delegated is. Is the rate just and reasonable? (Id.) Obviously a rate may be less than just and reasonable with- out being confiscatory. "While a tribunal exercising the legis- lative function may not make a rate so low as to be violative of the constitutional restrictions and legal prinoiples an- nounced by courts of binding authority, such tribunal may not di.sregard its duty to exercise its "legislative discretion," the power to apply which, said Mr. Justice Moody, "is a delicate and dangerous function, and ought to be exercised with a keen sense of justice." Knoxville v. "Water Co., supra. "Fair value" has been defined as "the reasonable value of the property at the time, it is being used for the public." San Biego Land Co. v. National City, supra. This, excepting the fact that it fixes the time at which value is to be found, is more a restatement of the question than a definition of the term; "reasonable" being as inexact as "fair." In the leading and much cited ease of Smyth v. Ames, the court had for determination the legal question of whether or not a legislative act violated the constitutional rights of the carriers, and the opinion of the court must be understood as § 46] EngageP; jn Interstate Commerce. 241 being limited by the question involved. The court held that the law demanded a "fair return" on the fair value of the property used * * * for the convenience of the public. What was the "fair value" and what would be a "fair re- tvTrn," were mixed questions of law and "legislative dis- cretion." The coTirt determined only the legal question and found that "the act, if enforced, would have deprived each of the railroad companies * * * of the just compensation secured to them by the Constitution." (p. 547.) In reaching this determination, however, the court stated rules which should be considered in "all calculations as to the reasonable- ness of rates." (p. 546.) These rules must be followed by rate making bodies. In ascertaining "value" the court held that consideration must be given to the following facts: (1) "The original cost of construction." (■2) "The amount expended in permanent improvements." (3 "The amount and market value of its (the carrier's) bonds and stock." (4) "The present as compared with the original cost of construction." (5) "The probable earning capacity of the property under particular rates prescribed by statute." (6) "The sum required to meet operating expenses." All these to be "given such weight as may be just and right in each case." P. 547. In the Minnesota Rate Cases, .^u^ra, p. 433 of the opinion, the "legislative discretion" is distinguished from the judicial question: has the state "overstepped the constitutional limit?" While the court in that case cited as correct "general prin- ciples" those announced in Sm.yth v. Ames (p. 434) Mr. Jus- tice Hughes, who delivered the opinion of the court, said : "The ascertainment of value is not controlled by artifiGial rules. It is not a matter of formulas, but there must be a reasonable judgment having its basis in a proper considera- tion of all relevant facts." fp. 434.) He then applied some- what more restricted rules than those stated in Smyth v. Ames. In so doing, however, he was careful to state that he was considering "a judicial finding" (p. 451) ; that the "judi- cial power to declare legislative action invalid upon constitu- tional grounds is to be exercised only in clear cases" (p. 452) ; 242 State Regulation of Carriers. [§47 and "that we are concerned with a charge of confiscation of property" (p. 4'58). So the court held that the Minnesota rates had not been proven to be confiscatory, but it was not found that such rates were just and reasonable. In Pennsylvania the courts have authority upon complaint to determine whether or not existing rates are reasonable."' In a Pennsylvania ease""^ it was said: "The primary basis of any calculation as to the value of a water plant must be the money actually invested by the owners. If the earnings of the company have been used to improve the property, it is counted as so much more cash invested." When the commodity shipped is natural gas, in fixing a basis for returns, the fact that the supply is diminishing must be considered, otherwise there is confiscation."' § 47. When Does a Rate Violate Rights under the Fourteenth Amendment? — That "prescribing rates for the future is an act legislative, and not judicial, in kind" cannot be disputed,"" but whether or not a particular rate regulation takes property "without just compensation," is at least in part a question of law. The legislative branch of the government must obey the constitution, and it has long been established by the Supreme Court of the Ignited 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 may materially disagree on this subjject. Should the net income 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 which shall be earned by a 277. Brymer v. Butler Water facts which must receive con- Co., 179 Pa. St. 331, 36 Atl. 249. sideration. 278. Wilkes-Barre v. Spring 279. Landon v. Public Utilities Brook Water Co., 4 Lack. Pa. Leg. Com. of Kansas 234 Fed. 152. News 367; The Transportation 280. Louisville & N. R. Co. v. Act 1920, Sec. 15 A specifies other Garrett, 231 U. S. 298, 58 L. Ed. 229, 34 Sup. Ct. 48, and cases cited. § 47] Engaged, in Interstate Commerce. 243 pnhlic carrier, shall the courts annul such action, if in the opinion of the particular judge or judges trying the case, the amount fixed is not a just and fair 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 obli- gation 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 Moody in Knoxville Water case, fiipra : "The courts, m 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 conditions of necessary monopoly will occur with greater and greater frequency as time goes on. It is a delicate and dangerous function, 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." What 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 Knoxville Water case and the New York Gas case. In the Knoxville case, where the proof indicated clearly that the earnings, after deducting two per cent for depreciation, would net four per cent, the court held that confiscation had not been proved. In the Gas ease ]\lr. Justice Peckham, speaking for the court, said: "Taking all facts into consideration, we con- cur with the court below on this question, and think com- plainant is entitled to six per cent on the fair value of its property devoted to the public use." The Circuit Judge, in the Minnesota Eate cases,''" held that a "net income of 7 per cent per annum on the value of a railroad property . , , is not more than the fair return to which a railroad company is entitled under the 281. Shepard v. Northern Pac. Simpson v. Shepard, 230 U. S. 352, Ry. Co.. 184 Fed. 765, reversed, 57 L. Ed. 1511. 33 Sup. Ct. 729. 244 State Regulation of Carriees. [^ 47 Fourteentli Amendment to the Constitution." The Supreme Court reversed the Circuit Judge, on the ground that con- fiseation had not been shoAvn but did not determine what was a reasonable rate of return. In discussing telephone rates, the Supreme Court declined to express an opinion as to whether or not 6 per cent on the investment was confiscatory.^*'' In another case where the property of the corporation was fix'ed at a value higher than the cost and a return of 6 per cent was fixed on such value, the Supreme Court refused to set aside the rate yielding such return. In this case, the ques- tion of the value of the franchise was discussed and Mr. Jus- tice Holmes stated the difficulty of solving the problem in this language.''" "An adjustment of this sort under a power to regulate rates has to steer between Scylla and Charybdis. On the one side if the franchise is taken to mean that the most profitable return that could be got, free from competition, is protected by the Fourteenth Amendment, then the power to regulate is null. On the other hand if the power to regulate withdraws the protection of the Amendment altogether, then the property is nought. This is not a matter of economic theory, but of fair interpretation of a bargain. Neither extreme can have been meant. A midway betAveen them must be hit." In the Des Moines Gas case '^* the court said : "Nor do we think that there was error in refusing an in- junction upon the conclusion reached that a return of 6 per cent per annum on the valuation would not be confiscatory. This is especially true in view of the fact that the ordinance was attacked before there was opportunity to test its result by actual experience." None of tliese cases announces a general rule, and it is obvious that what would be reasonable in one case 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 282. Louisville, City of, v. Cum- Cedar Rapids, 223 U. S. 655, 56 L. berland Tel. & Tel. Co., 225 U. S. Ed. 594, 32 Sup. Ct. 389. 430, 56 L. Ed. 1151, 32 Sup. Ct. 741. 284. Des Moines Gas Co. v. City 283. Cedar Rapids Gas Co. v. of Des Moines, 238 U. S. 153, 59 L. Ed. 1244, 35 Sup. Ct. 811. § 47] Engaged, in Interstate Commerce. 245 a return as a more hazardous business. All these questions are primarily questions of policy for the legislature, and it is only when the rate prescribed violates the constitutional require- ment that courts may act. Tn San Diego Land & Town Co. v. National City, it was said :^'^ "What the company is entitled to demand, in order that it may have just compensation, is a fair retnrn upon the reasonable value of the property at the time it is being used for the public." What is a "fair return" is primarily a legislative question, and ^Ir. Justice Hughes, in the Minnesota Rate cases, supra. stated the power of the courts by saying: "We do not sit as a board of revision to substitute our judgment for that of the legislature, or of the commission lawfully constituted by it, as to matters within the province of either." Only when the circumstances are exceptional should a finding of an administrative or legislative tribunal be set aside ;^^^ and the carrier must have shown proper efforts to have developed traffic.^" Much difficulty is experienced in distributing operat- ing expenses and operating revenues betw^een the intra- state and intei-state biisiness of railroads. Some of these can be allocated but a large part must be distributed. In section 45, supra, are cited cases, especially the Minnesota Rate Cases and the 1913 cases, in which the carriers failed to overcome this difficulty. A method was applied in the Ar- kansas Rate Case which perhaps in the present state of rail- road accounting is as nearly accurate as is prssible. Judge Trieber ap])lifd tlie method and hi« decision was affirmed.^** 28.5. San Diego Land & Town Co. lina Corp. Com., 206 U. S. 1, V. National city, 174 U. S. 739, 43 26, 51 L. Ed. 933, 27 Sup. Ct. 585, L. Ed. 1154, 19 Sup. Ct. 804. See when speaking of rate making the also San Diego Land & Town Co. Chief Justice referred to the V. Jasper, 189 U. S. 43.9. 47 L. Ed. "flexible limit of judgment which 892, 23 Sup. Ct. 571; Knoxville v. belongs to the power to fix rates." Knoxville Water Co., 212 U. S. 1, 286. Ann Arbor R. C. v. Fellows 53 L. Ed. 371, 29 Sup. Ct. 148; 236 Fed. 387. Wilcox V. Consolidated Gas Co., 287. Darnell v. Edwards, 244 U. 212 U. S. 19, 53 L. Ed. 382, S. 564, 61 L. Ed. 1317, 37 Sup. Ct. 29 Sup. Ct. 192; Smyth v. Amess, 701. 169 U. S. 466, 42 L. Ed. 819, 288. Boyle v. St. L. & S. P. R 18 Sup. Ct. 418. And see At- Co. 222 Fed. 539, P. U. R. 1916 A lantlc C. L. R. v. North Care- 246 State Regulation of Carriers. [§48 The quest inn depending §, 59] Engaged, in Interstate Commerce. 269 § 59. Taxation, Including License Taxes. — The states may U. S. 455, 30 L. Ed. 237, G Sup. Ct. 1114; Missouri, K. & T. Ry. Co. V. Haber, 169 U. S. 613, 42 U Ed. 878, 18 Sup. Ct. 488; Louisiana v. Texas, 176 U. S. 1, 44 L. Ed. 347, 20 Sup. Ct. 251; Rasmussen v. Idaho, 181 U. S. 198, 45 L. Ed. 820, 21 Sup. Ct. 594; Compagnie Francaise, etc. V. Board of Health, 186 U. S. 380, 46 L. Ed. 1209, 22 Sup. Ct. 811; Midland Valley R. Co. v. State, 35 Okla. 672, 130 Pac. 803. Such laws, however, can not be made a cover for discriminat- ions and arbitary en;ictments having no reasonable relation to health, Hannibal & St. J. R. Co. V. Husen, 95 U. S. 465, 472, 473, 24 L. Ed. 521. Pure Food- McDermott v. Wisconsin, 228 U. S. 115, 57 L. Ed. 754, 33 Sup. Ct. 431, reversing same case, 143 Wis. 18, 126 Mo. 888, 21 Am. Cas. 1315; Texas & P. Ry. Co. V. Abilene Cot Oil. Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350, 9 Am. Cas. 1075; Northern Pac. Ry. Co. v. Wash- ington, 222 U. S. 370, 56 L. Ed. 237, 32 Sup. Ct. 160; Southern Ry. Co. V. Reid, 222 U. S. 424, 56 L. Ed. 257, 32 Sup. Ct. 140; Second Employers' Liability cases, Mondou V. N. Y. N. H. & H. R. Co., 223 U. S. 1, 56 L. Ed. 327, 32 Sup. Ct. 169, 38 L. R. A. (N. S.) 44; Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 Sup. Ct. 715; Hipolite Egg Co. V. United States, 220 U. S. 45, 55 L. Ed. 364, 31 Sup. Ct. 364. construing federal statute. Laws of Congress supreme, Sligh v. Kirkwood, 237 U. S. 52, 59 L. Ed. 835, 35 Sup. Ct. 501. False statements of the curative effects of a drug violates Feder- al Pure Food Laws. United States V. Six Cases, 239 U. S. 510, 60 L. Ed. 4li, 36 Sup. Ct. 190. So of a food. Weeks v. United States, 245 U. S. 618, 62 L. Ed. 513, 38 Sij. Cit. 219. Federal Law Supreme, Crescent Mfg. Co. v. Wilson. 233 Fed. 282. packages imported to state in interstate or foreign commerce not subject to prohibitory laws of state, Leisy v. Hardin, 135 U. S. 100, 34 L. Ed. 128, 10 Sup. Ct. 681. See application of princi- ple, Bowmjan v. Chicago & N. W. R. Co., 125 U. S. 465, 31 L. Ed. 700, 8 Sup. Ct. 689; Rhodes V. Iowa, 170 U. S. 412, 42 L. Ed. 1088, 18 Sup. Ct. 664; Vance v. Vandercook Co., 170 U. S. 438, 42 L. Ed. 1100, 18 Sup. Ct. 674; Scott V. Donald, 165 U. S. 58, 95 41 L. Ed. 632, 17 Sup. Ct. 265; May V. New Orleans, 178 U. S. 496, 44 L. Ed. 1165, 20 Sup. Ct. 976; Austin v. Tennessee, 179 U. S. 343, 45 L. Ed. 224, 21 Sup. Ct. 132; American Exp. Co. v. Iowa, 196 U. S. 133, 49 L. Ed. 417, 25 Sup. Ct. 182; Cook V. Marshall County, Iowa, 196 U. S. 261, 49 L. Ed. 471, 25 Sup. Ct. 233; Pabst Brewing Co. v. Crenshaw, 198 U. S. 17, 49 L. Ed. 925, 25 Sup. Ct. 552; Heyman v. South- ern Ry. Co., 203 U. S. 270, 51 L. Ed. 178, 27 Sup. Ct. 104; Rearick V. Pennsylvania, 203 U. S. 507, 51 L. Ed. 295, 27 Sup. Ct. 159; Adams Exp. Co. v. Kentucky, 206 U. S. 129, 51 L. Ed. 987, 27 Sup. Ct. 606; Adams Exp. Co. V. Kentucky, 214 U. S. 218, 53 L. Ed. 972, 29 Sup. Ct. 633, con- 270 State Regulation of Carriers. [§ 59 not burden interstate commerce by taxing the business nor struing Wilson Act of Aug. 8, 1890, chap. 728, 26 Stat. 313; Ex Parte Oklahoma, 220 U. S. 191, 55 L. Ed. 431^ 31 Sup. Ct. 426, dispensary law. Louisville & N. R. Co. V. Cook Brewing Co., 223 U. S. 70, 56 L. Ed. 355, 32 Sup. Ct. 189 affirming same case, 172 Fed. 117, 96 C. C. A. 322, 40 L. R. A. 798, and holding that a railroad will be enjoined from refusing beer for shipment in interstate commerce, even though the shipment is to a pro- hibition district. Purity Extract Co. V. Lynch, 226 U. S. 192, 57 L. Ed. 84, 33 Sup. Ct. 44, dis- cussing effect of Wilson Act and affirming Purity Extract Co. v. Lynch, 100 Miss. 650, 56 So. 316. De Bary v. Louisiana, 227 U. S. 108, 57 L. Ed. 441, 33 Sup. Ct. 739. affirming State v. Fredrick De Bary & Co., 130 La. 1090, 58 So. 892; McDermott v. Wiscon- sin, 228 U. S. 115, 134, 57 L. Ed. 754, 33 Sup. Ct. 431, discussing the meaning of 'original pack- age," and reversing McDermott V. State, 143 Wis. 18, 126 N. W. 888; State v. Intoxicating Liqu- ors, 104 Me. 502, 71 Atl. 758; State v. 18 Casks of beer, 24 Okla. 786, 104 Pac. 1093; Ameri- can Exp. Co. V. Miller, 104 Miss. 247, 61 So. 306, 45 L. R. A. (N. S.) 120; Crescent Brewing Co. V. Oregon S. L. R. Co., 24 Idaho 106, 132 Pac. 975; Kirkpatrick V. State, 138 Ga. 794, 76 S. E. 53; State v. Miller, 66 W. Va. 436, 66 S. E. 522. By Act of Con- gress passed over the Presi- dent's veto by the Senate Feb- ruary 28, 1913, and by the House March 1, 1913, known as the Webb-Kenyon Act. it was en- acted, — "That The shipment or transportation, in any manner or by any means whatsover, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one state, territory, or district of the United States, or place noncon- tiguous to but subject to the ju- risdiction thereof, into any other state, territory, or district of the United States, or place noncon- tiguous to but subject to the ju- risdiction thereof, which said spirituous, vinous, malted, fer- mented, or other intoxicating liquors is intended, by any per- son interested therein, to be re- ceived, possessed, sold, or in any manner used, either in the orig- inal package or otherwise, in violation of any law of such state, territory, or district of the United States, or place noncon- tiguous to but subject to the jurisdiction thereof, is hereby prohibited." Appendix N. post. For discussion or this Act see Atkinson v. Southern Exp. Co., 94 S. C. 444, 78 S. E. 516, 48 L. R. A. (N. S.) 349; Atkinson v. Southern Exp. Co., 94 S. C. 457, 78 S. E. 520; Adams Exp. Co. v. Commonwealth, 154 Ky. 462, 157 S. W. 908, 48 L. R. A. (N. S.) 342; State v. Grier, 88 Atl. 579; United States v. Oregon & W. R. & Nav. Co., 210 Fed. 378. War time prohibition valid. Hamil- ton V. Kentucky Distilleries and Warehouse co., 251 U. S. — , 64 L. Ed. — : 40 Sup Ct. — . Trans- portation by automobile violates Reed Amendment. United States V. Simpson 252 U. S. — , 64 L. Ed. — , 40 Sup. Ct. — . § 59] Engaged, in Interstate Commerce. 271 by taxing the receipts of such commerce.'" But the fact that a corporation is engaged in interstate commerce does not exempt its property located in a state from taxation by the state."'' "It is the commerce itself which must not be bur- Lotteries: Carriage of Lottery tickets by a common carrier in interstate commerce may be prohibited by Congress, Lottery case, Cliampion v. A-oies, 188 U. S. 321, 47 L. Ed. 492, 23 Sup. Ct. 321. See also, Francis V. United States, 188 U. S. 375, 47 L. Ed. 510, 23 Sup. Ct. 334; Northern Securities Co. v. United States, 193 U. S. 197, 48 L. Ed. 679, 24 Sup. Ct. 436; United States v. Northern Se- Galley 59. 26367. Templeton curities Co., 120 Fed. 721; United States v. Whelpley, 125 Fed. 617; State v. Lowry (Ind.), 166 Ind. 372, 77 N. E. 728, 4 L. R. A. (N. S.) 532; People v. A, Booth & Co.. 42 Misc. 331, 86 N. Y. Supp. 272; Re Gregory, 219 U. S. 210, 55 L. Ed. 184, 31 Sup. Ct. 143. For a discussion by the Supreme Court of the principles of the text and citing authorities, see Sligh v. Kirk- wood, 237 U. S. 52, 59 L. Ed. 835, 35 Sup. Ct. 501. Blue Kktj Law held invalid. Alabama & N. O. Transp. Co. v. Doyle, 210 Fed. 173; Compton v. Allen, 216 Fed. 537; citing cases. State Blue Sky Laws valid prior to Congress- ional action. Merrick v. Halsey & Co. 242 U. S. 568, 61 L. Ed. 498, 37 Sup. Ct. 227; Hall v. Gelger-Jones Co., 242 U. S. 539, 61 L. Ed. 480, 37 Sup. Ct. 217; Cald- well V. Siouz Falls Stock Yards Co., 242 U. S. 559, 61 L. Ed. 493, 37 Sup. Ct. 224. Inspection Laws. Oyster inspection law held invalid as an interference with interstate commerce. Foote V. Stanley, 232 U. S. 494, 58 L. Ed. 698, 34 Sup. Ct. 377; pedd- ler's license law invalid, Stewart V. Michigan, 232 U. S. 665, 58 L. Ed. 786, 34 Sup. Ct. 47B. An ad- ditional tax on sales where pro- fit sharing coupons are given is valid. Rast v. Van Deman & Lewis Company, 240 U. S. 342, 60 L. Ed. 679, 36 Sup. Ct. 370. Migratory Bird Law. State stat- ute not in conflict with Federal statutes. Carey' v. South Dakota, 250 U. S. — , 63 L. Ed. — , 39 Sup. Ct. — . Federal statute in- valid, United States v. McCul- lagh, 221 Fed. 288. 343.. Galveston, H. & S. A. Ry. Co. V. Texas, 210 U. S. 217, 52 L. Ed. 1031, 28 Sup. Ct. 638; Western Union Tel. Co. v. Kan- sas, 216 U. S. 1, 54 L. Ed. 355, 30 Sup. Ct. 190; Pullman Co. v. Kansas, 216 U. S. 56, 54 L. Ed. 378, 30 Sup. Ct. 282; Minnesota Rate Cases, 230 U. S. 352, 400, 57 L. Ed. 1511, 33 Sup. Ct. 729, and previous cases therein cited 344. United States Express Co. V. Minnesota, 223 U. S. 335, 56 L. Ed. 459, 32 Sup. Ct. 211; Kansas City M. & B. R. Co. v. Stiles, 242 U. S. Ill, 61 L. Ed. 176, 37 Sup. Ct. 58; Internation- al Paper Company v. Massa- chussets, 246 U. S. 13.5, 62 L. Ed. 624, 38 Sup. Ct. 292; Cheney Bros. Co. V. Massachusetts, 246 U. S. 147, 62 L. Ed. 632, 38 Sup. Ct. 295; Locomobile Co. v. Mas- sachusetts, 246 U. S. 146, 62 L. Ed. 631, 38 Sup. Ct. 298. :i/_; State Regulation of Carriers. [§ CO dened by state exactions which interfere with the exclusive federal authority over it. A resort to the receipts of property or capital employed in part at least in interstate commerce, when such receipts or capital are not taxed as such but are taken as a mere measure of a tax of lawful authority within the state, has been sustained." ^'^ States may not regulate interstate commerce, nor may they prohibit such commerce. They can, suljjject to this limitation, prohibit a foreign corporation from doing business in the state, although a state "may not fiay to a foreign corporation, you may do business within our borders if you permit your property to be taken without due process of law, or you may transact business in intrastate commerce subject to the regula- tory power of the state. To allow a state to exercise such authority would permit it to deprive of fundamental rights those entitled to the protection of the Constitution in every part of the Union." These general principles are stated and eases cited by Mr. Justice Day in Baltic Mining Co. v. Massachusetts, note 343, supra. Charging a license fee to automobiles using the roads of a state is analogous to levying a tax, and in the absence of Congres-sional action it is legal to charge such fee even as to automobiles moving in interstate commerce.""' § 60. Procedure to Test the Validity of State Regulations, — Neither the act of a state legislature nor the order of a 345. Baltic Mining Co. v. Stone-Tracy Co.. 220 U. S. 107, Massachusetts, 231 U. S. 68, 83, 162-5, 55 L. Ed. 389, 31 Sup Ct. 58 L. Ed. 127, 34 Sup. Ct. 15, 3.42; United States Exp. Co. v. affirming Baltic Mining Co. v. Minnesota, 233 U. S. 335, 56 L. Commonwealth, 207 Mass. 381, Ed. 459, 32 Sup. Ct. 211. See also 93 N. E. 831, Am. Cas. 1913 C. Ohio R. & W. R. Co. v. Dittey, 805; S. S. White Dental Mnfg. 232 U. S. 576, 58 L. Ed. 737, 34 Co. V. Commonwealth, 212 Mass. Sup. Ct. 372, affirming same 25, 98 N. E. 1056, 28 Am. styled case, 203 Fed. 537. Armour & E. Ann. Cas. 805; Maine v. & Company v. Virginia, 246 U. S. Grand Trunk Ry. Co., 142 U. S. 1. 62 L. Ed. 547, 38 Sup. Ct. 267. 217, 35 L. Ed. 994, 12 Sup. Ct. 346. See Sec. 58, supra, and 121; Provident Institution v. notes, and Hendrick v. Maryland, Massachusetts, 6 Wall., 73 U. 235 U. S. 610, 59 L. Ed. 385, 35 S. 632, 18 L. Ed. 904; Flint v. Sup. Ct. 140 and cases cited; § 60] Engaged, in Interstate Commerce. 273 state administrative body ean be final and conclusive as to what are equal and reasonable charges, rules and regulations. The carrier is entitled to have a judicial hearing as to the reasonableness of such rates, rules and regulations."" Making rates and prescribing regulations for the government of car- riers for the future is, however, a legislative act/" and courts may not set aside such rates or regulations unless they violate the constitutional rights of the carrier."*" When it is sought to avoid a rate or other requirement made by a state or under its authority, in the absence of a pre- scribed uiethod of procedure, the carrier affected may resort to a court of equity and ask for appropriate relief. The court resorted to may be a state court, or when diverse citi- zenship exists or a Federal question is involved, the United States District Court. On this subject, Mr. Justice Field said:'''" "Nor can it be said in such a case that relief is obtainable only in the courts of the state. For it may be laid down as a general proposition that, wheuever a citizen of a state can go into the courts of a state to defend his property against the illegal acts of its officers, a citizen of another state may invoke the jurisdiction of the federal courts to maintain a like defense. A state cannot tie up a citizen of another state, having propertj^ rights within its territory invaded by un- authorized acts of its own officers, to suits for redress in its own courts. Given a case where a suit can be maintained in the courts of the state to protect property rights, a citizen of another state may invoke the jurisdiction of the federal courts." If resort be had to a District Court of the United States. and application for an interlocutory injunction is presented, the hearing must be had before three Judges "of whom at Kane v. New Jersey, 242 U. S. 349. Sec. 47, supra: Trenton & 160, 61 L. Ed. 222, 37 Sup. Ct. 30. M. C. Traction Co. v. New Jersey 347. Chicago, M. & St. P. R. Public Utility Comr's., 229 Fed. Co. V. Minnesota, 134 U. S. 418, 140; Ann Arbor R. Co. v. Fel- 33 L. Ed. 970, 10 Sup. Ct. 462. lows, 236 Fed. 387. 348. Prentis v. Atlantic C. L. 350. Reagan v. Farmers L. & R. Co., 211 U. S. 210, 53 L. Ed. T. Co., 154 U. S. 362, 391, 38 150, 29 Sup. Ct 67. L. Ed. 1014, 14 Sup. Ct. 1047: 274 State Regulation of Carriers. [§ GC) least one shcill be a Justice of the Supreme Court or a Cir- cuit Judge," and a direct appeal may be taken to the Su- preme Court of the United States from an order granting or denying after notice and hearing an interlocutory injuuc- tion>=^^ A state otificer Avhose duty it is to enforce the statute or administrative regulation claimed to be invalid, is a proper party to a proceeding for injunction,^^^ Some states provide for a review of the action of their Commissions, and when there is such provision a suit for injunction should not be commenced until the rate or regula- tion has been fixed by the body having the last word/" Suit may be filed by the states for penalties or mandamus may be brought to compel obedience to the orders of the state regulating body."" To such suits defense may be made and, where a right claimed under the Constitution or laws of the United States is denied, "and the decision is against the title, right, privilege or immunity especially set up or claimed," ultimate appeal may be taken to the Supreme Court of the United States/" Piatt V. Lecocq, 158 Fed. 723, 85 C. C. A. 621, where Judge San- born says: " Rights created and remedies provided by the ^stat- utes of a state to be pursued in the state courts jnay be enforced and administered in tlie national courts, either at law or in equity as the nature of the rights and remedies may require. "A party by going into a national court does not lose any right or ap- propriate remedy of which he might have availed himself in the state courts of the same lo- cality." Davis V. Gray, 16 Wall 83 U. S. 203, 21 L. Ed. 447; Darragh v. H. Wetter Mnfg. Co., 23 C. C. A. 609, 617, 78 Fed. 7, 14; National Surety Co. v. State Bank, 56 C. C. A. 657, 6G7, 120 Fed. 593, 603, 61 L. R. A. 394; Barber Asphalt Co. v. Mor- ris, 66 C. C. A. 55, 59, 132 Fed. 945, 949, 67 L. R. A. 761." 351. Judical Code, sec. 266, amended by Act. Mar. 4, 1913, Chap. 160, 37 Stat. L. 1013; Louisville & N. R. Co. v. R. R. Com. of Alabama, 208 Fed. 35, post Sec. 465. 352. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714. 28 Sup. Ct. 441; Cent, of Ga. Ry. Co. v. Mc- Lendon, 157 Fed. 961. 353. Prentis v. Atlantic C. L. R. Co., 211 U. S. 210, 53 L. Ed. 150, 29 Sup. Ct. 67. 354. Southern Ry. Co. v. At- lanta Stove Works, 128 Ga. 207, 57 S. E. 429. 355. Judicial Code, sec. 237. CHAPTER II. VALIDITY AND SCOPE OF THE ACT TO REGULATE COMMERCE. § 61. Common Law Obligations of Common Carriers. 62. Power of Congress over Interstate Commerce. 63. Constitutionality of the Act to Regulate Commerce. 63a. Same Subject. Transportation Act 1920. 64. Reasons for the Act to Regulate Commerce. 65. Carriers Included in the Act. 66. Carriers' Duties under the Act. 67. What Transportation Included in the Act. 68. Transportation Included in the Act, continued. 69. Same Subject. 70. Powers and Procedure of the Interstate Commerce Commission. 71. Same Subject. 72. Switch Connections. 73. Damages and Penalties for Misquoting a Rate. 74. Penalties. 75. Investigations by the Interstate Commerce Commission. 76. Additional Power Given the Interstate Commerce Commission. 77. Commission May Suspend an Advance in Rates. 78. Report of Carriers. 79. Court Procedure with Reference to the Orders of the Commission. § 61. Common Law Obligations of Common Carriers. — The duty of a common carrier to transport at reasonable rates existed at eonunon law.' Tliis was and is true because the business of carriage for the public is one of a quasi public nature and the charges therefor are subject to regulation by the public. In the Abilene case," Mr. Justice White, delivering the opinion of the court said: 1. Tift v. Southern Ry. Co., jurisprudence does not leave him 123 Fed. 789. The Circuit Court remediless, and that where an expressed the idea in the fol- action at law is inadequate a lowing apt language: "And so remedy in equity must and does we are of opinion that the right exist, McLean Lumber Co. v. of a shipper to have his prop- United States, 237 Fed. 460, 466." erty carried at a reasonable rate 2. The Abilene Case, Texas & in the transaction of his business Pacific Railway Co. v. jVbilene is a right of property, that to en- Cotton Oil Co., 204 U. S. 426, 51 force such right our system of L. Ed. 553. 27 Sup. Ct. 350. 9 (275) 276 Validity and Scope of The Act. [>§, 61 "AVithout going into detail it may not be doubted that at common law, where a carrier refused to receive goods of- fered for carriage except upon the payment of an unreason- able 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 agree- ment as to the price to be paid and made an unreasonable exaction as a condition of the delivery of the goods, an action could ])e maintained to recover the excess over a reasonable charge. And it may further be conceded that it is now set- tled that even where, on the receipt of goods by a carrier, an exorbitant charge is stated and the same is coercively exacted either in advance or at the completion of the service, an action may be maintained to recover the overcharge. 2 Kent. Comm. 599, and note A ; 2 Smith Lead. Cas., pt. 1, 8th Ed., Hare & Wallace Notes, p. 457." The principle of the right of organized society to regulate the rates and practices of carriers was recognized at least as early as the date of the laws of Hammurabi, King of ancient Babylon,^ and the same principle appears in the common law. The application of the principle is traced in the opinion of Chief Justice Waite in Munn v. Illinois/ wherein the reason therefor is stated to be that where "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." It has been hold by the Supreme Court of the United States that rates charged in contracts of fire insurance may be re- gulated by state laws, the basis for the decision bleing that when a business by its circumstances and nature rises from a private to a public concern, such business becomes subject to governmental regulation.^ Ann. Cas. 107.5. See also Penn. summary of str.te legislation reg- R. Co. V. Puritan Coal Co., 237 ulating public utility corpora- U. S. 121, 59 L. Ed. 867, 35 Sup. tions, see Interstate Com Com. Ct. 484. V. C. N. O. & T. P. Ry. Co., 167 3. Stephens v. Central of Ga. U. S. 479, 495, 496, 42 L. Ed. 243, Ry. Co., 138 Ga. 625, 628, 75 S. 17 Sup. Ct. 896, and Simpson v. E. 104, 42 L. R. A. (N. S.) 541, Shepard, 230 Ll. S. 352, 412-417 1913 E. Ann. Cas. 609. inc., 57 L. Ed. J 511, 33 Sup. Ct. 4. Munn v. Illinois, 94 U. S. 729. 4 Otto 113. 24 L. Ed. 77. For 5. German Alliance Ins. Co. v. § CiQj] To Reculate Commerce. 277 Tlnjiist cliseriniinatinn was also illegal at common law. The Supreme Court has aiiproved a charge substantially to the effect that not every discrimination in rates is unjust, and that in order to constitute an unjust discrimination, there must be a differeufe in rates under substantially similar conditions as to service. All rates must be reasonable ; and, under like conditions, all patrons must be served on equal terms. While there is no body of federal common law sep- arate and distinct from the common law existing in the several states, the principles of the common law are operative upon all interstate commercial transactions, except so far as they. are modified by congressional enactment.' § 62. Power of Congress over Interstate Commerce. — Para- graph 3, Section 8, Article 1, of the Constitution of the United States contains the grant of power to Congress over inter- state commerce and gives Congress the power "to regulate commerce with foreign nations, among the several states, and with the Indian tribes." Thp limitation of the scope of this book and a general statement of the extent of the regulatory power of the federal government have been stated in Chapter I, supra. There it was shown that the power of Congress over interstate com- merce was plenary and indivisible. That the power to regulate interstate commerce is complete in Congress has never been doubted. Mr. Chief Justice Mar- shall stated this power in language which has frequently been cited with approval. He said:' "We are now arrived at the inquiry. What is this poAver? It is the power to regulate ; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exer- cised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution. ... If. as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those ob- Lewis, 233 U. S. 389, 58 L. Ed. 7. Gibbons v. Ogden. 9 Wheat, 1011, 34 Sup. Ct. 612. . 22 U. S. 1, 6 L. Ed. 23, 70. See, 6. Western Union Tel. Co. v, also, Howard v. Illinois Cent. R. Call Pub. Co., 181 U. S. 92, 45 Co.. 207 IT. S. 463, 492, 493, 52 L. Ed. 765, 21 Sup. Ct. 561. L. Ed. 297, 307, 28 Sup. Ct. 141. 278 Validity and Scope of The Act. [§ 62 jects, the power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government, having in its constitu- tion the same restrictions on the exercise of the power as are found in the Constitution of the United States." This broad statement of the power of Congress has been re- peatedly aflfirmed and the principle applied. Congress, in the A'it to Regulate Commerce, and the acts amendatory thereof and supplementary thereto, has not, as was shown in Chapter I hereof, as yet exercised its full constitutional power. In the laws regulating the liability of employers in interstate transportation Congress has fully occupied the field, and the decisions with reference to the scope of these laws are not ahvays applicable to the statutes regulating interstate trans- portation generally.* The proviso to Section 1 of the Act to Regulate Commerce exempts from the provisions of that act intrastate transporta- tion.® This exemption, however, does not leave the states free so to regulate intrastate transportation as to affect inter- state transportation. This question was presented to the Interstate Commerce Commission, which held that certain Texas intrastate rates prescribed under authority of the stat- utes of Texas and maintained by carriers serving both Texas and Louisiana, were violative of Section 3 of the Act to Regu- late Commerce, in that such rates constituted undue and unreasonable prejudice against shippers in Louisiana and gave an unreasonable preference to shippers in Texas. The Com- mission ordered the carriers to desist from this discrimina- tion.** This order was sustained by the Commerce Court, and an appeal taken to the Supreme Court."^* Both in the opin- ion of the Commission and in that of the Commerce Court, mention was made of the fact that the carriers had not resisted in the courts the rates prescribed by the Texas Rail- road Commission. This fact seems not to have been regarded as material by the Supreme Court, which Court upheld the 8. Sec. 332 posf, as to Employ- 11. Tex. & Pac. R. Co. v. U. S., ers' Liability Laws. 205 Fed.. 380, Op. Com. Ct. No. 9. Sec. 336, post. 68, p. 655; Houston E. & W. T. 10. Railroad Com. of La. v. St. R. Co. v. U. S., 205 Fed. 391. Op. L. S. W. Ry. Co., 23 I. C. C. 31. Com. Ct. No. 67, p. 653. § 6'2] To Regulate Commerce. 279 order of the Commission on the broad ground that any unjust discrimination however caused was prohibited bjy Congress, and that no state could lawfully require the maintenance of transportation rates within the state which unjustly discrim- inated against interstate shippers. The Court in a convinc- ing opinion held that where injurious discrimination resulted from state made intrastate rates, Congress is not bound to reduce interstate rates below what it may deem to be a proper standard, fair to the carrier and to the public; but that Con- gress, and by Congress is included tribunals authorized to act in prescribing rates, is entitled to maintain its own stan- dard of interstate rates. '^ Oklahoma, Arkansas and Missouri, maintaining intrastate passenger rates of two cents a mile, brought complaint be- fore the Interstate Commerce Commission alleging that the interstate passenger rates of three cents a mile into and through these states were unreasonable and discriminatory. The Interstate Commerce Commission, having found that the evidence failed to show that the interstate rates were unrea- sonable, dismissed the complaint. In the course of the opin- ion it Avas said:'' "That rates established by state laws or state authorities, prescribing the charge for intrastate transportation of per- sons and property, are facts that we consider, and that we respect the authority establishing such rates constitute no valid reason relieving us from performing the duties devolv- ing upon this Commission under the Constitution and laws of the United States. The Constitution of the United States reserves to Congress the power to regulate interstate com- merce, and Congress, under this grant of authority, has im- posed upon this Commission certain duties. If any rate for transportation M^holly within a state may be made the meas- ure of the rates when that transportation moves from one state through or into another, the interstate rate so resulting would not be regulation of interstate commerce by the au- 12. Houston E. & W. T. R. Co. v. A. T. & S. F. Ry. Co. ct al, V. U. S., 234 U. S. 342, 58 L. Ed. 31 I. C. C. 522, 540, 541. See 1341, 34 Sup. Ct. 833. also Rates on Beer and Other 13. Corp. Com. of Okla. ct al. Malt Products, 31 I. C. C. 544. 280 Validity and Scope of The Act. [§ 63 thority prescribed by the Constitution, but by the state. If the function of this Commission be to compute the sum of intrastcite rates and prescribe the result as a measure of the interstate rates, actual and direct regulation of interstate commerce by the states would be the result. That in the regulation of interstate commerce by the general government and of intrastate commerce by the state governments there result inconveniences and anomalies, such as is contended to exist here, might be conceded ; but such facts, if they exist, neither deprive us of the power nor relieve us from the duty of performing the obligations imposed upon us by laws of Congress authorized by the Constitution of the United States. "Were we at liberty and inclined to abdicate the authority and abandon the duty imposed upon us by accepting the sum of state rates as a measure of interstate rates, the diffi- culty would not be removed." Transportation Act 1920 in substance adds nothing to the power of the Commission over intrastate rates. The statute in this respect does no more than to prescribe certain rules of procedure and to recognize rules of law theretofore applied by the Commission. § 63. Constitutionality of the Act to Regulate Commerce. — The constitutional grant of power to regulate commerce with foreign countries and between the states is plenary. The absence of this power was, as is well know^n, one of the principal reasons for dissatisfaction with the confederacy ex- isting prior to the adoption of our constitution. Just what powers could be constitutionally delegated or given to the commission was the question to be determined by the framers of the acts to regulate commerce. It has been held that to prescribe rates for the future is a legislative power, to deter- mine whether or not a rate is reasonable is a judicial ques- tion.'* The legislature of a state may directly prescribe maxi- mum rates, or such power may be delegated to a commission." 14. Chicago M. & St. P. R. Co. 15. Munn v. Illinois, 94 U. S. V. Minnesota, 1.34 U. S. 418, 33 4 Otto 113, 24 L. Ed. 77; Stone L. Ed. 970, 10 Sup. Ct. 462, 702. v. Farmers L. & T. Co., 116 U. Prentis v. Atlantic C. L. Co., S. 307, 29 L. Ed. 636, 6 Sup. Ct. 211 U. S. 210, 53 L. Ed. 150, 29 334, 1191; Georgia R. & B. Co. Sup. Ct. 67. <^ 63] To Regul.\te Commerce. 281 Prior to the amendment known as the Hepburn Act the In- terstate Commerce Commission was a mere administrative body, with no power to fix rates. It could make findings and declare a particular rate unreasonable, these findings were prima facie true and were entitled to the "strength due to the judgment of a tribunal appointed by law and in- formed by experience."" The original act was held to be valid by the Supreme Court.'' 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 of commerce, and which Congress may rightfully subject to investigation by a commission established for the purpose of enforcing that act, we are unable to say that its provisions are not appropriate and plainly adapted to the protection of interstate commerce from burdens that are or may be, directly or indirectly imposed upon it by means of unjust and unreasonable discriminations, charges, and prefer- ences. Congress is not limited in its employment of means to those that are absolutely essential to the accomplishment of objects within the scope of the powers granted to it. It is a settled principle "of constitutional la"w that 'the govern- ment which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dic- tates 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 ex- ception.' McCullough V. Maryland, 17 U. S. 4 Wheat. 316 (4 L. Ed. 579, 602). The test of the power of Congress is not the judgment 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 V. Smith. 70 Ga. 694, 128 U. S. 441, 454, 51 L. Td. 1128, 1134, 27 174, S2 L. Ed. 377. 9 Sup. Ct. 47. Sup. Ct. 700. 16. Illinois Cent. R. Co. v. In- 17. Interstate Com. Com., v. terslate Com. Com., 206 U. S. Brimson, 154 IT. S. 447, 38 L. Ed. 1047, 14 Sup. Ct. 1125. 282 Validity and Scope of The Act. [§ 63 of a power granted are forbidden by the constitntion. It can- not go beyond that inquiry without entrenching upon the domain of another department of government. That it may not do with safety to our institutions. Union Pac. R. Co. v. United States ("Sinking Fund Cases") 99 U. S. (9 Otto.) /OO, 718, 25 L. Ed. 496, 501." In United States v. DelaAvare & Hudson Co.," it was con- tended 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 constraed by the Supreme Court was held valid. On the question of the ett'ect 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. 128, we think it also suffices to say that even if the delay which the clause provided should elapse between its enactment and the going into effect of the saine does not absolutely exclude the clause from the ruling in Ex parte Young, a question Avhich 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 constitu- tionality of the clause relating to penalties is wholly separate from the remainder of the clause, and. therefore, may be left to he determined, should an effort to enforce such penalties be made. ' ' Subsequently the right to enforce this clause as construed Avas upheld by the Supreme Court." The constitutionality of 18. United States v. Delaware Sup. Ct. 65; United States v. & Hudson Co., 213 U. S. 366, 53 Delaware L. & W. R. Co., 238 L. Ed. 836, 29 Sup. Ct. 527. U. S. 516, 59 L. Ed. 1438, 35 Sup. 19. United States v. Lehigh V. Ct. 873. For a further history of R. Co., 220 U. 3. 257, 55 L. Ed. lititgation under this clause, see 458, 31 Sup. Ct. 387; Delaware United States v. Lehigh Valley L. & W. R. Co. V. United States, R. Co. (221 Fed. 399). 231 U. S. 363. r>S L. Ed. 269. 34 <^ G3] To Regulate Commerce. 283 the act generally was interestingly and accurately stated by Judge Severens at circuit in an opinion wherein he shows the necessity for Congress to adopt some such scheme as the Act 1o Regulate Commerce, and in which opinion he says :'° "It would have been impossible for Congress to have for- seen the multitude of questions depending upon the special facts presented sometimes in one complication and sometimes in another, and declare a single rule applicable to each." The Supreme Court has held that Section 20 of the Act to Regulate Commerce as amended by the Act of June 29, 1906"' is valid and not unconstitutional as a delegation of legislative power, and that the requirement that carriers doing both interstate and intrastate business should render to the Inter- state Commerce Commission accounts of all their business, was not beyond the power of Congress." The provision sub- jecting coi^porations to criminal prosecution is valid."'' In Honolulu R. T. Co. v. Hawaii"" 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 in- 20. Louisville & N. R. Co. v. 21. Post. See. 432. Interstate Com. Com., 184 Fed. 22. Interstate Com. Com. v. 118, 122. For opinion of the In- Goodrich Transit Co., 224 U. S. terstate Commerce Commission 194, 56 L. Ed. 729, 32 Sup. Ct. in this case see New Orleans 436, reversing the Commerce Board of Trade v. L. & N. R. Co., Court in Goodrich Transit Co. v. 17 I. C. C. 231. The Commerce Interstate Com. Com., Nos. 21, 22, Court set aside the order of the 23, 24 opinions of Commerce Court Commission, Avlthout however Oo, 190 Fed. 943. See also Kan- disagreeing w'th the circuit sas City Sou. Ry. Co. v. United judges as to the validity of the States, 231 U. S. 423, 58 L. Ed. Act to Regulate Commerce, Lou- 296, 34 Sup. Ct. 125, affirming ishville & N. R. Co. v. Interstate same styled case Opinions Com- Com. Com., 195 Fed. 541, Opin- merce Court No. 56, p. 641, 204 ions Commerce Court Nos. 4, Fed. 641. 325 and £75. For opinion! re- 23. New York C. R. Co., v. versing the Commerce Court: United States, 212 U. S. 481. 492, Interstate Com. Com. v. Louis- 53 L. Ed. 613, 29 Sup. Ct. 304, ville & N. R. Co., 227 U. S. 88, cited in United States v. Adams 57 L. Ed. 431, 33 Sup. Ct. 185. Exp. Co., 229 U. S. 381, 390, 57 See also United States v. Great L. Ed. 1237, U Sup. Ct. 878. N. R. Co., 157 Fed. 288, 291 24. Honolulu R T. Co. v. 284 Validity and Scope of The Act. [§ 63 A terest tliat it is subject, within constitutional limits, to the goveniinental 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 char- acter and may be exercised directly by the legislature itself. But the legislature may delegate 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 r. 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 question that the act itself answers. The danger of incurring ruinous penalties pointed out in the Young case does not exist in the Act to Regulate Commerce. In this act the rates pre- scribed by the commission become effective only after thirty days' notice, during which time the order fixing the rates may "be suspended or set aside by a court of competent juris- diction," if the rate prescribed b)e unlawful. The venue of suits "to enjoin, set aside, annul, or suspend any order or re- quirement of the commission" is fixed; and suits "may be brought at any tim.e after such order is promulgated.^^ It would seem that the carriers have full opportunity to test an order before feeling compelled by the possibility of penalties to obey it. The validity of the amended fourth section of the act was sustained in a forcible opinion of the Supreme Court. ^* § 63A. Same Subject— Transportation Act 1920.— The 1920 statute materialh^ enlarges the scope of the Commission's power. It confers the right to prescribe minimum as well Hawaii, 211 U. S. 282, 53 L. Ed. ing A. T. & S. F. Ry. Co. v. U. 186, 29 Sup. Ct. 55. S., 191 Fed. 856, Op. Com. Ct. 25. Sees. 15, 16, of Act to Regu- Nos. 50, 51, p. 229, and sustain- late Commerce. See post. 396 ing orders of the Commission in and 411. Railroad Com. of Nev. v. So. Pac. 26. United States v. A. T. & S. Co., 21 I. C. C. 329; Spokane F. Ry. Co., 234 U. S. 476. 58 L. City of v. N. P. Ry. Co., 21 I. C. Ed. 1408, 34 Sup. Ct. 986, revers- C. 400. § G3A] To Regulate Commerce. 285 as maximum rates; but such right is necessary fully to en- force the provision against unjust discrimination, and there is no reason to doubt the constitutionality of the provision. Elaborate provision is made for the adjustment of labor controversies. Many of these provisions are more or less lacking in force to compel obedience thereto. They do pre- scribe duties which probably are enforcible in courts of equity. That wages may be regulated was decided by the Supreme Court in sustaining the Adamson LaAv." The. constitutionality of tlie labor provision it is believed may be accepted. The Commission is given jurisdiction over car service; is given the right under certain circumstances, to prescribe the lines or mutes over Avhieh traffic shall move and it may re- (}uire the joint use of terminals. These powers are analogous to the jurisdiction heretofore existing under which cars could be required to be furnished, under Avhich routing has bicen controlled and under which through routes have been pre- scribed and physical connections required. The fundamental basis for these new enactments is similar to that supporting those powers which the Commission has long exercised, and such enactments are probably valid. In the provision permitting the consolidation of existing and competing railroads Congress has sought to permit State corporations to do what the laws of some of the States creat- ing the corporations prohibit. As to the few railroads chartered under Federal laws. Congress is nn doubt competent to permit or require a consolidation. The competency of Congress "To authorize such consolidations in defiance of state legislation." has been expressly denied in a dictum of the Supreme Court. In Northern Securities Case,"' this dic- tum is explained, and in discussing the explanation the Su- preme Court said-: "So far as the Constitution of the United States is concerned, a state may, indeed, create a corporation, define its powers, prescribe the amount of its stock and the mode in which it may be transferred. It may even authorize one of its corporations to engage in commerce of every kind. 27. Wilson v. New, 243 U. S. 28. Sec. 11, ante, and note 332, 61 L. Ed. 755, 37 Sup. Ct. thereto. 298. 286 Validity and Scope of The Act. [§ 63 A — domestio. interstate and international." The state creates the instrumentality but Avhen the instrumentality enters the field of interstate commerce, the powers of congress may be exercised. The Supreme Court further discussing the question said: "Whilst every instrumentality of domestic commerce is subject to state control, every instrumentality of interstate commerce may be reached and controlled by national author- ity, so far as to compel it to respect the rules for such com- merce lawfully established by Congress." The plenary power of Congress to regulate interstate commerce can only b^e ef- fective by applying such power to the instrumentalities of such commerce, and notwithstanding the dictum quoted, this provision it is believed is within that power. The issuance of stocks and bonds is discussed in Section 51 ante and it is thought this provision giving power to tne commission to supervise such actions are valid. The right to operate a railroad with the power of eminent domain is a franchise which the sovereign power may withhold or grant on terms. Therefore, as to roads that have devoted their instrumentalities to the service of interstate commerce, the provisions regulating new construction and the discontinu- ance of existing facilities are within the constitutional grant to the Federal legislature. The right to regulate rates includes the right to fix the measure of returns on capital. So the Congress, or when authorized the Commission, may legally say that such returns shall be 5 ; or 6 per centum. What particular per centum shall be prescribed is a legislative question, and if not made so high as to deprive a shipper of his constitutional property right to a service at a reasonable price, or so low as to amount to a taking of the property of the carriers, courts will not interfere. Where the Act, as here, requires that all rates shall be reasonable and shall yield a "fair return;" that some carriers, receiving only these reasonable rates, may make more than the prescribed percentum, does not authorize Congress to make any disposition of the excess. If the rate is reasonable, the proceeds belong to the carrier who per- formed the service. If the rate is unreasonable, the excess over a reasonable rate belongs to the shipper. It is, there- fore, believed that the provisions of Section 422 of the Trans- § 64] To Regulate Commerce, 287 portation Act, Section 15a of the Interstate Commerce Act are unconstitutional, in violation of the Fifth Amendment insofar as they authorize the Commission to receive and dispose of any of the railway operating income of the car- riers. The statutory provisions relating to intrastate rates, when there is unjust discrimination aside from some procedural direction, but enumerates principles which the courts have said already existed;'* and the slight change in the long and short haul provision of section 4 of the Interstate Commerce Act does not affect the validity thereof. § 64. Reasons for the Act to Reg-ulate Commerce. — Prior to the act of Fel)ruary 4, 1887,^" carriers Avere 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 individuals to prevent irreparable damage or give redress for unreasonable or unjustly 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. While ehippers of merchandise are under no legal necessity to use railroads, practically they are. The demand for speedy and prompt movement virtually forbids the employment of slow and old-fashioned methods of transportation, at least in the case of the more valuable articles of traffic. At the same time, the immense outlay of money required to build and maintain railroads, and the necessity of resorting, in securing the rights of way, to the power of eminent domain, in effect prevent individual merchants and shippers from themselves 29. Sees. 44 and 62, ante. Call Pub. Co., 181 U. S. 92. 45 30. Chapter 9, i^ost. L. Ed. 765, 21 Sup. Ct. 561; 31. Texas & P R. Co. v. Abi- United States v. Michigan Cent, lene Cotton Oil Co., 204 U. S. 426, R. Co., 122 Fed. 544. 51 L. Ed. 553, 27 Sup. Ct. 350, 9 32. Texas & P. R. Co. v. Inter- Ann. Cas. 1075; Tift v. Southern state Com. Com., 162 U. S. 197, Ry. Co., 123 Fed. 789, 138 Fed. 210, 211, 40 L. Ed. 940, 944, 945. 753; Western [Jnion Tel. Co. v. 16 Sup. Ct. 666, 5 I. C. R. 405. 288 Validity and Scope of The Act. [§ 64 providing snch 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 them- selves, and were the cause of loud complaints The com- panies owning the railroads were charged, and sometimes truthfully, with making unjust discriminations between ship- pers 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 op- pression of entire communities. "Some of these mischiefs were partially remedied by special provisions inserted in the charters of the companies and by general enactments 1iy the several states, such as clauses restricting the rates of toll and forbidding railroad com- panies from becoming concerned in the sale or production of articles carried and from making unjust preferences. Re- lief, to some extent, was likewise found in the action of the courts in enforcing the principles of the common law appli- cable to common carriers — particularly that one which re- quired uniformity of treatment in like conditions of service. "As, however, the powers of the states were restricted to their own 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 de- mand that Congress, in the exercise of its plenary power over the subject of foreign and interstate commerce, should deal with the evils complained of h^/ a general enactment, and the statute in question was the result." Amendatory and supplemental acts have enlarged the powers of the Commission, but these additions to the Commission's powers under the Interstate Commerce Act have had in view the purpose to prevent discrimination and to require cer- tainty and stability in the rates charged. The amendment authorizing the supervision and standardization of the ac- counts of carriers'" had for its purpose to enable the Com- mission better to perform its duties respecting the regulatioii of carriers."^ S3. Sec. 433, ^^osi. United States, 231 U. S. 423, 5& 34. Kansas City S. Ry. Co. v. L. Ed. 296, 34 Sup. Ct. 125. § 05] To Regulate Commeece, 289 Tn the jMiniiesota Rate Cases," the fact that the purpose of the Act was not to include intrastate transportation was definitely stated. The Minnesota Rate Cases dealt Avith the question of the constitutionality of rates prescribed by state authority ap- plicable only within the state. A different question is pre- sented when there is involved the relationship of interstate rates with intrastate rates. When such a. question is pre- sented, as was held in the Shreveport case supra (Sec. 62), the state rates must not unlawfully discriminate against in- terstate shippers, and Avhen they do the Interstate Commerce Commission may grant relief. § 65. Carriers Included in the Act. — The original act ap- plied only to transportation wholly by railroad, or partly by railroad and partly by water. Included in the definition of railroads are bridges, ear floats, lighters, and ferries used or operated in connection therewith, the line in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease, and all instrumentalities of shipment or carriage. The present act extends the law to apply to the transportation of oil or other commodities, ex- cept water and gas, by means of pipe lines or partly by pipe lines and partly by rail or water, and includes express com- panies, telegraph, telephone and cable companies, whether wire or wireless; all switches, spurs, tracks, terminals and terminal facilities of every kind used or necessary in the transportation of the persons or property designated, and also all freight dcjiots, yards, and grounds, used or necessary in the transportation or delivery of any of said property; ears and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof, and all services in connection with the receipt, delivery, elevation 35. Simpson v. Shepard, 230 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. S. 352, 57 L. Ed. 1511. 33 Sup. Ct. 428; United States v. Pacific & 729. For statement as to the pur- A. Ry. & Nav. Cc, 228 U. S. 87, pose of the acts original and 108, 57 L. Ed. 742, 33 Sup. Ct. amendatory, see Armour Pack- 443. ing Co. V. United States, 209 U. 290 Validity and Scope of The Act. [§ 65 and transfer in transit, ventilation, refrigeration or icing, storage and handling of property transported. Tender the act, foreign carriers engaged in transporting be- tween points within and points without the United States are subject to the regulations i^rescribed ;'"' water carriers are subject thereto when the transportation is partly by rail and partly by w^ater, when both being under a common con- tract, management or arrangement for a continuous carriage or shipment."' Tender the Panama Canal Act,^* of August 24. 1912, the Commission is given jurisdiction over the transporta- tion of rail and water carriers when property is transported from point to point in the T"fnited States by rail and water, through the Panama Canal or otherwise. The extent of this jurisdiction is stated in the act, and the Commission has exercised the jurisdiction thus conferred.^' A corporation organized to construct and maintain a bridge across a river running between tw-o states, and which corporation owns no cars, but merely furnishes a highway over which common carriers and others may transport goods, was held not to be within the provisions of the act." Carriers by water betw^een ports of dififerent states under joint rates with railroads, w-hich rates are filed with the Interstate Commerce Commission, are within the purview of 36. Re Investigation of Acts movement between Canada and Grand Trunk Ry. of Canada, 3 the United States, which is in the I. C. C. 89, 2 I. C. R. 496. A United States. Emery & Co. v. rate, however, made by the Cana- B. Q. M. R. R., 38 I. C. C. 636; dian Commission applicable in Lake and Rail Rate Cancella- Canada — though part of the tions, 44 I. C. C. 745; Carlowitz through rate from the United & Co. v. C. P. R. Co., 46 I. C. C. States to Canada — is not within 290. the jurisdiction of, the Commis- 37. Sec. 335, post. sion. International Paper Co. v. 38. Sec. 375, post. D. & H. Co., 33 I. C. C. 270. 39. Sec. 224 and 375, post. Au- For a full discussion of this suh- gusta & Savannah S. S. Co. v. O. ject, see Carey Mfg. Co. v. G. S. S. Co., 26 I. C C. 380. T. W. Ry. Co., 36 I. C. C. 203. 40. Kentucky S I. Bridge Co. Over shipments exclusively in v. Louisville & N. R. Co., 37 Fed. Canada, the Commission has no 567, 617, 2 L. R. A. 289, 2 I. C. jurisdiction, but it has jurisdict- R. 351. tion of that part of a through § G5] To Regulate Commerce. 291 the Act to Regulate Commerce, although such carriers are incorporated under the laws of a particular state." In tlie Pipe Line cases'' the Supreme Court sustained the jurisdiction of the Commission over pipe line carriers trans- porting oil in interstate commerce. A terminal company, part of a railroad and steamship system, is within the act," and so is a rate between points in the same state which includes delivery on , boat for inter- state transportation." A stock yard company, owning and operating a railroad system which transports cars to and from trunk lines which operate cars in interstate transportation, is within the act." That street raihvays were not included within the law prior to the Amendatory Act of June 18, 1910,*" has been deter- mined by the Supreme Court, although the effect of that act on the question was left undecided.*' 41. Interstate Com. Com. v. Goodrich Transit Co., 224 U. S. 194, 56 L. Ed. 729. 32 Sup. Ct. 436, reversing Goodrich Transit Co. V. Interstate Com. Com., 190 Fed. 943, Commerce Court Opin- ions 21 to 24, p. 95. Within the meaning of the Anti-Trust stat- utes, tugs employed in towmg vessels engaged in interstate commerce are themselves instru- mentalities of such commerce, United States v. Great Lakes Towing Co., 208 Fed. 733. Where there is no common or joint ar- rangement, water carriers held not within the Act, Mutual Tran- sit Co. V. United States, 178 Fed. G(;4, except as provided in the Panama Canal Act, supra. 42. United States v. Ohio Oil Co., 234 U. S. 548, 58 L. Ed. 1394, 34 Sup. Ct. 956. 43. Southern Pacific Terminal Co. v. Interstate Com. Com., 219 U. S. 498, 55 L. Ed. 310, 31 Sup. Ct. 279. 44. R. R. Com. of Ohio v. Worthington, 187 Fed. 965. 110 C. C. A. 85. See also, Note 58, post. 45. United States v. Union Stock Yards, 226 U. S. 286, 57 L. Ed. 226. 33 Sup. Ct. 83; Union Stock Yard & Transit Co. v. United States, 192 Fed. 330, Com- merce Court Opinion No. 15, pp. 189 and 225. See also Manufac- turers Ry. Co. V. St. Louis I. M. & S. Ry. Co., 21 I. C. C. 304 and cases cited. 46. Post, Sec. 337. 47. Omaha & C. B. Street Ry. Co. V. Interstate Cora. Com., 230 U. S. 324, 57 L. Ed. 1501, 33 Sup. Ct. 890, 40 L. R. A. (N. S.) 385 reversing same styled case, 191 Fed. 40, Commerce Court Opinion No. 25, p. 147, and affirming same styled case. 179 Fed. 243, and setting aside order of Interstate Commerce Commis- sion in West End Improvement Club V. Omaha & C. B. Street Ry. Co., 17 I. C. C. 239. See also Wil- 292. Validity and Scm3pe of The Act. [^ G6 The commission has frequently acted under the power granted it over express companies, which are now specifically included." The Act to Regulate Commerce is, however, not so broad as the Safety Appliance and Employers' Liability Acts, and Congress has expressly, by the proviso to Section 1, excluded intrastate commerce.'" § 66. Carriers' Duties under the Act. — It is the duty of every carrier subject to the provision of the law to provide and furnish transportation upon reasonable request therefor, and to establish through routes and .just and reasonable rates applicable thereto. All charges made for any service rendered or to l)e rendered in the transportation of passengers or property and for the transmission of messages by telegaph, telephone or cable, as aforesaid, or in connection therewith, shall be just and reasonable ; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful. Just and reasonable regulations and practices affecting classification of commodities must be established, observed and enforced. Railroads are prohibited from transporting certain com- modities in which they are interested. Switch connections, under certain circumstances, must be made with other car- riers and with shippers. Rebates and other forms of dis- crimination are prohibited. Undue and unreasonable prefer- ences to persons, places or particular kijids of traffic are illegal ; and. except in special cases, no greater charge shall be made for a shorter than a longer haul, the shorter being sen v. Rock Creek Ry. Co., 7 I. Exp. Co., 229 U. S. 381, .57 L. C. C. S.3., and see South Covington Ed. 12.37, 33 Sup. Ct. 878. R. Co. V. Covington, 235 U. S. 49. Pacific C. Ry. Co. v. United 537, 59 L. Ed. 350, 35 Sup. Ct. 15S. States. 173 Fed. 448; United 48. American Exp. Co. v. Unit- States v. Union Stock Yards Co., ed States, 212 U. S. 522, 53 L. E:l. 192 Fed. 330, 339, Commerce 635, 29 Sup. Ct. 31E'; Barrett v. Court Opinion No. 15, p. 189, 225; New York City, 183 Fed. 793. Simpson v. Shepard, 2S0 U. S. Nor does it make any difference 352, 57 L. Ed. 1511, 33 Sup. Ct. that the company is not a cor- 729; Sec. 61, stipra. poraticn, United States v. Adams <^ 60] To Rkgut^te> Commerce. 293 included in the longer. Transportation of freight must be continous. pooling is regarded, and rates are required to be published, i)f)sted and maintained. Transportation Act 1920 adopted and amended the Car Service Act prescribing in detail the duties of railroads with reference to furnishing and distributing cars.^" The 1920 Act also restricted the freedom of the carriers in constructing new or extending old lines, regulated the issuance of stocks and bonds," and otherwise enlarged regulation and increased the power of the Commission.*" Carriers included in the Act must keep accounts according to requirements prescribed by the Commission, and must make reports to the Commission as required. '^^ 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 unreasonable rates, was to secure equality of rates to all, and to destroy favoritism, these last being accomplished by requiring the publications of tariffs, and by prohibiting secret departiu-es from such tarififs, and forbidding rebates, prefer- ences, 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." The Act, while repeating and adopting the common-law rule that rates should be reasonable, had as its principal purpose the prevention of unjust discrimination and undue and unrea- sonable preference. The shipper could protect himself more easily from unreasonable rates than he could from secret and 50. Transportation Act 1920, United States v. Adams Exp. Co.. Sec. 402, being paragraphs 10 to 229 U. S. 381, 57 L. Ed. 1237, 33 17 of Interstate Commerce Act, Sup. Ct. 878; Kansas City So. Sees. 344a to 344h, j^ost. Ry. v. United States, 231 U. S. 51. id. paragraphs 18 to 22, 423, 58 L. Ed. 296, 34 Sup. Ct. sees. 344i to 344m, post. 125. 52. See Chapter 9, j)ost. 54. New York N. H. & H. R. Co. 53. Post chapter 9. And see, v. Interstate Con;. Com., 200 U. Interstate Com. Com. v. Good- S. 361, 391, 50 L. Ed. 515, 521, rich Transit Co., 224 U. S. 194, 26 Sup. Ct. 272. 56 L. Ed. 729, 32 Sup. Ct. 436; 294 Validity and Scope of The Act. [§ 67 ruinous diseriinination against him and preferences to his competitor. Equality of treatment and the "open gateway Ijolicy"^'"^ are sought to be obtained by the act. All the provisions of the original, amendatory and supple- mental acts regulating interstate transportation have as their purpose reasonable and non-discriminatory charges. To ef- fectuate these purposes the law prescribes rules and author- izes the Commission to make other rules and regulations by which the purposes may be accomplished. § 67. What Transportation Included in the Act. — The transportation included in the act is that "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 Dis- trict 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 * * * and car- ried from such place to a port of trans-shipment, or shipped from a foreign country to any place in the United States and earri.':'d to such place from a port of entry either in the United States or an adjacent foreign country." The above quotation is taken from section one of the original act, except the phrase applying to transportation between places in the same territory was added by the amendment of June 29, 1906.^° By the Act of 1910. telegraph, telephone and cable com- panies and the transportation of oil were included in the act.^' The Panama Canal Act extended jurisdiction to water carriers. The proviso of section one of the original act was retained in its original form'* until the Act of 1910. when it was changed in language but not in essential substance. Trans- portation Act 1920 made another change of form. In the 55. Rahway V. R. Co. v. Dela- see Prairie Oil & Gas Co. v. ware, L. & W. R. Co., 14 I. C. United States, 204 Fed. 798, C. 191, 194. And, see, also Rates Commerce Court Opinion. Act for Transportation of Anthracite held valid and Commerce C^l1rT Coal, 35 I. C. C. 220. 289. reversed; the Pipe Line Cases, 56. Common control, etc., dls- U. S. v. Ohio Oil Co , 2^.4 U. S cussed, Standard Oil Co. v. Unit- 548, 58 L. Ed. 1394, 34 Sup. Ct. ed States, 179 Fed. 614. For a 956. discussion of the provision re- 57. Post. Sec. 335. lating to transportation of oil. 58. Post. sec. 336. <§! G7] To Regulate Commerce. 295 original provision, the 1910 Amendment and in the 1920 Amendment intrastate commerce was excluded from the pro- visions of the statnte/* In 1920 Confess recognized what the Commission and the courts had already decided, that in- trastate rates unjustly discriminating against interstate com- merce could be regulated^ That this provision leaves to the states the regulation of in- trastate commerce has already been shown." The Daniel Ball"' is a case frequently cited and sometimes given a construction that is of doubtful correctness. The libel was brought by the Ignited 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, one being that the waters upon which the steamer plied were not "navigable waters of the United 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 states and also received freight in the state destined to points beyond. The language of Mr. 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." In the further course of the opinion it was said : "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 case relates to transportation on the navigable waters of the United States, and we are not 59. Sec. 336, post. 62. The Daniel Ball v. Unite-' 60. Sec. 393.b, post. States, 10 Wall., 77 U. S. 557, 19 61. Supra. Sec. 43. L. Ed. 999. 296 Validity and Scope of The Act. [§ 68 called upon to express an opinion upon the power of Congress over interstate commerce when carried on bi;^ land transporta- tion. And we answer further, that we are unable to draw any- clear and distinct line between the authority of Congress to regulate an agencj^ employed in commerce between the states, when that agency extends through two or more states, and when it is confined in its action entirely within the limits of a single state. If the authority does not extend to an agency in such commerce Avhen the agency is confined wdthin the limits of a state, its entire authority over interstate com- merce may be defeated. Several agencies combining, each taking up the commodity transported 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." In Gulf C. & S. F. Ry. Co. v. Texas"' there were involved two independent shipments, and the fact that the first was interstate did not make the second, moving between points both of which were in Texas, an interstate shipment. The Commission held that an indispensable element of a through shipment was a contract therefor;"* but while this statement may be correct generally, it disregards the prin- ciple that substance and not mere form controls. In the Social Circle case"^ an intrastate movement that was part of an inter- state movement under a through bill of lading, w^as held sub- ject to the supervision of the Commission. § fiS. Transportation Included in Act, Continued. — As stated in the preceding section, the general rule that a contract for through shipment determines w^hether or not the ship- ment is interstate or intrastate, and the decision in Gulf, 63. Gulf, C. & S. F. R. Co. v. 16 Sup. Ct. 700. See also. United Texas 204 U. S. 403. 51 L. Ed. States V. Wood, 1)45 Fed. 405, .T^O 27 Sun Ct. 3(i0, 411: Uiv'ted Stites v. Colorado 64. Re Alleged Unlawful Rates & N. W. Ry. Co., 157 Fed. 321. and Practices 7 T C. C. 240. 247. 85 C C. A. 48; Chicago, B & Q. 65. Cincinnati, N 0. & T. P. R. R. Co. v. United States, 157 Fed. Co. V. Interstate Com. Com.. 16"^ 830. 85 C. C. A. 194. U. S. 184, 192, 40 L. Ed. 935, 938. § G8] To Regulate Commerce. 297 Colorado & Sante Fe Ky. Co. v. Texas must be limited by the principle that the subistance and not tlie mere form con- trols. Tn the Galveston Terminal Case"" it was held that where goods were intended for export, the fact that the first bill of lading was issned to a terminal within the state, the com- modity there to be delivered to a carrier for a foreign destina- tion, did not make the movement an intrastate one, and that such transportation was snbjeet to regulation by the Inter- state Commerce Commission. In this case emphasis was laid upon the fact that the Terminal Company was controlled by the Railroad Company, and in the course of the opinion it was said : "Verbal declarations cannot alter the facts. The control and operation of the Southern Pacific Company of the rail* roads and the Terminal Company have united them into a system of which all are necessary parts, the Terminal Com- pany as well as the railroad companies." And the conclusion of the Court is shown by this language : "The Terminal Com]-)any is part and parcel of the system engaged in the transportation of commerce, and to the ex- tent that such commerce is interstate the Commission has .iurisdietion to supervise and control it within statutory limits. To hold otherwise would in effect permit carriers generall.y, through the organization of separate corporations, to exempt all of their terminals from our regulating authority." This case was followed and the Santa Fe case distinguished in a subsequent case,"^ where it was held that, although con- tinuity of movement might be conceded as necessary to make the shipment, the court could look behind the mere billing and determine the real character of the transportation. Tn 66. . Southern Pac. Term. Co. v. citing The Galveston Terminal Interstate Com. Com., 219 U. S. Case and R. R. Com. of Ohio v. 498. 55 L. Ed. .".10, 31 Sup. Ct Worthington, 225 U. S. 101, 56 L. 279. citing Coe v. Errol. 116 U. Ed. 1004. 32 Sup. Ct. 653. And S. 517, 29 L. Ed. 715, 6 Sup. Ct. see Texas & P. R. Co. v. R. R. 475, sustaining the Commiss''on Com. of Louisiana, 183 Fed. 1005: in Eichcnberg v. Southern Pac. 'Re Discrimination in Wharfage Co., 14 I. C. C. 250. at Pensacola, 27 L C. C. 252. For 67. Texas & N. O. R. Co. v. Sa- cases like the Santa Fe Case, see bine Tram Co., 227 U. S. Ill, United States v. Wood, 145 Fed. 57 L. Ed. 442, S3 Sup. Ct. 229, 405. 411; Oregon R. & Nav. Co. 298 Validity and Scope of The Act. [§ 68 Railroad Cbmpanies of Louisiana v. Texas Pac. R. Co.," the principles? established by former decisions were stated: "The principle enunciated in the cases were that it is the essential of the character of the commerce, not the accident of local or through bills of lading which determines federal or state con- trol over it. And it takes character as interstate or foreign commerce when it is actually started in the course of trans- portation to another state or to a foreign country." The de- livery of cars for interstate shipment is within the act.*^ In the Iowa case^" the shipments of coal moved to Daven- port, Iowa, in interstate commerce. Upon the arrival of the coal at Davenport, all transportation charges thereto were paid; and, without unloading the cars, the consignee tendered written billing for reshipment to local points in Iowa ; the carrier refused to accept such reshipment in foreign cars, claiming that the shipment should be unloaded and reloaded into its own cars . The commodity when shipped from the original point of origin in a state other than Iowa, was destined to Davenport, at which place the consignee could unload and there sell or reconsign the coal to another place. It being found as a fact that, "The certainty in regard to the shipments of coal ended at Davenport," the Supreme Court of the United States sustained the Supreme Court of Iowa in holding that this reshipment into Iowa was an intra- state movement. The carrier had contended that the method adopted was a device to secure a lower than the through V. Camnbell. 180 Fed. 253. same also Kanotex Refining Co. v. A. styled case, 173 Fed. 957, 177 T. & S. F. R. Co., 34 I. C. C. Fed. 318. 271; Railroad Com. v. Worthing- 68. R. R. Com. of Louisiana v. ton, 225 U. S. 101, 56 L. Ed. 1004, Texas & P. R. Co., 229 U. S. 336, 32 Sup. Ct. 653; and the quota- 57 L. Ed. 1215, 33 Sup. Ct. 837. tion from the Daniel Ball Sec. 69. Chicago, K. I. & P. Ry. Co. 67 supra. Illinois Grain to V. Hardwick" Farmers ETevator Chicago, 40 I. 0. C. 124; Tampa Co., 226 U. S. 426, 57 L. Ed. 284, Fuel Co. v. A. C. L. R. Co., 43 I. 33 Sup. Ct. 174. C. C. 231; Green v. A. & V. Ry. 70. Chicago M & St. P. R. Co. Co., 43 I. C. C. 662, 673; United V. Iowa, 233 U. S. 334, 58 L. Ed. States v. Illinois C. R. Co., 230 988, 34 Sup. Ct. 592; State v. Chi- Fed. 940; United States v. P. & cago M. & St. ?. R. Co., 152 R. Ry. Co., 232 Fed. 946; Ala- Iowa S17, 130 N. W. 802. See bama G. S. R. Co. v. McFadden, § G8] To Regui^ate Commerce. 299 rate ; the local rate from Davenport added to the interstate rate thereto heing- less than the through rate from the point of origin to the point of final destination. This contention of the carrier presented a question of fact, and on the question of fact the Supreme Court of the United States said: "We ar^ unable to say upon this record that the state court has im- properly characterized the traffic in question here." The state court having held that the second movement was an intrastate movement subject to regulation by the state auhori- ties, its judgment v^as affirmed by the Supreme Court. The criticisms that have been directed at this opinion fail to give proper consideration to the finding of facts involved. The Supreme Court adopted the facts as found by the state court, but took occasion to say: "It is undoubtedly true that the question whether commerce is interstate or intrastate must We determined by the essential character of the com- merce, and not by mere billing or forms of contract." Whether assent be granted or withheld from the conclusions of fact found by the state court and accepted by the Supreme Court, the law as announced by the latter court is entirely consist- ent witli the decisions in the cases cited in notes 59-61 suprck In the Shreveport case the Commerce Court held that dis- crimination which was the result of a purely intrastate rat€ was not justified because the result of a State Commission- made-rate, and that as to interstate commerce such discrim- ination could be prohibited by the Interstate Commerce Com- mission.'' This case was affirmed by the Supreme Court, the conclusion being that Sec. 3 of the Act to Regulate Com- merce was intended to, and does, make illegal all unjust dis- crimination, even though the discrimination be caused by an intrastate- rate prescribed by or under authority of a state law, and that Congress is not required to remove the dis- 232 Fed. 1000. Affirmed McFad- S. 371, 60 L. Ed. 1050, 36 Sup. Ct. den V. A. G. S. R. Co., 241 Fed. 665. 562, 154 C. C. A. 338; Landon v. 71. Texas & P. R. Co. v. Inter- Public Utilities Com., 242 Fed. state Com. Com., 205 Fed. 380, 658, 683 and cases cited; Settle sustaining the Commission in R. V. B. & O. S. W. R. Co., 249 Fed. R. Com. of La. v. St. Louis & 913, — C. C. A. — : Atchison T. S. W. Ry. Co., 23 I. C. C. 31. & S. F. R. Co. V. Harold, 241 TJ. 300 Validity and Scope of The Act. [§ 69 criminal ion l)y lowering an interstate rate not found to be too his'h/" AMien a combination rate is in force from the United States to a point in Canada, the Interstate Commerce Commission has held that it has no jurisdiction of that part of the com- bination rate "applicable only in Canadian territory."'^ Nor has the Commission any jurisdiction of a shipment moving through the United States from Canada to Cuba. Alaska is a territory within the meaning of the act/* § 69. Same Subject. — If a transportation movement begin- ning and ending in a state passes for a substantial part of the distance through another state, the state in which such transportation begins and ends cannot regulate the rate.'^^ The decision in which this holding was made has been dis- tinguished in subsequent cases but not to limit the principle as here stated. '* But where such shipment moves through an- other state when it could have moved intrastate at a loM^er rate, reparation will be awarded." Speaking of Water Carriers, the Supreme Court has said:" "Certain it is that, when engaged in carrying on traffic under joint rates with railroads, tiled with the Commission, 7^. Houston E. & W. Ry. Co. v. Northern P. Ry. Co. v. Solum, U. S., 2?A U. S. 342, 58 L. Ed. 247 U. S. 477, 62 L. Ed. 1221. 38 1341, 34 Sup. Ct. 833. See also Sup. Ct. 550. Corp. Com. of Okla. v. A. T. & 76. Cincinnati, Portsmouth, etc. S. F. Ry. Co., 31 I. C. C. 532. Packing Co. v. Bay, 200 U. S. 179 73. Fullerton Lumber & 50 L. Ed. 428, 26 Sup. Ct. 208; Shingle Co. v. Bellingham Bay & Ewing v. City of Leavenworth, British Columbia R. Co., 25 I. C. 226 U. S. 464, 468, 57 L. Ed. 303, C. 370. See also note 36 supra 33 Sup. Ct. 157. The Hanley and Quintal & Lynch v. Fla. E. Case was cited as authority m C. R. Co., 57 I. C. C. 289. Simpson v. Shepard. 230 U. S. 74. Interstate Com. Com. v. 352, 401. 57 L. Ed. 1511, 33 Sup United States ex rel. Humbolt Ct. 729. S. & Co., 224 U. S. 474, 56 L. Ed. 77. Lathrop ^Aimber Co. v. Ala- 849, 32 Sup. Ct. 556. bama G. S. R. Co., 27 L C. C. 75. Hanley v. Kansas C. S. R. 250. Co., 187 U. S. 617, 47 L. Ed. 333, 78. Interstate Commerce Com- 23 Sup. Ct. 214, distinguishing mission v. Goodrich Transit Co., Lehigh Valley R. Co. v. Pennsyl- 224 U. S. 194, 208, 56 L. Ed. 729, vania 145 U. S 192. 36 L Ed. 32 Sup. Ct. 436. Reversing the 672, 1*2 Sup. Ct. 806, 4 I. C. C. 87; Commerce Court in Goodrich §70] To "Reoui.ate Commerce. 301 the carriers are l)oiind to deal upon like terms with all ship- pers who seek to avail themselves of such joint rates, and are subject to the general requirements of the act preventing and punishing the giving of rebates, the making of unjust discriminations, the showing of favoritism and other prac- tices denounced in the various sections of the act." And it was held that such carriers were subject to sections 12, 15, 20, and 21 of the Act to Regulate Commerce. Prior to the passage of the Panama Canal Act, water carriers not joining in a through route or common arrangement with rail carriers were not subject to the provisions of the act.'" Since the passage of this act the Commission has jurisdiction "when property may be or is transported from point to point in the United States, through the Panama Canal or other- wise.""" § 70. Powers and Procedure of the Commission. — In the first seven sections of the act to regulate interstate railroads are stated the rights of the shipper and the duties of the carrier. Sections six, eight, nine, thirteen, fourteen, fifteen, fifteen-a. sixteen, sixteen-a and twenty relate to the remedies of shippers, and the administration of the act by the com- mission. Section ten relates to public penalties, sections eleven and twenty-four to the appointment of the commis- sioners, sections twelve, eighteen, twenty-one, and twenty- two, apply to the commission's purely administrative duties. Section seventeen relates to forms of procedure. Section twenty-two expressly retains existing common law and statu- tory remedies, and section twenty-three provides for cumula- tive remedies in the courts of the United States. Section six- teen also provides a period of limitation in which to bring eomj/Iaints for damages. Section twenty makes the receiving carrier liable for loss, damage, or injury to property, which it has received for transportation, whether caused by it or a connecting carrier to whom it may have delivered the ship- ment. Section 19a, added by the Amendment of March 1, 1913, invests the Commission with power after investigation to Transit Company v. IiTterstate 80. Panama ('anal Act August Com. Com., 190 Fed. 943. 12, 1914, Sec. 64, supra. See Sec. 79. Re Jurisdiction Over Water ,379, post. Carriers, 15 I. C. C. 205. 302 Validity and Scope of The Act. [§ 70 make a valuation of the property of common carriers subject to the act. and prescribes the effect of such valuations when made. The Transportation Act, 1920 while adding somewhat to existing provisions gave the Commission in paragraphs 18, et scq., of section 1, control over new construction by car- riers subject to the Act ; in section 15a, prescribed a per- centage return for carriers; in section twenty-a, regulated the issuance of stocks and bonds; in section twenty-five provided for the regulation of common carriers by water in foreign commerce and in section twenty-six gave the commission au- thority by order to install automatic train-stop or train-control devices. Other titles of the Transportation Act, 1920 contain pro- visions relating to Federal control of labor and to inland water-ways. 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 pos- sesses its real importance. When a common carrier has vio- lated the act it is "liable to the person or persons injured thereby for the full amount of damages sustained in con- sequence 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 jurisdic- tion." The Supreme Court of the United States, speaking of the provision of section nine, just quoted, says" "We think that it inevitably follows from the context of the act that the independent right of an individual originally to maintain actions in courts to obtain pecuniary redress for violations of the act conferred by the ninth section must be confined to redress of such wrongs as can, consistently with the context of the act, be redressed by courts without previous action by the commission." This case was a suit brought in a 81. Texas & P. Ry. Co. v. Abl- Ann. Case 107.5. See also Sec. 383. lene Cotton Oil Co.. 204 U. S. 426. post. 51 L. Ed. 553, 27 Sup. Ct. 350, 9 §71] To Regulate Commerce. 303 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. While this suit was brought in a state court, and while express authority to sue in the United States courts is granted by section nine, the reasoning of the court would demand the same decision had the suit been brought in a "Court of the United States of competent jurisdiction." § 71. Same Subject. — Prior to the Hepburn Act the com- mission might determine whether a particular rate was just or unjust, but could not prescribe rates to control in the future. The Amendment of June 29, 1906 and the Transporta- tion Act 1920 gave power to the commission, upon the com- plaint of natural or corporate persons, including mercantile, agricultural, or manufacturing societies, public corporations and state railroad commissions, or on its own motion, to make investigations with reference to rates or practices of interstate carriers, to make reports stating its conclusions, together with its decision, order or requirement, and when damages are awarded, such report should 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 hearing upon a complaint made as provided in sec- tion thirteen of this act, or under an order for investigation and hearing on its own motion, it shall be of the opinion that any of the individual or joint rates, or charges whatsoever, demanded, 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 for the transmission of messages by telegraph or tele- phone, or that any individual or joint regulation ov practice in respect to such transportation is just, fair, and reasonabli^ to be thereafter followed ; to make an order that the carrier shall cease and desist from such violations, to the extent to which the commission might have found the same to exist, and further to require that the carrier should not thereafter publish , demand, or collect any rate or charge for such trans- portation in excess of the maximum or minimum rate or charge so prescribed, and should confonn to to the regulation or 'MH Validity and Scope of The Act. [^ 72 practice so prescribed. The power was also given the commis- sion to rcqnire the establishment of throngh routes and to fix joint rates and to open terminals for joint use on terms to be prescribed, to prescribe an allowance which must be reason- able for a service or instrumentality furnished by the owner of property transported. All awards of the commission, except orders for the pay- ment of money, take effect within a reasonable time, not less than thirty days, and continue in force as prescribed unless suspended, set aside, or modified by the commission 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. The Commission is by section nine of the Act of 1910, amending section six of the old law, given power to reject schedules under certain cir- cumstances, and schedules so rejected are void, and the failure to comply with regulations adopted and promulgated by the Commission, is a criminal offense. § 72. Switch Connections. — Under section one of the Act of March 4, 1887, as amended by the Act of June 29, 1906, the Supreme Court held that the Interstate Commerce Commission had power to compel switch connections with lateral branch roads only at the instance of shippers and that it had no power to compel switch connections on the application of a branch railroad. This decision of the Supreme Court would not be applicable to the Act of 1910, as the "owner" of such lateral branch road has now the same rights as a shipper. § 73. Damages and Penalties for Misquoting a Rate. — Prior to the Act of 1910, a shipper, who had been damaged by the error of a common carrier in misquoting a rate, had no rem- edy. The Act of 1910, unchanged in 1920, amends section six of the prior Act by providing a penalty against the carrier for giving a shipper the wrong rate. As the statute in section eight gives a shipper the right to recover damages for any vio- lation of the Act, it is believed that upon requesting a quota- tion of a rate as the statute requires, the shipper suffering damage in consequence of an erroneously stated rate, may re- cover such damages by suit against the carrier in any court of competent jurisdiction. <§ 74] To Regulate Commerce. 305 § 74. Penalties.— Section ten of the old law is amended by the Act of 1910; paragraphs one, two and four of the old sec- tion are unchanged. Paragraph three of the original section ten is amended and enlarged, in line one, by adding after "person" the words "corporation or company;" after the word "package" in the old law, the new law adds "or the substance of the property;" "officer" is added to "agent" m the new law; and an "attempt" to obtain transportation at less than the legal rate is now illegal. Imprisonment is specifically made inapplicable to artificial persons, and this new language making illegal other acts is added: "or who shall knowingly and willfully, directly or indirectly, himself or by emjiloyee, agent, officer or otherwise, by false statement or representation as to cost, value, nature, or extent of injury, or by the use of any false bill of lading, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to be false, fictitious, or fraudulent, or to contain any false, fictitious, or fraudulent statement or entry, obtain or attempt to obtain any allowance, refund, or payment for dam- age or otherwise in connection with or growing out of the transportation of or agreement to transport such property, whether with or without the consent or connivance of the car- rier, whereby the compensation of such carrier for such trans- portation, either before or after payment, shall in fact be made less than the regular rates then established and in force on the line of transportation." § 75. Investigfations by the Interstate Commerce Commis- sion. — Section thirteen of the original Act is enlarged by the Act of 1910, the principle change being to extend the power of the Interstate Commerce Commission to make investigations on its own initiative. The language of this amendment would seem to be broad enough to meet the decision of the Supreme Court in the Harriman case,"^ because after giving power to in- vestigate "any matter or thing concerning which a complaint is authorized," this is added: "or concerning which any ques- tion may arise under any of the provisions of this Act." 82. Harriman v. Interstate Com. 29 Sup. Ct. 115. Com., 211 U. S. 407, 53 L. Ed. 253. 306 Validity and Scope of The Act. [§ 7G Tlie Transportation Act 1920 further amends Section thir- teen by prescribing a procedure where rates imposed by a state are involved. The amendment also specifically author- izes carriers to file petitions attacking such rates. These pro- visions added in 1920 are no more than declaratory of what was already law, except in so far as they require a particular procedure ; and, even as to procedure, the requirements are practically the same as the Commission had theretofore fol- lowed. § 76. Additional Power Given the Interstate Commerce Commission. — Section fifteen, added by the Act of June 29, 1906, is amended by the Act of 1910 to enlarge and more defi- nitely state the powers of the Interstate Commerce Commis- sion. The amendment gives the Commission "on its own initiative" "in extension of any pending complaint or without any complaint," power over "individual or joint rates," and over "individual or joint classifications." While the words "any regulations or practices whatsoever" affecting rates, contained in the Act of 1906, may have been sufficiently broad to include regulations affecting classifications and joint rates, if any doubt existed as to such Act being so inclusive, such doubt is removed bjy the Act of 1910. The Transportation Act 1920 as stated in prior sections further enlarged the powers of the Commission. Of these powers the most important and practically the only new powers are ; the right to prescribe minimum rates, to open terminals, the car service provisions, to regulate new construc- tion and decide when existing facilities might be abandoned, to permit pooling and consolidations, to determine the routing of freight, to control the issuance of stocks and bonds and section fifteen-a, which is known as the provision for guaran- teed returns. Section 15a is of doubtful constitutionality.** Paragraph one contains definitions. Paragraph two names certain things which the Commission must consider in exercising its power to prescribe just and reasonable rates. The things named have 83. Sec. 63a, supra, and Sees. 405a to 405m, post. < § 77] To RE{iULATE COMMKRCE. 307 always received consideration and the purpose of the Commis- sion has been to give carriers "a fair return upon the aggre- gate value" of their railway properties. Paragraph three as the Congress had a right to do, fixes for two years, thereafter leaving the matter to the Commission, a minimum per centum of such aggregate value which shall be taken "as such fair re- turn." Paragraph four contains provisions guiding in a de- termination of "such aggregate value." Paragraph five is an explanation and attempted justification for the provisions of paragraph six which gives the Commission power to recover and receive one-half of "net railway operating income in ex- cess of six per centum for the purpose of establishing and maintaining a general railroad contingent fund " The re- maining paragraphs of the section regulate the disposition of excess income and the contingent fund. § 77. Commission May Suspend an Advance in Rates. — Heretofore the carriers could make any increase in rates or any change in regulations however unjust, and the Interstate Commerce Commission could not stay the advance or prohibit the regulation until after a long delay, during which an in- vestigation was had. Some of the Circuit Courts and Circuit Courts of Appeals held that an illegal advance could be en- joined, other courts held the contrary and the Supreme Court has never determined the question. The amendments of 1910 and 1920 provide that the operation of such advance or regula- tion may be suspended or deferred by the Interstate Com- merce Commission until after an investigation by the Commis- sion. A Senate Committee had in 1906 reported against giving such power to the Commission, and it must b!e admitted that this power in the Commission was a fundamental departure in the regulation of common carriers. Theretofore the right of the carrier to initiate rates was not subject to the control of the Commission, since, while the carrier may initiate a rate or reg- ulation such right is subject to the control of the Commis- sion. This law prevents the delay and injury which shippers suffered, who had theretofore to file their complaint against an illegal advance and rely on the tiresome, expensive and inadequate remedy by reparation. Section fifteen, as amended, gives the shipper certain rights with reference to through routes and prohibits carriers and their agents from 308 Validity and Scope of The Act. [§ 78 giving information with reference to shipments. The burden of proof to show the justness and reasonableness of an ad- vance is on the carrier. This burden was on the carrier prior to the Act of 1910, w^hen a rate long in existence was ad- vanced, although there have been some opinions expressed to the contrary. The Interstate Commerce Commission in the case of Memphis Cotton Oil Co. v. Illinois Cent. R. Co., 17 I. C. C. 313, while not repudiating the doctrine above, states it less clearly than some of the prior decisions of the Commission. It is a fundamental law that acts of an individual are presump- tively not contrary to his interests, and as said by Wallace, Judge, in Menacho v. Ward, 27 Fed. 529, 532: "The estimate placed by a party upon the value of his own services or prop- erty 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-con- tinued and extensive course of business dealings." § 78. Reports of Carriers. — Paragraph two of section twenty of the Act of 1906 is stricken by the Act of 1910, and in lieu thereof a new paragraph is enacted, giving the Com- mission power to require annual reports for the year ending either June thirtieth or December thirty-first of each year, in- stead of June thirtieth only as was provided by the old law, and also giving power to the Commission in addition to the annual and monthly reports, to require of carriers "periodical or special" reports. The Transportation Act 1920 uses some more words in de- scribing what the Commission may require as to the forms of accounts, records, and memoranda kept by the carriers, speci- fically regulates charges for depreciation and gives the Com- mission power to require annual reports for the year ending ing all documents, papers and correspondence now or here- after existing, and kept or required to be kept by carriers."^* § 79. Court Procedure with Reference to the Orders of the Commission. — The Commission is given power to apply to the courts to enforce its orders. Writs of mandamus may issue 84. Sec. 42.2, post. Smith v. Int. 135, .3& Sup. Ct. 34. Com. Com., 240 U. S. 33, 62 L. Ed. §78] To Regulate Commeece. 309 from the district courts of the United States to compel the movement and transportation of freight without undue dis- criminaion. and to compel the furnishing of cars and other facilities of transportation. Suits to enforce orders for rep- aration, after an order therefor has been granted by the Commission, may be brought in the Federal or the State courts. Under certain circumstances, courts may suspend or set aside the orders of the Commission. What these cir- cumstances are will be discussed hereinafter in Chapter VII. CHAPTER III. ALL CHARGi^]S FOR SERVICES RENDERED BY COMMON CAR- RIERS IN THE TRANSPORTATION OF PERSONS OR PROPERTY OR IN CONNECTION THEREWITH MUST BE JUST AND REASONABLE. § 80. All Charges Must Be Reasonable. 80a. Rule Applies to Accessorial Services. 81. Classification. 81a. Class and Commodity Rates. 82. Cost of Carrier's Equipment. 83. Cost of Carrier's Equipment. What Is a Reasonable Return. 84. Same Subject. Difficulties in Determining the Question. 85. Cost of Service. 86. Cost. When Carrier's Duty to Furnish Service. 87. Cost of Service. Continued. 88. Value of Service. 89. Same Subject. Use to Which Commodity Put. 89a. Cost of Assembling Theory. 90. Value of the Commodity, Its General Utility and Danger of Loss. 91. Value of the Commodity. Difference Between the Rav^ and the Manufactured Product. 92. Competition or Its Absence Considered in Determining Rea- sonable Rates. 93. Same Subject. 94. Same Subject. Rule Since 1910. 95. Same Subject. Conclusion. 96. Rates Affected by Amount of Tonnage. 97. Same Subject. Limitations on Rule. 98. Density of Traffic. 99. Distance and Rate per Ton Mile. 99a. Extra Line Haul. 100. General Business Conditions. 101. Estoppel. 102. Rates Long in Existence Are Presumed to Be Reasonable. 103. Same Subject. 104. Voluntary Reduction of Rates. 105. Same Subject. Act June 18, 1910. 106. Grouping Territory and Giving Each Group Same Rate Legal under Some Circumstances. 107. Grouping Producing Points and Making Zones Taking Same Rates. 108. Basing Point System. (310) ^ 80] Must be Just and Reasonable. 311 109. Same Subject. Breaking Rates. 110. Comparison Between Different Lines as a Means of Deter- mining Correct Rate. 111. Car Load and Less than Car Load Movements as Affecting the Rate. 112. Establishing Car Load Rates. 113. Same Subject. Rule in Duncan Case Criticised. 114. Same Subject. Proper Differential Between Rates on Car Load- and Less than Car Load Freight. 115. Car Load Minima. 116. Train Load Rates. 117. Relation of Through Rates to the Sum of Local Rates. 118. Proportional Rates. 119. Through Rate Must Not Exceed Aggregate of Intermediate Rates. 120. Through Routes and Joint Rates. 121. Same Subject. Amendments of 1910 and 1912. 122. Rates on Commodities Requiring Refrigeration. 123. Rates on Returned Shipments. 124. The Public Interest Must Be Considered in Making Rates. 125. General Principles Applicable to the Question. What Is a Reasonable Rate? 126. Same Subject. Some Statements of the Commission as to Such General Principles. 127. Same Subject. Illustrative Cases. 128. Same Subject. Discussion of Principles in Chicago Live Stock Exchange Case. 129. Same Subject. Rate Considered in and of Itself. 130. Same Subject. Commission Not Bound by Technical Rules. 1.3.1. Same Subject. Summary. § 80. All Charges Must Be Reasonable. — At common law and under the Interstate Commerce Act all charges made by common carriers for any service rendered, or to be rendered, in the transportation of persons or property, or in con- nection therewith, are required to be just and reasonable, and every unjust and unreasonable charge for such service, or any part thereof, is prohibited and declared unlawful.^ This prin- ciple of law necessarily arises from the franchises and practi- cal monopoly incident to the business of common carriage. The principle is not new, but as has been held by the courts 1. Post, Sec. 339. Interstate Com. transmission of messages by tele- Com. V. Cincinnati, N. 0. & T. graph, telephone and cable are Ry. Co., 167 U. S. 479, 42 L. Ed. also subject to the rule of reason- 243, 17 Sup. Sup. Ct. 896. The ableness. 312 Charges for Transportation of Persons, etc. [§ 80 for over two hundred years when private property is "affected with a pul)lie 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 wliat 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 Ilarg. 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 wdth a public interest when used in a manner to make it of public consequence, and affect the com- munity at large. AVhen, 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 the 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 desideratum sought by the law. Whether or not a particular rate on a single commodity is in and of itself just and reasonable cannot be demonstrated.' Certain principles and presumptions have been made use of by the courts and commission in determining cases that came be- fore them, biit it cannot be claimed that rate making is a science. Very early in its history, the commission expressed the difficulty of determining what constituted a just rate as follows : 2. Munn v. Illinois. 94 U. S., 4 of Ga. Ry. Co., 138 Ga. 625, 75 S. Otto 113, 24 L. Ed. 77, 84. Mr. E. 1041, 42 L. R. A. (N. S.) 541, .Justice Hill of the Supreme 1913E, Ann. Gas. 609. Court of Georgia traced the prin- 3. National Hay Asso. v. Lake ciple of regulation back to Ham- Shore & M. S. R. Co., 9 I. C. C. murabi; see Stephens v. Central 264, 303, 304, 30.'>, § 80A] Must be Just and Reasonable. 313 "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 cannot be regarded as other than an approximation." * In the 1910 AYestern Rate Advance case" Mr. Commissioner Lane discussed the principles from which could be determined what is a reasonable rate and in concluding the opinion of the Commission in that case said: "We are dealing here with a difficult problem, involving multitudinous facts and an infinite variety of modifying conditions, which make the establishment of principles and the framing of policies a matter of slow evo- lution." Some of the principles announced by the courts and the com- mission will be stated in the next succeeding sections. § 80A. Rule Applied to Accessorial Services. — It will be noted that the charges "in connection" with transportation are included within the requirement of reasonableness. The same reason applies to charges for demurrage," refrigeration,' delivery,^ terminal charges," as well as any other charges made for any service connected with transportation. The Supreme Court, however, has held, reversing the Commission and the lower courts, that carriers are entitled, for a service and ex- pense in stopping goods in transit, to compensation in addition to the actual expenses incurred.'" Many services in connection with the receipt, delivery, elevation and transfer in transit, 4. Howell V. New York. L. E. 8. St. Louis Hay & Grain Co. v. & W. R. Co., 2 L C. C. 272, 2 I. C. Chicago, B. & Q. R. Co., 11 I. C. R. 162. C. 82, 87. 5. Advances in Rates, Western 9. Int. Com. Com. v. Chicago, B. Case, 20 I. C. C. 307. & Q. R. Co., 186 U. S. 320, 342, 6. Penn Millers' Asso. v. Phila- 46 L. Ed. 1182, 22 Sup. Ct. 824; delphia & R. R. Co., 8 I. C. C. Cattle Raisers' Asso. v. Chicago, 531, 558. B. & Q. R. Co.. 12 I. C. C. 507. 7. Re Charges for Transporta- 10. Southern Ry. Co. v. St. Louis tion and Refrig.^ration of Fruit, Hay & Grain Co., 214 U. S. 297, 11 I. C. C. 129, Knudson-Fergu- 53 L. Ed. 1004, 29 Sup. Ct. 678. son Fruit Co. v. Mich. Cent. R. Co., 148 Fed. 968, 79 C. C. A. 483. 314 Charges for Transportation of Persons, etc. [§ 81 ventilation, refrigeration or icing (including heating), storage and handling of property transported/' are not separately charged for but the charge is included in the general charge for the line haul. The Supreme Court has "decided that, as for a through rate to a given point, the carrier contracted to deliver at that point, the presumption was that the through rate included adequate compensation for the services rendered at the point of delivery." '" In the Five Per Cent Case, 31 I. C. C. 351 the Commission expressed the view that every service should be charged for; and later in referring to this view, Mr. Commissioner Harlan spoke of the soundness of the principle and the propriety of its application.''' Unquestionably all services should be charged for at a reasonable rate ; but as stated, the charge for the ac- cessorial service is frequently included in the charge for the principal service. The objection to one charge is that only some of the shippers receive the accessorial service ; and when there is only one charge, all the shippers pay the same charge. This is a preference to the shipper who receives the accessorial services and a disadvantage to the shipper who gets no such service, but paj-s the same rate as the shipper who does. Insurance premiums on property stored by the carrier in a ])ublic warehouse pending acceptance by a consignee are no part of transportation and not subject to regulation by the Commission.^* § 81. Classification. — Classification of commodities for rate making is adopted in prescribing rates. Most traffic, especially the more valuable articles, moves under classified rates ; the heavier articles are given what is called commodity rates. There are in the United States several ditferent classi- fications. Confusion and sometimes unjust discrimination re- sult from these difiPerent classifications when the traffic moves 11. Sec. 337, iwst. 13. Cheese Dealers Asso. Co. v. 12. Covington Stock Yards v. A. T. & S. F. Ry. Co., 40 I. C. C. Keith, 139 U. S. 128, 35 L. Ed. 73, 1, 3. 11 Sup. Ct. 461, Int. Com. Com. v. 14. Cotton Seed Products Co. v. Chicago, B. & Q. R. Co.. 186 U. S. St. L. S. F. Ry. Co., 53 I. C. C. 320, 336, 46 L. Ed. 1182, 1191, 22 574. Sup. Ct. 824; Duluth Dockage Ab- sorption, 44 I. C. C. 300, 302. § 81] Must be Just and Reasonable. 315 through territory where different classification rules and de- scriptions api)ly. Efforts have been made by representatives of the carriers and commissions, national and state, to remedy this condition by the adoption of a uniform system of classi- fication. In some sections there are commodities which do not exist in others. Long existing systems in reliance upon whish business has been established and prospered, are facts which make difficult a solution of the problem. But it is not, as said by Mr. Commissioner Lane, "fanciful to say" that a solution may be arrived at. The learned Commissioner in the same con- nection stated some principles which must b'e considered. He said: "Supplement cost with scientific classification of freight * * * and we have something certainly more nearly akin to reason than the hazard of a traffic manager, no matter how benevolently inclined.'"^ It is the duty of carriers subject to the act to regulate com- merce "to establish, observe and enforce reasonable classifica- tion of property for transportation," and the commission may "enter upon a hearing concerning the propriety of sucli * * * classification." "May determine and prescribe what will be the just and reasonable, * * * individual or joint classification."'" Classification like the other details in rate making is not an exact science." In framing classifica- tions and rates, no one consideration is controlling. Bulk, value, liability to waste or injury in transit, weight, form in which tendered, etc., must be taken into consideration." " All classi- fications must be made with due regard to these and kindred considerations. IMarket conditions and the promotion of com- petition are also facts which are considered. Classification must not. of course, be made to benefit one, or a few shippers and must be without discrimination.^" The Interstate Com- 15. Advance in Rates, Western man & Erbe Mfg. Co. v. Atchi- Case, 20 I. C. C. 307. 362. son, T. & S. F. R. Co., 15 I. C. 16. Sec. a95, j)Ost. Re Advances C. 260, 262. on Coal to Lake Ports, 22 I. C. 19. McClung & Co. v. Southern C. 604, 623, 624. Ry. Co., 22 I. C. C. 582, 584; 17. Forest City Freight Bureau Sutherland Bros. v. St. Louis & V. Ann Arbor R. Co., 18 I. C. C. S. F. R. Co., 23 I. C. C. 259, 262. 205, 206. The difficulties encountered in 18. Ford Co. v. Michigan Central making rates between different R. Co., 19 I. C. C. 507, 509, Yaw- classification territories are dis- 316 Charges for Transportation of Persons, etc. [^ 81 lueree Commission in the Western Classification case'" dealt at length witli the general subject. The ojiinion of the Commis- sion, written by Mr. Commissioner Meyer, begins with the statement that classification is a public function, and that com- mittees engaged in making or changing classifications should conduct their business as public, giving full information to shippers and Commissioners, state and national, that there may be opportunity for public hearings. Further principles were stated: "For years past the Western Classification Committee has complied to a certain extent what are de- signated classification units. These units as complied are a combination or sum of unlike parts, but may be expressed with equal propriety as a product composed of unlike factors. They are intended to express the relation to one another of weight, space, and value. AVhile a unit test of this character may not finally determine the classification of an article, it constitutes a basis for comparison with other articles. AVhen all the modi- fying conditio]is and facts are known, a fair classification re- lation may be established among articles through the aid of this classification unit. A compilation of classification units just as far as practicable for CA^ery item in the classification would doubtless be of substantial value in the present forma- tive w^ork. The classification is in an inchoate state. Perhaps every classification must remain so. Constant change appears to be inherent in industrial life." In discussing the rules which should apply in making a uniform classification, it was said: "The uniform classification must be worked out with- out an attempt to affect revenues. Classification and rates and revenues should be kept entirely separate. There will doubt- less be many coincidences in which the present rate applied to the new classification will bring ab'out the exact transportation charge which results from the old rate applied to the old classi- fication. In other cases the rate must be advanced or reduced, depending upon the change in the classification of the article in order to protect existing revenues. This is entirely without reference to the sufficiency or insufficiency of present revenues. cussed in Interior Iowa Cites R. Co., 39 I. C. C. 256. Case, 28 I. C. C. 64, 72, and in 20. Western Classification Case, Mempliis v. Chicago R. I. & P. 25 I. C. C. 442. § 81A] Must be Just and Reasonable. 31.7 which is a distinct and very different question. It would only complicate and confuse matters to attempt, through the instru- mentality of the classification, to bring about a revision in rates and charges. Whether a rate is too high or too low should be made a separate issue distinct from classification. Never- theless, as far as possible, the establishment of ratings and the publication of rates should follow changes in the classification very closely. A classification is a universal tariff from which the schedules of individual carriers should not depart, except in cases demanded by special conditions. Commodity tariffs in restricted numbers Avill probably always remain a necessity." In the 1915 Western Rate Advance Case," F. H. Millard, a witness for the Interstate Commerce Commission, presented the result of studies seeking to measure the extent to which the value of the commodity should constitute a norm in rate-mak- ing and rate-judging. These studies are shown in the appen- dix to the report of the Commission in that case. The Consolidated Classification Case, which is Volume 54 of the Commission's reports, combines and to some extent makes uniform, the several classifications. Perishable Freight In- vestigation 56 I. C. C. 449-671 is a further step towards uni- formity. Classification descriptions must necessarily be somewhat general and cannot go into minute details." In classification certain rates are made from territories de- scribed M'ith a fixed relationship. These territories are called "defined territories" and are described and mapped in 38 I. C. C. 153, 154. § 81A. Class and Commodity Rates. — The number of classes varies in the three general classifications and in such state classifications as exist. So also the relationship of the several classes differs in the different classifications and sometimes in the same classification. The Commission in Consolidated Clas- sification Case 54 I. C. C. 11, said: "While it is possible to re- 21. Western Rate Advance Case C. 15, 17. See for factors to be 1915, 35 I. C. C. 497. considered, National Society of 22. Casket Mfrs. Assn. v. B. & Records v. A. & R. R. Co., 40 I. C. O. R. R. Co., 49 I. C. C. 327; Acme C. 347, 355, and Sec. 161, post. Belting Co. v. A. & R. Co., 52 I. C. 318 Charges for Transportation of Persons, etc. [§82 move many of the present inconsistencies without changes in rate scales, it should also be borne in mind that an absolutely uniform classification could be prepared and proposed only in connection with a universal system of rate scales having a uni- form number of classes. In our view a desirable arrangement would be to have in each scale at least ten classes related somewhat as shoAvn below ; practically all less-than-carload traffic, to be confined to the first four classes, and a redistribu- tion made of the articles in the carload classes : Classes 1 2 3 4 5 6 7 8 9 10 Percentages . . . 100 85 70 60 45 35 30 25 22i/o 20 Many articles that now move under commodity rates and under exceptions to the classifications could be assigned rat- ings in such a scale that would result in the application of rates not substantially higher or lower than now apply." The greater number of commodities are given class rates. Some commodities moving in large volume are assigned rates applicable especially to the named commodity. These are called "Commodity Rates;" and, as a rule, are lower than the class rate on the same commodity."^ As said by the Commission/* "There can be no question about the propriety of commodity rates where conditions justify such departures from the regu- lar class rates." § 82. Cost of Carrier's Equipment. — Bonded indebtedness, operating 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 con- tracted in good faith and the expenses must be actual and reasonable. ^^ ]\Ir. Commissioner Prouty/" discussing this question, aptly says: "To make the capital account of our railroads the measure of their legitimate earnings would place, 23. Sulphuric Acid from New Re Alleged Excessive Rates on Orleans, 42 I. C. C. 200, 202 and Pood Products, 4 I. C. C. 48, 116. cases cited. 26. Grain Shippers' Asso. v. 111. 24. Rates and Rules on ship- Cent. R. Co., 8 I. C. C. 158, 182. ments of Packing House Products, See also Re Proposed Advance in 36 I. C. C. 62, 69. Freight Rates, 9 I. C. C. 382, 25. Dow V. Beidelman, 125 U. S. where is found a full discussion 680, 31 L. Ed. 841, 8 Sup. Ct. 1028. of the question. § 81] Must be Just and Reasonable. 319 as a rule, the corporation which has been honestly managed from the outset under enormous disadvantages." What the company is entitled to ask is a fair return upon the value of that which it employs for the 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 the value of service, both of which are discussed hereinafter. The cost and value of the railroad properties are among the various facts which may be considered in determining what in a particular case constitutes a reason- able rate. The value of property employed for the public convenience is an important element in determining the reasonableness of a Avhole schedule of rates. It can be of little value in. determining the reasonaHleness of rates on a particular com- modity. This is true because no method has ever yet been devised by w^hieh the cost of moving a particular commodity can be determined. AVhether or not such commodity is bearing its proper proportion of the charges that must t)c 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 superintendence and other general expenses which 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 maintaining a highway under legislative sanction must be the fair value of the property being used by it- for the con- veyance of the public. And, in order to ascertain that value, 27. Smyth v. Ames (Nebraska Water Co., 212 U. S. 1, 53 L. Freight Rate Case), 169 U. S. Ed. 371, 29 Sup. Ct. 148; Brab- 446, 42 L. Ed. S19, 18 Sup. Ct. ham v. Atlantic C. L. R. Co.. 11 418; Covington & Lexington Turn- I. C. C. 464, 473; Wilcox v. Con- pike R. Co. V. Sandford. 164 U. solidated Gas Co., 212 U. S. 19 S. 578, 41 L. Ed. 560, 17 Sup. 53 L. Ed. 382, 29 Sup. Ct. 192, Ct. 198; Knoxville v. Knoxville 15 Ann. Cas. 1034. 320 Charges for Transportation of Persons, etc. [§ 82 the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the orig- inal cost of construction, the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and are to be given such weight as may be 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 pu])lie 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" Tt 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 cannot be practically applied to a particular rate. Even with reference to a general schedule of rates it should b!e construed in con- nection with the decision of the case of Covington & Lexington Turnpike R. Co. v. Sanford,"" where the same distinguished Judge, Mr. Justice ITarlan, who wrote the opinion in Smyth v. Ames, said : "It is proper to say that if the answer had not alleged, in substance, tliat 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 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. Tt cannot be said that a corporation operating a public highway is entitled, as of right, and with- 28. Supra, note 27. § 82] Must be Just and Reasonable. 321. out 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 controlling a public highway, stockholders are not the only persons 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 reasonable and just for the public. If the es- tablishing of new lines of transportation should cause a dimi- nution in the number of those who need to use a turn- pike 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 property. The public cannot properly be subjected to unreasonable rates in order simply that stock- holders may earn dividends. The legislature has the authority in every case, where its power has not been restrained by conti'act, to proceed upon the ground that the public may not rightfully be i-equired to submit to unreasonable exactions for the use of a public highway established and maintained under legislative authority. If a corporation cannot main- tain 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." Value given to property by reason of its excessive earning liower should not be considered, although the reasonable value of a franchise is an element in arriving at the total value of property. The amendment giving to the Interstate Commerce Com- mission jurisdiction to make a valuation of the carrier's prop- erty"" will, when the work thereunder is com])leted, furnish a valuation which can be used in rate-making and rate-judging In the meantime the ''cost of road and equipment" furnishes 29. Section 420, post. 322 Chabges for Transportation of Persons, eto. [§ 83 a "usable" basis which the Commission applies. "^ In rate- judging and rate-making by an administrative body perform- ing the legislative function of determining what shall be the rate for the future, a different question is presented from that which arises when a court has for determination the (luestion of the confiscatory character of a rate prescribed by a r^)/a.s?'-legislative tribunal. The Commission may and should consider all questions affecting the movement of the par- ticular traffic, such as competition, classification, the public interests, and all of the elements which enter into the general question of reasonableness. In considering the questions so presented, Commissioners have to survey a wider field and have greater latitude than the courts, which are limited to the question, does the rate involved constitute m substance the taking of property without due compensation. This ques- tion is discussed, sec. 46 supra. The principles stated are not changed by Transportation Act 1920, Section 15a; but that section gives additional de- tails in stating the principles. § 83. Cost of Carrier's Equipment — What Is a Reasonable Return. — On the question of what is a reasonable return, the Supreme 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 sufBcient for capital invested in business enterprises. Such compensation may depend greatly upon circumstances and locality ; among other things, the amount of risk in the busi- ness is a most important factor, as well as the locality where the business is conducted and the rate expected and usually realized there upon investments of a somewhat similar nature with vegaT'd to the risk attending them. There may b^ 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 tf) any unusual returns upon the investment." 30. Advances in Rates, Eastern 325; Western Rate Advance Case Case, 20 I. C. C. 243, Western Case, 1915, 35 T. C. C. 497. 20 I. C. C. 307; Five Per Cent 31. SM?;?-a Note 27, this chapter, Case, 31 I. C. C SSI, 32 I. C. C Consolidated Gas Co. case. § 83] Must be Just and Reasonable. 323 In this ease the whole schedule of rates was involved and six per cent Avas held to be reasonable, the court saying: "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." 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 prop- erty gradually waste, wtihout making provision out of earn- ings for its replacement. It is entitled to see that from earn- ings the value of the property invested is kept unimpaired, so that at the end of any given term of years the original investment remaius 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 property 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 controlling factor is the value of the property which is de- voted to the public service. The cost of originally produc- ing or of reproducing that property is an important considera- tion, as is also the capitalization of the company and the value of its securities. In revising the rates of these express companies those considerations can have bjut little weight, since there is no real relation between the value of the prop- 32. Supm. Note 27, this chapter. 33. Kindel v. Adams Express Co., 13 I. C. C. 475, 485. 324 Chargp:s for Transportation of Persons^ etc. [§ 84 erty and the service performed, nor in the case of these companies, between their capital stock and just earnings." Increased cost of labor and equipment makes the cost of service higher, but this is generally offset by increased ef- ficiency. This (juestion is interestingly discussed and valuable tables given in the case of Re Class and Commodity Rates from St. Louis to Texas Common Points, 11 1. C. C. 238, et seq., and in Sec. 47 supra, other cases are cited and discussed. The Transportation Act, 1920, Section 15a, paragraphs 3 to 6 prescribe for "carriers as a whole or as a whole" in each * * * rate" group a standard of Syo per centum as a minimum which shall constitute until March 1, 1922 a fair return on the "aggregate property value." The Commission may after ]\larch 1, 1922 change this percentage. § 84. Same Subject. Difficulties in Determining the Ques- tion. — ^It is easy to state the fundamental ]-ule announced in Smyth \. Ames, supra, that the fair value of the property used for the public convenience shall be taken as a basis for determining the reasonableness of a schedule of rates, but the difficulty arises in determining Avhat is a "fair value" — AA^lio is to fix this value? What fact must of necessity be considered in arriving at this determination? Primarily the rate-making body must determine what the fair value is. and such determination has a force which the courts must regard. In the Minnesota Rate cases,"* the Supreme Court said: "The rate-making power is a legislative power, and necessarily implies a range of legislative dis- cretion. We do not sit as a board of revision to substitute our judgment for that of the Legislature, or of the com- mission, lawfully constituted by it, as to matters within the province of either." While this is true, neither a legislature nor a commission can confiscate the property of a public utility company, and the courts must therefore determine, when properly applied to, w^hether or not a particular rate or schedule of rates violates the constitutional rights of the carrier or other person or corporation engaged in a public 34. Simpson v. Shepard, 230 U. Land & Town Co. v. Jasper, 189 U. S. 352, 433, 434, 57 L. Ed. 1511, 33 S. 439, 446, 47 L,. Ed. 892, 23 Sup. Sup. Ct. 729, citing San Diego Ct. 571. § 84] Must be Just and Reasonable. 32& service, Avhose rates have been prescribed by the legislature, or under its authority. Congress has empowered the Inter- state Commerce Commission to make a physical valuation of railroads, but to do this will require years and even w^hen it is done the question will not be entirely settled. In the Minne- sota Rate cases, supra much testimony was taken as to value, relative cost, expenses, etc., but the Supreme Court rejected the proof as not adequate — the Court did however announce certain general and fundamental principles. It was there held that (1) the basis of the calculation is the fair value of the property, used for the convenience of the public; (2) that such value was not to be determined by ar- bitrary rules, but cost of construction of improvements, the market value of stock and bonds, the present as compared wnth the original cost of construction the probable earning capacity under the rates prescribed must be considered. And after quoting from Smyth v. Ames the Court concluded "AVe do not say there may not be other matters to ble regarded in determining the value of the property." And when a carrier is engaged in both interstate and intrastate transportation, and a rate is prescribed for intrastate movements the court announced a third principle as follows: The question "must be determined by considering separately the value of the property employed in the intrastate business, and the compen- sation allowed in the business under the rule prescribed." In the Indiana case''" further emphasis was given to the fact that prescribing rates was a legislative function, and when rates are so prescribed by a lawfully authorized tribunal the carriers seeking to set them aside must make definite and satisfactory proof. In the 1910 AVestern Rate Advance case it was contended upon the part of one of the carriers that "it is immaterial how the property was acquir'ed, what it originally cost, whether the present value may be claimed to be in part the result of earnings put back into the property in betterments or is due to growth of traf^c and development of the country serv- S.5. Wood V. Vandalia R. Co., 231 U. S. 1, 58 L. Ed. 97, 34 Sup. Ct. 7. o26 Charges for Transportation of Persons, etc. [§ 85 ed."™ This contention was denied by the Commission, Mr. Commissioner Lane saying : "Notwithstanding these decisions, it remains for the Su- preme Court yet to decide that a public agency, such as a rail- j'oad created by public authority, vested with governmental jiuthority. may continuously increase its rates in proportion to its value, either (1) because of betterments it has made (tut of income, or (2) because of the growth of the property in \alue due to the increase in the value of the land which the company owns." This answer is fully supported by the subsequent decision of the Supreme Court in the Minnesota Rate Cases and other like state rate cases decided about the same time/' This principle must not, however, be given too broad an applica- tion. Construed in the light of the decisions cited it does not deny a carrier returns on investments merely because such investments may have been made from earnings or may have resulted from an increase in the value of the original invest- ment, l)ut the principle would prevent charging unreasonable rates even though such rates were necessary to earn a fair return on the investment. § 85. Cost of Service. — The value of the equipment of a common carrier, 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 36. Advances in Rates, Western Town Co. v. National City, 74 Fed. Case, 20 I. C. C. 307, 339. In 79; Matthews v. Board of Corn- support of tliis claim these cases missioncrs, 106 Fed. 9. were cited: Ames v. Union Pac. 37. Simpson v. Shepard — Minne- Ry. Co., 64 Fed. 165; Reagan v. sota Rates Cases— 230 U. S. 352, Farmers Loan & Trust Co., 154 57 L. Ed. 1511, 33 Sup. Ct. 729; U. S. 3G2, 38 L. Ed. 1014. 14 Sup. Knott v. Chicago, B. & Q. R. Ct. 1047; Missouri, K. & T. Ry. Co.— Missouri Rate Cases— 230 Co. V. Love, 177 Fed. 493; Ken- U. S. 474, 57 L. Ed. 1571, 33 Sup. nebec Water Co. v. Waterville, Ct. 975; Chesapeake & O. R. Co. 97 Me. 185, 54 Atl. 6; National v. Conley— West Virginia Rate Water Works Co. v. Kansas City, Cases— 23.0 U. S. 513, 57 L. Ed. 62 Fed. 853; Metropolitan Trust 1597, 33 Sup. Ct. 985; Southern Co. V. Houston &. T. C. R. Co., Pac. Co. v. Campbell, 230 U. S. 90 Fed. 683; San Diego Land & 537, 57 L. Ed. 1610, 33 Sup. Ct. *^ 85] Must be Just and Reasonable. 327 he charged."* This item will he seen referred to by the Inter- state Commerce Commission frequently in its opinions deter- mining whether or not the rates under discussion are or are not reasonable. The Supreme Court, speaking of the com- mission, said: "The tribunal may and should consider the legitimate interests as well of the carrying companies as of the traders and shippers.""" In considering a proposed advance in freight rates," Mr. Commissioner Prouty first considers the question '"is the rate reasonable, estimated by the cost and value of the service?" In another case,"^ i\rr. Commissioner Clements said: "The test of the reasonable- ness of a rate is not the amount of the profit in the business of the shipper or manufacturer, but whether the rate yields a reasonable compensation for the services rendered." Cost of service, however, cannot b'e 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 accurately enough to make this factor controlling. It is worthy of consideration, however." Judge Clements ex- pressed the rule of the commission as follows :*^ 1027; Oregon R. & Nav. Co. v. Com. v. Chicago G. W. Ry. Co., Campbell — Oregon Rate Cases — 111 Fed. 1C03, 1015. Separation 230 U. S. 525, 537, 57 L. Ed. 1604, of Operating Expenses. 30 I. C. 33 Sup. Ct. 1026; Allen v. St. C. 676, 678; Coal Rates from Vir- Louis, I. M. & S. Ry. Co. — Arkan- ginia, 30 I. C. C. 635, 646; and sas Rate Cases — 230 U. S. 553, cases cited. 57 L. Ed. 1625, 33 Sup. Ct. 1030; ?9. Tex. & Pac Ry. Co. v. Int. Wood V. Vandalla R. Co. — Indiana Com. Com. 162 U. S. 197, 40 L. Rate Case— 231 U. S. 1, 58 L. Ed. Ed. 940, 16 Sup. Ct. 6G6. 5 I. C. 97, 34 Sup. Ct. 7; Louisville & N. R. 405. R. Co. V. Garrett — Kentucky Rate 40. Re Proposed Advance in Case— 231 U. S. 298, 58 L. Ed. 229, Freight Rates, 9 I. C. C. 382. 34 Sup. Ct. 48. See also Sec. 46 41. Central Yellow ^ine Asso. v. Supra and notes 45, 54 and 55 this 111. Cent. R. Co., 10 I. C. C. 505. chapter. 42. Int. Com. Com. v. Chicago 38. Re Alleged Excessive Rates Great W. R. Co., 141 Fed. 1003, on Food Products, 4 I. C. C. 48, 1015. and cases cited. Affirmed, 3 I. C. R. 93; Schumacher Milling same style case. 209 U. S. 108, 52 Co. V. Chicago, R. I. & P. Ry. L. Ed. 705, 28 Sup. Ct. 493. Co., 6 I. C. C. 61, 4 I. C. R. 3.73; 43. Cannon v. Mobile & O. R. Re Proposed Advances in Freight Co., 11 I. C. C. 537, 542. Rates, 9 I. C. C. 382; Int. Com. 328 Charges for Transportation of Persons, etc. ["§85 "AYhile 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 ordinarily costs more to haul feight a longer distance than a shorter one, the carrier cannot rightfully ignore substan- tial differences 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 serv- ice and often more controlling which must also be considered. Among these is competition both of carriers and of markets. The greater the inequality or dissimilarity in other potent circumstances or conditions the less controlling becomes the matter of relative cost." Tn determining the cost of service Mr. Commissioner Clem- ents said: "Expenditures for additions to construction and equipment should bV' reimbursed by all the traffic they ac- commodate during the period of their duration, and improve- ments that will last many years should not be charged against the revenue of a single year."^* The principle, however, must be applied in connection with the holding in the Knox- ville Water Co. case/^ that earnings should be sui^cient to pay a reasonable return on the property employed in the public service and provide against depreciation. "Cost of service," could not, in any event require an unreasonable rate, and, under some . circumstances, a carrier may be compelled to perform a particular service to the public at an actual loss. The Transportation Act of 1920 prescribes as something to be accomplished a definite return for the use of capital. Here the Congress has said that all the cost of service shall be paid by all the shippers, and that included in this cost there must be a definite return to the investor. Elsewhere in the 1920 Act are repeated provisions of the original Act requiring that all charges must be reasonable. The Con- gress has now made one factor, "fair return" on capital in- vested, an essential part of a reasonable rate, practically 44. Central Yellow Pine Assn. 45. Knoxville v. Knoxville V. 111. Cent. R. Co., 10 I. C. C. 505; Water Co., 212 U. S. 1, 53 L. Ed. 111. Cent. R. Co. v. Int. Com. Com., 371, 20 Sup. Ct. 148. 206 U. S. 441, 461, 51 L. Ed. 1128, 1136, 27 Sup. Ct. 700. <^ 86'] Must be Just and Reasonable. 329 guaranteeing that the sum of all rates shall yield a fair return on the sum of all investments or all investments in each rate group. There is yet undetermined what portion of this "fair return" must come from each particular service. The problem of what constitutes a reasonable rate on one or a few coinmoditios is not simplified by this 1920 legislation.** § 86. Cost — When Carrier's Duty to Furnish Service. — In Atlantic C. L. R. Co. v. North Carolina Corporation Com- mission*' the Supreme Court had under consideration an order of the North Carolina Commission 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 Suprem.e Court sustained the order of the North Carolina Commission, saying: "'But this case does not involve the enforcement by a state of a general scheme of maximum rates, but only whether an exercise of state authority to compel a carrier to perform a particular and specified duty is so inherently unjust and un- reasonable as to amount to the deprivation of property with- out due process of law or a denial of the equal protection of the laws. In a case involving the validity of an order en- forcing a scheme of maximum rates, of course the finding that the enforcement of such scheme will not produce an adequate return for the operation of the railroad, in and of itself, demonstrates the unreasonableness of the order. Such, how- ever, 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 tAvo cases is illustrated in St, Louis & S. F. E. Co. v. Gill, 156 TT. S. 649, 39 L. Ed. 567, 15 Sup. Ct. Rep. 484, and Minn- eapolis & 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 applied, as the findings made below as to the net earnings constrain us to conclude 46. Sec. 48, ante; Iron Ore 47. Atlantic Coast Line R. Co. Rates, 41' I. C. C. 181, 193; The v. North Carolina Corp. Com.. 206 Alaska Investigation 44 I. C. C. U. S. 1, 24, 25, 51 L. Ed. 933, 944, 680, 693. 27 Sup. Ct. 585. 11 Ann. Cas. 398. 330 Charges for Transportation of Persons, etc. [§ 87 that adef|uat'^ remuneration would result from the general operation o'' che rates in force, even allowing for any loss oecasioned by the running of the extra train in question, it follows that the order would not be unreasonable, even if tested by the doctrine announced in Smyth v. Ames and kin- dred cases." § 87. Cost of Service, Continued. — Tliat cost of service should be considered in determining the reasonableness of a rrite or a schedule of rates is but a corollary of th'e proposition that each is intitled to his own, but this principle, like all abstract principles, must be regarded as merely a fact to be considered, and not an inflexibjle rule to be followed. The principle must be considered in connection with all the cir- cumstances surrounding the transportation, the rate for which is sought to be determined. Regardless of cost of service, some traffic can and shoidd bear a higher rate than other traffic ; it is impossible to determine with accuracy the cost of moving a particular kind of traffic as under present systems of accounting, cost of each dift'erent service cannot be al- located. But. as was said by Mr. Commissioner Lane,^* "once we have learned the comparative cost for various services, it is not fanciful to say that a schedule of rates may be made which will approach justice as between services. Supple- ment cost with scientific classification of freight, giving their due to all the various factors, such as value, bulk, and hazard — especially to value — adding return for use of plant, and we have something certainly more nearly akin to reason than the hazard of a traffic manager, no matter how benevolently inclined. Such a theory gives force to every factor which the Supreme Court has said should be considered in the fixing of rates for public utilities. The investor would have his return, and the value of the property would be eared for as a part of the rate, though this return would of course vary with the rates as at present, one service making a larger return to capital than another." Bnt, until the facts suggested by the Commissioner are available, "the cost of the service" is one of the factors to be 48. Advance in Rates, Western Case, 20 I. C. C. 307, 362. § 87] Must be Just and Reasonable. 331 considered in determining the reasonableness of rates. But, neither the cost of the service, nor any of the other factors, of which there are manj-, should be taken alone as conclusive,"** and this rule is not abrogated biy the Transjjortation Act 1920. Business conditions, the necessity for a rate lower than the one under which the traffic moves, its Ioav value in com- parison with its weight, and other considerations, make it proper that some traffic shall bear less than its proportion of the cost of service. Sometimes, were a particular traffic charged with its jii-oportion of the cost of service, it would not move at all. The public welfare demands that such trat^c shall move ; the carrier loses nothing in conceding a low rate to such traffic if the rate exceeds, however little, the out-of-pocket cost. The carrier's equipment must be maintained, and the general expenses must go on, even though the traffic does not move. These considerations underlie the statement of the Commerce Court :^" "That relative freight rates have not been based upon the fair, proportionate cost or value of the service alone or in combination, is demon- strated by the entire history of freight classification. The carrier cannot complain of a violation of its constitutional rights if. not to favor some person or class, but for the general welfare, it is compelled to make a rate for some particular service which, though in excess of the out-of-pocket expense, would nevertheless be confiscatory, if it were applied to all its freight; that is, the carrier has no "constitutional right to a rate for each distinct kind of service which will equal its proportionate share of the entire operating expense." The language quoted from the opinion of the Commerce Court is susceptible of misconstruction, and it is not without significance that no similar statement appears in the affirming opinion of the Supreme Court. Limiting the language of the 49. Mr. Commissioner Clark in by the Supreme Court Atchison, T. Coke Producers Association of the & S. F. Ry. Co. v. United States, Cornellsville Region v. Baltimore 231 U. S. 736. The statement or & O. R. Co.. 27 I. C. C. 125, 140. the Commerce Court quoted in 50. Atchison, T. & S. F. Ry. Co. the text was fortified by citing: V. United States, 203. Fed. 56, 59; Minneapolis St. L. R. Co. v. INIin- Commerce Court Opinion No. 61, nesota, 186 U. S. 257. 46 L. Ed. 537. Lemon Rate Case; affirmed 1151, 22 Sup. Ct 900; St. L. & 332 Charges for Transportation of Persons, etc. [^ 87 Commerce Court as it was probably intended to be limited, to the meaning that an equal percentage over actual cost need not l)e fixed for the transportation of all commodities, the statement is a correct rule of law. That the rule must be limited as stated above, follows from the decision of the Supreme Court annulling rates on coal prescribed under the laws of North Dakota/' Those state rates paying no more than the actual cost to the carrier, were prescribed for the avowed purpose of enforcing a "puMie policy." The state presented the argument ''that the rate was imposed to aid in the development of a local industry." Answering this con- tention, Mr. Justice Hughes, delivering the opinion of the court, said : "While local interests serve as a motive for enforcing rea-* son able rates, it would be a very different matter to say that Ihe state may compel the carrier to maintain a rate upon a particular commodity that is less than reasonable, or — as might equally well be asserted — to carry gratuitously, in order to build up a local enterprise. That Avould be to go outside the carrier's undertaking, and outside the field of reasonable supervision of the conduct of its business, and would be efjiiivalent tn an appropriation of the property to public uses upon terms to which the carrier had in no way agreed." The learned Justice, that there should be no misunderstanding of the rule, expressly referred to the principle that classifica- tion of commodities with different ratings thereon was per- missible. He said: "The legislature undoubtedly has a wide range of discretion in the exercise of the power to prescribe reasonable charges, and it is not bound to fix uniform rates for all commodities, to secure the same percentage of profit on every sort of business. There are many factors to be con- sidered — differences in the articles transported, the care re- S. F. R. Co. V. Gill, 1.56 U. S. Ry. Co. v. R. R. Com. of La.. 192 649 39 L. Ed. 567. 15 Snp. Ct Fed. 2S0. 112 C. C. A. 528. 484: Atlantic C. L. R. Co. v. 51. Northern P. R. Co. v. North North Carolina Corp. Com., 206 Dakota. 236 U. S. 585. 59 "L. Ed. U. S. 1, 51 L. Ed. 933, 27 Sup. 735, 35 Sup Ct. 429. See also Nor- Ct 585. 11 Ann. Cas. 398. To folk & W. R. Co. v. Conley, 236 U. the Seme effect see Texas & P. S. 605, 59 L. Ed. 745, 3.5 Sup. Ct. 437. § 88] Must be Just and Reasonable. OOO quired, the risk assumed, the value of the service, and it is obviously important that there should be reasonable adjust- ments and classifications." Nothing in this decision conflicts with the decision in the North Carolina case, note 47 supra, this chapter. There the carrier was compelled to perform an absolute duty although in doing so for a reasonable charge there was a loss. In the North Dakota case the court held that less than a reasonable rate could not be required of the carrier. § 88. Value of Service. — The shipper cannot ordinarily pay more than the service is worth, consequently, from necessity as well as from a consideration of what is just, the value of the service must constitute the maximum charge. Rates should be proportioned to the value of the service to the shipper." The value of the commodity enters into the value of the service, and consequently must also be considered in determining what constitutes a reasonable rate.^^ That the in- terests of the public are important in determining the rea- 52. Delaware State Grange v. New York, etc. R. Co., 4 I. C. C. 588, 3 I. C. R. 554, 561; Loud v. South Carolina R. Co., 5 I. C. C. 529, 4 L C. R. 205, citing cases. Loftus V. Pullman Co., 18 I. C. C. 135, 140, difference in value of service between upper and lower Pullman berths. See also Re Sus- pension of Western Classification No. 51, 25 I. C. C. 442, at pp. 472, 474, discussing principles of classi- fication. 53. The principle that the value of a particular commodity must be considered in determining what is a reasonable rate thereon, is one which has been applied throughout the history of the In- terstate Commerce Commission. Evans v. O. R. N. Co., 1 I. C. C. 325; Howell v. N. Y. L. E. & W. R. Co.. 2 I. C. C. 272, 285, 1 I. C. R. 162; Thurber v. N. Y. C. & H. R. Co., 3 I. C. C. 473, 503., 2 I. C. R. 742; Re Excessive Rates on Food Products, 4 I. C. C. 48; Buchanan v. N. P. R. Co., 5 I. C. C. 7; Colorado F. & I. Co. V. S. P. Co., 6 I. C. C. 488, 489; Grain Shippers Asso. v. L. S. & M. S. R. Co., 9 I. C. C. 264, 286; Georgia Peach Growers Asso. v. A. C. L. R. Co., 10 I. C. C. 255, 277; Tift v. So. Ry. Co., 10 I. C. C. 548; National Machinery Co. v. P. C. C. & St. L. R. Co., 11 I. C. C. 581, 584; Society American Flor- ists V. U. S. Express Co., 12 I. C. C. 120, 125; Re Released Rates, 13 I. C. C. 550; Union ?ac. Tea Co. V. P. R. R. Co., 14 I. C. C. 545, 547; Darling v. B. & O. R. Co., 15 I. C. C. 78, 81; Union Made Garment Mfr's Asso. v. C. & N. W. Ry. Co., 16 I. C. C. 405, 407; Metropolitan Paving Brick Co. v. A. A. R. Co., 17 I. C. C. 197, 205; Forest City Freight Bureau v. A. A. R. Co., 18 I. C. C. 205, 206; Re Reduced Rates on Returned Shipments, 19 I. C. C. 409; Ford Co. V. M. C. R. R. Co., 19 I. C. C. 507, 509; Advances in Rates, 334: Charges for Transportation of Persons, etc. [§88 soiiableness of charges by public service corporations, lias been 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 sui)ported bjy the case of Smyth v. Ames/^ where it was said: "It can not be admitted that a railroad corporation maintaining a highway 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 transportation of persons or property on a railroad are exacted without reference to the fair value of the property used for the public or the fair value of the services rendered." In San Diego Land & Town Co. V. National City/" the Supreme Court reviewed and approved Western Case 1910, 20 I. C. C. 307, 355, where Mr. Lane said: "To be sure we can never depart from the ad valorem principle in rate making;" Investigation of Ad- vances in Rates on Grain, 21 I. C. C. 22, aO, 35; Investigation & Suspension Docket, 26 to 26c (Coal Rates), 22 I. C. C. 604, 623; Minneapolis Traffic Asso. v. C. & N. W. Ry. Co., 23 I. C. C. 432, 437; Bancroft-Whitney Co. V. C. N. 0. & T. p. Ry. Co., 24 I. C. C. 557, 558; Bernheim v. 0. R. & Nav. Co., 25 I. C. C. 156, 158; Union Tannery Co. v. S. Ry. Co., 26 I. C. C. 159, 163, where Mr. Commissioner Clements clearliy and forcibly* states the principle; Dixie Dairy Men's Asso. V. Y. & M. V. R. Co., 27 I. C. C. 618, 621; Scrap Iron Rates, 28 I. C. C. 525; Pardee Works v. C. R. R. Co., 29 I. C. C. 500, where value was under the facts therein, lim- ited to the hazard; but this opin- ion is not in accord with the general views of the Commission as elsewhere expressed; Reversed 39 I. C. C. 162; Rates on Flax seed 29 I. C. C. 633, 636; Molasses Rates to Knoxville 30 I. C. C. 313, 314; Railroad Com. of Montana v. B. A. & P. Ry. Co., 31 I. C. C. 641, 652; Five Per Cent. Case, 31 I C. C. 351, 419; Nebraska State Ry. Com. v. C. V. R. Co., 32 I. C. C. 41, 44; Anson Gilkey & Hurd Co. v. S. P. Co., 33 I. C. C. 332, 339, 341; Des Moines Commodity Rates, 34 I. C. C. 281, 288; Western Rate Ad- vance Case 1915, 35 I. C. C. 497, 606; and see Int. Com. Com. v. Chicago Great W. R. Co., 141 Fed. 1003, 1015 and cases cited; North- ern Pac. R. Co. v. North Dakota, 236 U. S. 585, 59 L. Ed. 735, 35 Sup. Ct. 429. 54. Covington & L. Turnpike Road Co. V. Sandford, 164 U. S. 578, 596, 41 L. Ed. 560, 566, 17 Sup. Ct. 198. 55. Smyth v. Ames, 169 U. S. 466, 42 L. Ed. 819, 18 Sup. Ct. 418. 56. San Diego Land & Town Co. § 88] Must be Just and Reasonable. 335 the ease 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 whicli rates may not ordinarily go, but the rule cannot be at all times applied. The commission has held that a differ- ence in the value of two car loads of peaches v^ould not justify a higher rate on the more valuable car." This is true be- cause it is impracticable to know the exact value of the service in any case, and, as will be frequently seen throughout this chapter, rate making is not subject to unalterable the- oretical rules. Judge Bethea^^ says of the rule: "This is considered an ideal method, when not interfered with by com- petition or other factors. * * * This method is considered practical and is based on an idea similar to taxation." Kirk- man, in The Science of Railways, 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 service to the shipper. This is the basis of remuneration for labor in every field of industry. Any other Avould bje oppressive, if not prohibitory. Its operation involves the exercise of discrimination. But discrimination is the instinct 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, some- thing to be discountenanced. This is because they do not con- sider the analogies of trade, or its merits. The charges of car- riers cannot be disproportionate to the thing handled. If more is charged than I can reasonably pay, it prohibits me from doing, business ; but if T am charged what I can afford, I am not treat- ed unjustly, so long as the general profits of the seller are not unreasonable. It is not an act of injustice to me that a car- rier charges a higher rate for my blooded horse than for my neighbor's mule, although they both occupy the same space. I cannot afford to pay the same rate for the brick used in the V. National City, 174 U. S. 739, 43 58. Int. Com. Com. v. Chicago G. L. Ed. 1154, 19 Sup. Ct. 804. W. R. Co., 141 Fed. 1003, 1015, 57. Georgia Peachgrowers' Asso. Noyes, Am. R. R. Rates, p. 53. V. Atlantic C. L. R. Co., 10 I. C. Int. Com. Com. v. Baltimore & C. 255. 0. R. Co., 43 Fed. 37, 53, 3 I. C. R. 192. 836 Charges for Transportation of Persons, etc. ["§ 89 consti'uction 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 rule, but the rule is subject to many modifications. His illustration of the blooded horse and the miile 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 making. Value of service is more a limitation on rates than a reason for increasing rates. Neither a high nor low value is controlling, but value should always be considered ; not only because of the hazard, pres- ently to be discussed, but because the Avorth of a service in- creases somewhat with the value of the commodity tran- sported. While the Transportation Act 1920, Sec. 15a. gives emphasis to the cost of the service, it is yet true: "Cost of transportation may be said to determine the minimum rate that may be charged as. on the other hand, the value of the service to the shipper markes the maximum of a reasonable rate or charge.^" § 89. Same Subject — Use to Which Commodity Put. — Mere diflierence in value or use of a different species of the same general class of commodities, furnishes no reason for diverg- ent rates. The Commission has said :"" "It may be fairly said in conclusion that the carriers in this case show no sufficient justification whatsoever for dis- criminating between the three kinds of fire-clay brick in- volved in this proceeding. The brick themselves are so .59. Bituminous Co. in C. F. A, 60. Stowe-Fuller Co. v. Pennsyl- Territory, 46 I. C. C. 66, 112 and vania Co., 12 I. C. C. 215, 220; cases cited. See also Nashville Tie Metropolitan Paving Brick Co. v. Co. v. L. & N. R. Co., 40 I. C. C. Ann Arbor R. Co., 17 i. C. C. 377, 381 and cases cited. East 197. Bound Trains Continental Canned Goods, 50 I. C. C. 62, 66. § 89] Must be Just and Reasonable. 33 < nearly alike in color that, being the same size and of the same weight, they are practically indistinguishable the one from the other. To make different 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 varieties, except by inquiring what use was to be made of these brick. Aside from the difficulty in learning what use the brick were to be put to upon reaching their destination, we cannot regard a classification as scienti- fic, or a difference in rates as well based, which is altogether founded upon a distinction that has no transportation signi- ficance. "Moreover, such a differentiation, 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 measurement and of the same value and of the same general appearance and of the same weight as another might be given a distinct 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 distinc- tion 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 the shippers, and to require the carriers, if they would avoid the penalty of the law, to make a practically impossib/le examination into the use to which each shipment of these brick was put." The subject is extensively discussed in Ee Restricted Rates,'" and the conclusion stated "that the carrier has no right to 61. Re Restricted Rates, 20 I. R. Co., 21 I. C. C. 522, 527; Re C. C. 426. See also Carter White Rates on R. R. Fuel & Other Lead Co. v. Norfolk & W. Ry. Coal, 36 I. C. C. 1. Association Co., 21 I. C. C. 41; Ohio Allied of Union Made Garments Mfrs. Milk Product Shippers v. Erie of America v. Chicago & N. W. o,')8 Charges for Transportation op Persons, etc. [§ 89 attempt to dictate the uses to which commodities transported by it shall be put in order to enjoy a transportation rate:" Tn the course of the opinion Conference Ruling 34 was quoted as follows : ' ' A tariff providing for reduced rates on coal used for steam purposes, or that the carrier will refund part of the regular tariff charges on presentation of evidence that the coal was so used, is improper and unlawful — that is to say, that the carrier has no right to attempt to dictate the uses to which commodities transported by it shall be put in order to en- joy a transportation rate." §89. Cost of Assemblying Theory. — Carriers have attempted to equalize by a system of rates the opportunities of groups of shippers, especially is this true as to manufacturers. Simi- larly carriers have attempted to overcome geographical dis- advantages by an equalizing system of rates. Economic or geographical equalization is not the province of a carrier, nor is such equalization a factor which determines in con- sidering the reasonableness of a particular rate or a system of rates.'^ § 90. Value of the Commodity, Its General Utility and Dang-er of Loss. — The commission in the Tift and Central Yellow Pine cases,"'' as reasons for its conclusion that the rates there under investigation were illegal and unreasonable, said, "Lumber is an inexpensive freight. * * * j^ is not what is known as perishable traffic, * * * and in case of accident, the damage is insignificant. * * * Lumber is moreover an article of general utility." Each of these cases received the approval of the Supreme Court."* The element of value of the commodity transported forms a proper considera- R. Co.. 16 I. C. C. 405; Whit- v. 111. Cent. R. Co., 10 I. C. C. comb V. Chicago & N. W. Ry. 505. Co., 15 I. C. C. 27; Northbound 64. So. Ry. Co. v. Tift, 148 Fed. Rates on Hardwood, 32 I. C. C. 1021, 206 U. S. 428, 51 L. Ed. 521. 1124, 27 Sup. Ct. 709; 111. Cent. 62. Iron Ore Rate Cases, 41 R. Co. v. Int. Com. Com., 206 U. I. C. C. 181, 188, 189. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 63. Tift V. So. Ry. Co., 10 I. C. 700. C. 548; Central Yellow Pine Asso. § 90] Must be Just and Reasonable. 339 tion to be taken into account 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 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 service 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 commerce, rates yielding moderate profit are both justifiable and necessary." "It is axiomatic that rates depend largely upon value,"" and "value has long been one of the established measures of a rate,""* but vaUie and not use is one of the determining factors in classification.'"' That value should be considered in rate-making has been recognized by the Supreme Court.'" The correctness of the rule, that value should be considered in making rates, and the difficulty of applying the rule, is forcefully stated by the commission in the Overall case^^ 65. Notes 43 and 53 supra, this Ry. Co., 40 I. C. C. 594, 596; Nat'l chapter. Howell v. New York, L. Society of Record v. A. & R. R. E. & W. Ry. Co., 2 I. C. C. 272, 1 I. Co., 40 I. C. C. 347, 3.55. C. R. 162, 172. See aliso Imt. 69. Re Suspension of Western Com. Com. v. Chicago Great W. Classification No. 51', 25 I. C. C. Ry. Co., 141 Fed. 1003, 1015, and 442, 499. See also Union Tan- citations, ning Co. v. Southern Ry. Co., 26 66. Re Alleged Excessive Rates I. C. C. 159, 163. on Food Products. 4 I. C. C. 116, 70. Kansas City Southern Ry. 3 I. C. R. 93, 104. See also Mayor. Co. v. Carl, 227 U. S. 639, 650, 653, etc., of Wichita v. Atchison, T. & 57 L. Ed. 683, 33 Sup. Ct. 391, cit- S. F. Ry., 9 I. C. C. 534, 548; ing Re Released Rates, 13 I. C. C. Farmers', etc.. Club v. A. T. & S. 550; Southern Oil Co. v. Southern F. Ry. Co., 12 I. C. C. 351, 360. Ry. Co., 19 I. C. C. 79; Miller v. 67. Re Reduced Rates on Re- Southern Pac. Co., 20 I. C. C. 129; turned Shipments, 19 T. C. C. 409, Northern Pac. R. Co. v. North 418. Dakota 236 U. S. 585, 50 L. Ed. 735, 68. Fels & Co. v. Pennsylvania 35 Sup. Ct. 429. R. Co., 25 I. C. C. 154, 158, and 71. Association of Union Made note 53, supra, this chapter. Tex- Grarment Mnjfrs. of Ajnerica v. olite Chemical Co. v. Tex. & Pac. Chicago & N. W. Ry. Co., 16 I. S-tO Charges for Transportation of Persons, etc. [§ 91 where, although recognizing that equitably these cheap cotton garments were entitled to a classification different from the more valuable woolen clothing, relief was denied. When 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/^ Iron should not bear a rate equal to the average of all rates." Coaf and salt"'' are articles of low grade traffic and entitled to relatively low rates. § 91 . Value of the Commodity — Difference between the Raw and the Manufactured Product. — The more valuable the com- modity sliii)ped the greater the loss to the carrier should the commodity be damaged or destroyed while in course of trans- portation. This and the rule just discussed relating to the value of the commodity justifies the general rule that the manufactured product should take a higher rate than the raw product from which the finished product is made. This general rule, the Commission has held, is founded in reason "because ordinarily there is a substantial difference between the value of the one and of the other, and frequently there is a greater degree of risk incident to the transportation and care of the manufactured product than of the raw ma- terial."" While this general principle has been frequently applied," the rule has its exceptions. Between the rates on live stock and the rates on the products of live stock there is no uniform C. C. 405. See also Caldwell Co. v. Ry. Co., 5 I. C. C. 299, 4 I. C. R. Chicago, I. & L. Ry. Co., 20 I. 33. C. C. 412. 76. East St. Louis Cotton Oil 72. Kindel v. Adams Express Co. v. St. Louis & S. F. Ry. Co., Co., 13 I. C. C. 475, 485. 20 L C. C. 37. 73. Colorado Fuel & Iron Co. v. 77. Bulte Milling Co. v. Chicago So. Pac. Co., 6 I. C. C. 488, 515. & A. R. Co., 15 I. C. C. 351, 364; 74. Denison Light & Power Co. Massee & Felton Lumber Co. v. V. Missouri, K. & T. Ry. Co., 10 Southern Ry. Co., 23 I. C. C. 110; I. C. C. 337; Sligo Iron Stove Co. Association of Union Made Gar- V. Atchison, T. & S. F. Ry. Co., 17 ment Mnfrs. of America v. Chi- I. C. C. 139; Sligo Iron Stove Co. cage & N. W. Ry. Co., 16 I. C. V. Union Pac. R. Co., 19 I. C. C. C. 405; American Milling Co. v. 527. Pierre Marquette R. Co., Unrep. 75. Anthony Salt Co. v. Mo. Pac. Op. 328. § 92] Must be Just and Eeasonable. 341 relation. In some territory the manufactured product takes the higher rate, in other sections live stock and packing house products take the same rates/* So with grain and grain products/" § 92. Competition or Its Absence Considered in Determin- ing Reasonableness of Rate. — In the Central Yellow Pine and the Tift cases,"" the commission had under consideration a rate fixed by the concerted and concurrent action of the carriers and there said : "AVe deem it unnecessary to express an opinion as tw whether this concert of action in fixing the advanced rate amounts to an unlawful agreement under the so-called "Anti- Trust Act" — the enforcement of that act being a matter prop- erly 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 reasonableness and validity of the ad- vanced rate, the result of that action. When rates are es- tablished by concert of action and previous understanding be- tween 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 incon- sistent with competition and, during the time the rates fixed by concert of action are maintained, the effect, so far as competition is concerned, is the same as if there was a binding agreement to maintain such rates. 78. Chicago Board of Trade v. Farmers. Merchants & Shippers C. & A. R. Co., 4 I. C. C. 158; Club v. A. T. & S. F. R. Co., 12 Squire & Co. v. M. C. R. Co., 4 I. C. C. 351; Howard Mills Co. I. C. C. 611; Chicago Live Stock v. M. P. Ry. Co., 12 I. C. C. 258; Exchange v. C. G. & W. R. Co., Investigation of Advances in 10 I. C. C. 429; Int. Com. Com. Rates on Grain, 21 I. C. C. 22, V. C. G. & W. R. Co., 141 Fed. 32; Kansas-California Flour 1003; Investigation of Alleged Rates, 29 I. C. C. 459, 32 I. C. Unreasonable Rates on Meat, 20 C. 602; Wheat Rates from Okla- I. C. C. 160; Sinclair v. C. M. & homa, 30 I. C. C. 93: Western St. P. R. Co., 21 I. C. C. 490, Advance Rate Case 1915, 35 I. 506; Western Rate Advance Case, C. C. 497. 1915, 35 I. C. C. 497. 80. Central Yellow Pine Asso. v. 79. Mayor, etc., of Wichita v. A. I. C. C. Co., 10 I. C. C. 505; Tift T. & S. F. R. Co., 9 I. C. C. 534; v. So. Ry. Co., 10 I. C. C. 548. 342 Charges for Transportation of Persons, etc. [§ ^2 *' 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 competing 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, Avas intended to encourage normal competition. It forbids pooling for the very purpose of allowing competition 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 sup- pression restrains trade and commerce by "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. 259, 287, 288, 290, 19 Sup. Ct. Rep. 25 ; 1 Fed. Anti-Trust Dec. 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 conduces to the reasonableness of rates or to the protection of the public from unreasonably high or excessive rates. In I'^nited States v. Freight Association, supra, the Supreme Court says, "competition will, itself bring charges down to what may be reasonable. (166 U. S. 339, 41 L. Ed. 1027, 17 Sup. Ct. Rep. 540). The act to regulate commerce (§ 1), in prohibiting unreasonableness of rates, in effect forbids what- ever 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 untrammeled competition or the result of a concert of action or combination between the carriers establishing and maintaining them. The advanced rates complained of cannot be claimed to be the outcome of competition because the natural, direct and im- mediate effect of competition is to lower (United States v. Joint-Traffic Asso., 171 U. S. 505, 577, 43 L. Ed. 259, 290, 19 Sup. Ct. Rep. 25), rather than advance, rates. The advanced rates must be presumed to be higher than rates which unre- strained competition would produce."" 81. Tift V. So. Ry. Co., 138 Fed. Com.. 206 U. S. 441, .51 L. Ed. 753; 111. Cent. R. Co. v. Int. Com. 1128, 27 Sup. Ct. 700. § 93] Must be Just and Reasonable. 343 Mr. Commissioner Prouty, in Re Class and Commodity Rates from St. Louis to Texas Common Points, 11 C. C. 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 rea- sonable 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 regulate commerce in 1887 which prohibits pool- ing. It was also the ])urpose of the Sherman Anti-Trust Act of 1890 wliich foi'bids all agreements in restraint of interstate commerce, and as interpreted by the Supreme Court of the United States, all agreements b)?tween carriers as to the rate of freight applied to interstate shipments. The idea has received the sanction of judicial interpretation and the ap- proval of judicial dicta. It i.s impossible to read the utter- ances of the Supreme Court in the Trans -Missouri case and the Joint Traffic Association case without the conviction that a majority of that tribunal Avere of the opinion not only that competition could be relied upon to regulate freight rates but that it was the safest and best means to that end." § 93. Same Subject. — The principle applied by the Com- mission has received the approval of the courts. The Su- preme Court has said; "The interstate commerce law was intended to promote trade.""' And in Tut. Com. Com. v. Chicago G. W. R. Co. :'' "It must be remembered that railroads are the private property of their owners; that while, from the public char- acter of the work in which they are engaged, the public has the power to prescril)e rules for securing faithful and efficient service and equality between shippers and communi- ties, yet, in no proper sense, is the nublic a general manager. As said in Interstate Commerce Commission v. Alabama Mid- land R. Co., 168 U. S. 144, 172, 42 L. Ed. 414, 425, 18 Sup. 82. Louisville & N. R. Co. v. 83. Int. Com. Com. v. Chicago Behlmer, 175 U. S. 648, 44 L. Ed. G. W. R. Co., 209 U. S. 108, 119, 309, 20 Slip. Ct. 209. 120, 52 L. Ed. 705, 712, 71S, 28 Sup. Ct. 493. 344 Charges for Transportation of Persons, etc. [§ 93 Ct. Rep. 45, 51, quoting from the opinion in Cireuit Court of Appeals samo 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 unreasonable, and that they shall not unjustly discriminate so as to give undue preference or dis- advantage to persons or traiRc 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 bbsiness, to classify their trai^c, to ad- just and apportion their rates so as to meet the necessities of commerce and of their own situation and relation to it, and generally to manage their important interests upon the same principles which are regarded as sound and adopted in other trades and pursuits.' ''It follows that railroad companies may contract with shippers for a single transportation or fcr successive trans- portations, subject though it may be to a change of rates in the manner provided in the interstate commerce act (Armour Packing Co. v. United States, 209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. Rep. 528), and also that, in fixing their own rates, they may take into account competition with other carriers, provided only that the competition is genuine, and not a pre- tense (Interstate Commerce Commission v. Baltimore & 0. R. Co.. 145 IT. S. 26;^, 36 L. Ed. 699, 4 Inters. Com. Rep. 92, 12 Sup. Ct. Rep. 844; Texas & P. R. Co. v. Interstate Commerce Commission, 162 IT. S. 197, 40 L. Ed. 940. 5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666; Interstate Commerce Commission v. Alabama IMidland R. Co. supra; Louisville & N. R. Co. v. Behlmer, 175 V. S. 648, 44 L. Ed. 309, 20 Sup. Ct. Rep. 209; East Tenn., V. & G. R. Co. v. Interstate Commerce Commission, 181 V. S. 1, 45 L. Ed. 719, 21 Sup. Ct. Rep. 516; Interstate Commerce Commission v. Loui.sville & N. R. Co., 190 U. S. 273, 47 L. Ed. 1047, 23 Sup. Ct. Rep. 687). "It nuist also be remembered that there is no presumption of wrong arising from a change of rate by a carrier. The presumption of honest intent and right conduct attends the action of carriers as well as it does the action of other cor- porations or individuals in their transactions in life. Un-"^ doubt edly, when rates are changed, the carrier making the § 93] Must be Just and Eeasonable. 345 change must, Avlien properly called upon, be able to give a good reason therefor; but the mere fact that a rate has been raised carries with it no presumption that it was not right- fully done. Those presumptions of good faith and integrity which have been recognized for ages as attending human ac- tion have not been overthrown 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 car- riers" and without an illegal combination between it and othej- 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 th? carrier should not only show "a good reason therefor," but the rate so ad- vanced is presumptively illegal, and the carrier should be re- quired clearly to show that it is not unreasonable. Judge Speer, with tbat ability and clearness that usually mark his opinions, in the case of Tift v. So. Ey. Co., supra, states the rule correctly and at length." Tt is true that the commission has no authority to enforce the Sherman Anti-Trust Law and cannot penalize carriers who may violate it. but the commission can and should, when considering the difficult question of what is a reasonable rate, lock to the causes that produced the rate and the method adopted in putting it into effect. Congress has been repeat- edly importuned to permit interstate carriers to combine, and has so far refused to amend the Sherman Anti-Trust Law, in that respect. That the law applies to carriers, and that any contract or combination in restraint of trade between the states violates the act has been definitely settled in the Trans- ]\Iissouri Freight and Joint Traffic Association Cases cited supra section 92. Tt is probably true that freight associations are necessary to the proper conduct of the great business of 84. Tift V. So. Ry. Co., 1.38 Fed. 206 U. S. 428, 51 L. Ed. 1124, 27 753, 761, 762, 763. Affirmed, So. Sup. Ct. 709. Ry. Co. V. Tift, 148 Fed. 1021, 346 Charges for Transportation of Persons, etc. [§ O-t 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 as that of the carriers, and rates made by such associations should in some manner be investigated and found reason- able before becoming efifective. Of course, if a rate is rea- sonable, although made as the result of concert of action, it cannot, for that reason alone, be condemned by the com- mission.*" The Transportation Act 1920 changes the principle of com- petition, but the foregoing discussion of the reasons why monopoly was, prior to that Act, regarded as harmful, is an ap])ropriate statement in deciding what facts should be con- sidered in judging whether or not particular rates are reason- able. The 1920 Amendment permits pooling under certain conditions, opens terminals to joint uses and makes the anti- trust laws inapplicable to railroads and invites consolidation of competitive lines.^' § 94. Same Subject — Rule Since 1910. — The Amendment of 1910, as changed in 1920, provides: "At any hearing involving a rate fare or charge increased after January 1, 1910, or of a rate fare or charge sought to be increased after the passage of this Act, the burden of proof to show that the increased rate, fare or charge, or proposed increased rate, fare or charge is just and reasonable shall be upon the carrier."*' The Tift case was decided before this provision was adopted, and at the time when the burden of proof was on him who attacked a particular rate. The rule applied where rates were advanced as the result of concerted action was a rule of evidence, the principal effect of which was to shift the burden of proof. Such rule in so far as that effect is concerned has now no ap- 85. China & Japan Trading Co. a rate establislied in consequence V. Ga. R. Co., 12 I. C. C. 236, of an agreement between car- 241, and cases there cited. En- riers. R. R. Com. of Texas v. At- terprise Mfg. Co. v. Ga. R. Co., chison, T. & S. F. Ry. Co., 20 1. 2 I. C. C. 451. 456; Board of C. C. 463, 466. Bristol Tenn. v. Virginia & S. 86. See Sec. 63a, supra, and W. Ry. Co., 15 I. C. C. 453. The chapter 9, post. Commission has not always in- 87. See Sees. 399 and 505, post. dulged any presumption against § 95] Must be Just and Reasoxable. 347 plication, as the statute has itself placed the burden on the carrier increasing the rate. Since 1910 the Commission gives less weight to the fact of concerted action, both because of the effect of the statute and because as a practical matter carriers can advance few rates except by unanimous consent. The Transportation Act 1920 removes all necessity to consider con- certed action. § 95. Same Subject — Conclusion. — The carriers are permit- ted to meet competition, provided that in doing so, they do not transport at a loss. Market competition frequently may re- quire a carrier to transport goods a long distance at a com- paratively 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. But it would be unjust to the carrier to make this kind of traffic a basis for all rates. Kirkman, speaking of this kind of com- petition, says :*' "Competition is a potent factor in determining rates, and is general in the case of railroads. Thus the facility and cheap- ness with M'hich 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 other local influences. Local competition, while valuable, is not enough to enforce equitable conditions. It must be supplemented by the competitive markets of the world, including the diversified carriage of mankind Hfy land and water. Kichness of soil, facilities of production, the price of labor and rates of local carriers from points of pro- duction to places of general consumption influence the charges of other carriers in every quarter of the globe. It is no ex- aggeration 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." 88. Science of Railways, vol. 8, pp. and 9. 348 Charges for Transportation of Persons, etc. [§ 95 This quotation would not be accurate if applied to competi- tion generally ; it does correctly describe market competi- tion. Water competition, where it exists, atfects rates in a similar way 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 competi- tion is discussed by IMr. Commissioner Prouty as follows.** "Without doubt water competition is made to do most heroic service in many portions of the United States in justi- fying anomalies in the freight rate, but we are constrained to believe that this competition between the Atlantic and Pacific Oceans is not a thing of the imagination, but rather of intense reality with which these rail carriers must deal. "When the rail lines first reached the Pacific Coast all merchandise was brought in by water; at the end of several years the greater portion of it still came by that means. While 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 amount carried in recent years. From the day the transcontinental railroad touched the Pacific Ocean its strug- gle has been to divert b'usiness 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 89. Business Men's League of Commerce of Newport News v. St. Louis V. Atchison, T. & S. F. Southern Ry. Co., 23 I. C. C. Ry. Co., 9 I. C. C. 318, 359, 360. 345. But a competing water route Low rate induced by water com- will not justify unreasonable petition, Re Advances in Rates rates, Southern Pac. Co. v. Inter- for the Transportation of Flax- state Com. Com., 219 U. S. 433, seed, 23 I. C. C. 272, 275. Water 55 L. Ed. 283, 31 Sup. Ct. 288. competition creating dissimilar See amendment as to water corn- conditions, Georgetown Ry. & petition suppressed by rail car- Light Co. V. Norfolk & W. R. riers, Sec. 351, i)ost. Co., 2 I. C. C. 144; Chamber of § 96] Must be Just and Reasonable. 340 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 Ioav in cents per hundred pounds, but of as great value, all things considered, as the water rate. Most rates between 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." There was competition in service prior to 1920, al- though no real competition in rates. How far competition in service will be reduced by the Transportation Act 1920 re- mains to be seen.*" § 96. Rates Affected by Amount of Tonnage. — The commis- sion has said: "The business of the defendants (the carriers), not only in lumber, but in traffic in general, has grown and is growing largely, and in view of the fact that they deprive their franchises, or right to exist, from the public, the lumb'er shippers as part of the public might plausibly, to say the least, claim that they have a right to participate 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 recog- nized ]iy cari'iers. It is because of the greater density of traf- fic north of the Ohio River in Central Freight Association ter- ritory and in the eastern territory that rates in general are made materially lower in those territories than in the south- ern territory ."' This principle was restated by Mr. Com- missioner Clements, in Farrar v. So. Ry. Co., 11 I. C. C. 632, 637. In a later case Mr. Commissioner Prouty, said:'" 90. Tift V. Southern Ry. Co., 138 92. Re Class and Commodity Fed. 753; Science of Railways, Rates from St. Louis to Texas Vol. 8, pp. 10, 11; Class and Com- Common Points, 11 I. C. C. 238, modity Rules, 38 I. C. C. 411, 431. 273, 274. For other cases apply- 91. Tift V. Southern Railway ing the principle, see Re Ad- Co., 10 I. C. C. 548, 583. vances in Rates, Eastern Case, 20 I. C. C. 243, 275; National Hay 350 Charges for Transportation of Persons, etc. [§ % "It is well understood that freight rates should decline as a country develops and as business therefore mcreases * * * "It was urged that the improvements '.-equired for these economies, 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. Undovibtedly the making of these improve- ments has required 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 ad- ded expenditure must be considered in determining the rea- sonableness of those rates, but does not justify an advance in rates. What has been the purpose of these improvements? Certainly to decrease the cost of operation, to handle freight and passengers at less expense than they could be handled in the former way. It is a strange logic which imposes upon 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 prosecu- tion of the necessary work has interfered with the movement of traffic and thereby added to the cost of this movement. But all this is temporary and comparatively insignificant and should not be made an excuse for a permanent advance in rates. "It is urged that the increased volume of traffic has neces- sitated these outlays ; that otherwise the business could not be handled. And that is probably true: but increase of traffic, while it may produce temporary embarassment, should re- duce, not advance, rates." The rule stated in the Tift case supra is too broad. While increased density of all traffic affects rates and justifies lower rates, increased density of a particular traffic may not neces- sarily have that eflPect. If there is a large volume of a par- ticular traffic with a light density of all traffic, higher rates may be necessary than when there is a lesser volume of the particular traffic with a greater volume of all traffic. It is however, unquestionably true that a large volume of a par- ticular traffic is a fact which ought to be considered in deter- mining what should be the rate thereon. § 97] Must be Just and Reasonable. 351 § 07 Same Subject. — Further Limitations of the Rule. — The rule may not be api)lied too far. A traffic official of one of the defendants in the Morgan Grain case'"' testified that the amount of traffic offered in 1907 was so large as to pass the ''economic maximum," and, therefore, the carriers not hav- ing 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 meet economically its obligations to the shippers, it would not be just to require the application of the rule that the greater the tratfic the less relatively should be the rate. Al- though if the condition of more traffic than could be eco- nomically 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 quotation supra from the opinion of j\Ir. Commissioner Prouty. § 98. Density of Traffic. — Within reasonable limits, the ,greater the volume of all traffic the lower should be the rates. This is obvious and is the practice of railroads generally In the densely populated sections of the country rates are on a lower level than in the sparsely settled sections. The statement of the Commission, speaking through Mr. Commissioner Prouty, in Ee Class and Commodity Rates, supra, applies here. Rates should decrease as density of traffic increases,"* and the fact that a region is "comparatively thinly populated""'' map justify higher rates."' and Grain Association v. Michi- 94. Re Advances in Rates, — gan C. R. Co., 19 I. C. C. 34, 47; Eastern Case — , 20 I. C. C. 243, Hydraulic Press Brick Co. v. 275. Mobile & O. R. Co., 19 I. C. C. 9.5. Cherokee Lumber Co. v. At- 530, 531; Virginia Carolina Chem. lantic C. L. R. Co., 27 I. C. C. 438. Co. V. St. Louis, I. M. & S. Ry. 96. Stiritz v. New Orleans M. & Co., 18 I. C. C. 1; Ozark Fruit C. R. Co., 22 I. C. C. 578; Mem- & Grain Assn. v. St. L. & S. F. phis Freight Bureau v. Illinois R. Co., 16 I. C. C. 134, 139; Bur- Cent. R. Co., 27 I. C. C. 507, 511; gess Transcontinental Freight Railroad Com. of Ark. v. M. & N. Bureau, 13 I. C. C. 668, 675. A. R. Co., 30 I. C. C. 488; Rail- 93. Morgan Grain Co. v. A. C. L. way Com. of Montana v. B. A. & R. Co., 19 I. C. C. 460. P. Ry. Co., 31 I. C. C. 641, 648, 352 Chaeges for Transportation of Persons, etc. [§ 99 § 99. Distance and Revenue per Ton Mi^e. — Judge Cooley, then eliairiiian of the commission, in a head note stated this rule:'" "As a rule in the transportation of freight by rail- roads, 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 proportion every hundred miles after the first, arising out of the character and nature of the service per- formed and the cost of the service ; and thus staple com- modities and merchandise are enabled to bear the charges of this mode of transportation from and to the most distant portions of the country." Judge Cooley also pointed out that this rule is not only not abrogated but is sanctioned by the Act to Regulate Commerce. The general principle has been applied by the commission in other cases.*^ The rule is. hoAvever, subject to exceptions,"^ and when comparing rates, "the rate per ton mile is not always the measure of a reason- able rate, and, rightly applied, w^ould make distance alone the gauge for transportation charges, but it is always valuable as atfording a basis of comparison for relative rate b^urdens."" Mr. Commissioner Prouty says, "The rate per ton mile, while often instructive, is not by any means a fair index of a rea- sonable rate.""^ While the rate per ton mile usually de- creases as distance increases, the rate per ton mile on one road is not necessarily a safe guide in fixing a rate on another road operatiiig under different conditions. 649; Commercial Club of Mitchell, I. C. C. 22, 23; National Hay S. Dak. V. A. & W. Ry. Co., 46 I. Assn. v. Michigan C. R. Co., 19 C. C. 17. I. C. C. 34, 47; Muscogee Traffic 97. Farrar v. East Tenn., Va. & Bureau v. Atchison, T. & S. F. Ga. Ry. Co., 1 I. C. C. 480, 1 I. C. Ry. Co., 17 I. C. C. 169, 173. R. 764. 99. Manufacturers' and Job- 98. Business Men's Asso. v. Chi- bers' Union v. Minneapolis & St. Cage, St. P. M. & O. R. Co., 2 L. Ry. Co., 4 I. C. C. 79, 3 I. C. R. I. C. C. 52, 2 I. C. R. 41; Busi- 115. ness Men's Asso. v. Chicago & 100. Farrar v. So. Ry. Co., 11 I. N. W. Ry. Co., 2 I. C. C. 73, 2 C. C. 640. 649. I. C. R. 48, 52; Gustin v. Atchi- 101. Re Proposed Advances in son, T. & S. F. Ry. Co., 8 I. C. Freight Rates, 9 I. C. C. 383, 396; C. 277, 288. Re Investigation of Butte Milling Co. v. Chicago & Advances in Rates on Grain, 21 A. R. Co., 15 I. C. C. 351, 362. § 99] Must be Just and Reasonable. 353 The rule that as the distance increases the rate per mile should decrease, as has been so frequently said of all formula^j of rate-making, must be applied with due regard to all the circumstances and conditions surrounding the making of the rate or rates under discussion. The principle is but a rule of evidence, a fact which may justify a particular deduction, and not an inflexible rule of law. The question of expense in- curred in earning the particular revenue must not be lost sight of,'°" and the formula is but one of many considerations in rate adjustments/"'' Car mile and train mile earnings are frequently used in comparing rates and, as with the ton mile comparisons, may constitute probative evidence.'"* What is sometimes called the rate per ton mile, more prop- erly the revenue per ton mile which the rate for the distance yields, reflects the rate and the length of the haul only, and is obtained by dividing the rate per ton for the total haul by the length of the haul. Students of the principles applied to rate-judging have extended the comparisons by using revenues per gross ton mile both with and without a consideration of the empty haul incident to a particular traffic. The revenue per net ton mile gives no consideration to the ratio of revenue paying load to the total load hauled, while the reve- nue per gross ton mile reflects both the weight of the com- modity hauled and the weight of the car in which it is hauled. Some commodities, such as oil, coal, live stock and meat pro- ducts, are transported in special equipment which from neces- sity is hauled nearly as great distances empty as loaded. Com- 102. Nebraska State R. Com. v. 104. Wisconsin Steel Co. v. Cliicago, B. & Q. R. Co., 23 I. Pittsburg & L. E. R. Co., 27 I. C. C. C. 121, 125. 126. In Kansas v. C. 152, 162; Lake Cargo Coal Rate A. T. & S. F. Ry. Co., 27 I. C. Case, 22 I. C. C. 604, 620; con- C. 673, owing to lighter density strued. Rock Springs Distilling of traffic rates for the longer Co. v. Illinois C. R. Co., 27 I. C. distances in West Kansas were C. 54, 57; Milburn Wagon Co. v. approved which yield a revenue Toledo, St. L. & W. R. Co., 27 I. per net ton mile higher than for C. C. 63, 66; Re Export Rates of the shorter distances. Flax Seed Products, 27 I. C. C. 103. Ashgrove Cement Co. v. 246, 248; Little Rock Chamber of Atchison, T. & S. F. R. Co., 23 Commerce v. St. Louis, I. M. & I. C. C. 519, 524. S. R. Co., 26 I. C. C. 341, 343. 354 Charges for Transportation of Persons, etc. ['§> 99A parisons wliieli include these additional considerations are obviously nu)re valuable than comparisons of revenue per net ton mile and revenue per car mile. In the Western Rate Advance case of 1915, those more comprehensive comparisons were presented and relied on as tending to show the propriety of selecting for rate advances the commodities affected by the tariffs there under suspension and investigation/"^ There are eases where the car mile comparison is the better/"" and light density of traffic at the end must be considered."" § 99A. Extra Line Hauls. — Prior to the date of the passage of the Transportation Act 1920 the Commission practically without exception, save when the haul exceeded five hundred miles, applied the principle that for a two or more line haul the charges might be greater by the cost of switching than for a one line haul for a similar distance.^"* The principle merely raises a presumption of fact and is not a rule of law.^"" "Single line" comprehends all lines under the same controlling interests."" The presumptive force of the principle lost all or substantially all of its support when Congress by the 1920 Act practically terminates whatever competition had theretofore existed among the railroads."' 105. Western Rate Advance Case, 1915, 35 I. C. C. 497. 106. Rice from Texas & Louisi- ana, 40 I. C. C. 285, 289; Chamber of Commerce of Johnson City v. S. Ry. Co., 46 I. C. C. 527, 531; Western Cement Rates 48 I. C. C. 201. 107. Commercial Club of Mit- chell, S. Dak., V. A. & W. Ry. Co., 46 I. C. C. 1, 7. 108. Sheridan Chamber of Com- merce Case, 26 I. C. C. 638, 649 and cases cited; Hayden Bros. Coal Corp. v. D. & S. L. R. R. Co., ?.9 I. C. C. 94, 106; Northwestern Cooperage &' Lumber Co. v. M. St. P. & St. M. Ry. Co., 43 I. C. C. 629, 632. 109. Stonega Coke & Coal Co. v. L. & N. R. R. Co., 39 1. C. C. 523, 551; The Mississippi River Case, 28 I. C. C. 47, 59. 110.. Capital City Oil Co. v. Y. & M. V. R. Co., 39 I. C. C. 141, 146; Wellington Mines Co. v. C. & S. Ry. Co., 39 I. C. C. 203, 205; Royster Guano Co. v. A. C. L. R. Co., 50 I. C. C. '!4, 43. 111. Car Service Provision para- graphs 10 to 17, Sec. 1 of Act, sec- tions 344 A to 344H, post; joint use of terminal facilities, paragraph 4 of section 3 of Act, Section 347a, post; consolidation of carriers, paragraph 4, section 5 of Act, section 352b, post; anti-trust laws made inapplicable, paragraph 8, section 5 of Act, section 352g, post; routing further regulated, para- graphs 9 and 10, section 15 of Act, sections 401 and 402, post, V 100] Must be Just and Reasonable. 355 § 100. General Business Conditions. — How far rates may be affected by the business situation of the country 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 increase the price of both labor and equipment necessary for the carrier to operate, thus affecting "the cost of service," and consequently furnishing a fact that is an element among the many considerations entering into a deter- mination of Avhat is the proper rate to be charged for trans- portation. But the mere fact of general prosperity, or of general depression, will not justify a carrier in absorbing the one or shifting the other to 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 de- mand.""^ "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 prev- alent among traffic managers, that a rate may be made as high as 'the traffic will bear.'"^'" AYhen rates have been reduced because it was necessary to meet conditions caused by depressed financial conditions, such rates may be advanced in prosperous times to the point where they are reasonable. ]\Ir. Commissioner Prouty, in the able discussion of the prin- ciples 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 providing a "fair return'' on "ag 113. Tift v. So. Ry. Co., 10 I. gregate value" paragraphs 2, 3, 5, C. C. 548, 582; Central Yellow Pine 6, section l'5a of Act, sections 405b Asso. v. 111. Cent. R. Co., 10 I. to 405f, j)ost. C. C. 505. 112. Re proposed Advances in 114. Re Class and Commodity Freight Rates, 9 I. C. C. 382, 405. Rates from St. Louis to Texas See also Freight Bureau of Cin- Common Points, 11 I. C. C. 238, cinnati v. Cincinnati, N. O. & T. 272, 273. P. Ry. Co., 6 I. C. C. 195, 4 L C. R. 592, 617. 1156 Charges fob Transportation of Persons, etc. [§ 100 selling price of the article traiisi)orted that they produce no effect 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 incident which occurred in this very case strongly empha- sizes the absurdity of the claim. "Cotton is an important item of traffic upon the Interna- tional & Great Northern Railroad, one of these respondents. It is well known that the ravages of the boll weevil have seriously affected the cotton crop in certain parts of Texas. The attorney for the International & Great Northern, himself, a former railroad commissioner of Texas and a thoughtful student of this subject, gave as a reason for the advances in question in wiiich 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 reduced the amount of cotton for trans- portation ; that in consequence of the failure of this important crop the whole country 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 with wiiich 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. The}^ 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 plentiful and business good people ride more, buy more, new industries are being established and old industries are active, traffic increases and out of such increased traffic the railway obtains, by automatic action so to speak, Avithout any advance in its rate a large share in the general prosperity." <§ 1,00] Must be Just and Reasonable. 357 The opinions of Commissioners Clements and Proiity, 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 under commercial conditions." It' the prosperity of the country adds to the density of the traffic, it mic;ht, in some cases, furnish a reason for reductions in rates. In thp 1910 Western Rate Advance case, p. 315,'" the broad view which the Commission may take was discussed. It was there said: "It must be borne in mind that the Com- mission is not a court of law, its function is to apply the mandatory and restrictive provisions of the Act to Regulate Commerce to stated conditions of fact. We must regard the problems presented to use from as many standpoints as there are public interests involved. * * * The reasonableness of a rate is to be determined by no mere mathematical cal- culation. ' ' And in the further course of the opinion in that case, p. 317 : "Tt is doubtless true that in its control over the charges which our railroad may make this Commission exercises a power so extensive as to justify the broadest consideration of the eco- nomic and financial effects of its orders." Notwithstanding the fact that business conditions should be considered in making and judging rates, it is not permissible to fix rates loAver than are just and reasonable, because of the inability of a particular commodity to blear such rates. Mr. Commissioner Daniels, citing prior decisions of the Com- mission in deciding the claim for lesser rates based upon the statement that the prices received were less than the actual cost of production, said:"" "Tt should be observed, however, that the reasonableness or unreasonableness of freight rates cannot be gauged solely by the ability or inability of ship- pers under depressed prices to market their products at the 115. Advance in Rates, — Wes- 59 L. Ed. 735, 35 Sup. Ct. 429; tern Case — , 20 I. C. C. 307, 315, see also Lumber Rates from 317. Helena, Ark., 41 I. C. C. 565, 577; 116. Railroad Com. of Montana Southeastern Lumber, 42 I. C. C. V. B. A. & ?. Ry. Co., 31 I. C. 548, 558; McLean Lumber Co. v. C. 641, 644; and see N. P. R. Co. United States, 237 Fed. 460, 470. V. North Dakofa, 2.3.6 U. S. 585, 358 Charoes for Transportation of Persons, etc. [§ 101 existing rates with a reasonable margin of profit. Such a doctrine would lead ta the conclusion that the differential burdensi of production arising -from naturtd disadvantages, distance from market, and other economical difficulties of all com- munities and industries should be neutralized and absorbed by the carriers which serve them." § 101. Estoppel. — Where carriers, in the exercise of their right to det(^rmine the policy under which their rates are to be made, establish a rate for the purpose of developing a par- ticular industry, called by the carriers, "Missionary Rates," they are not estopped from advancing such rates when the resultant rates are not unreasonable, and the fact that such rates were so established is not alone sufficient evidence to justify a finding that the advanced rates are unreasonable and violative, of section one of the Interstate Commerce Act. In Western Oregon Lumber Manufacturers' Association v. Soiithern Pacific Co.,^" the Commission held that when the Southern Pacific Co. established a rate for the purpose of developing the lumber industry of a particular section, which rate it maintained with brief intervals for six years, an ad- vance thereon, when "on the strength of this rate that in- dustry had attained considerable proportions," was unrea- sonable. The question of the validity of this order having come before the Supreme Court, that court in speaking of the contention of the carriers said: "That is to say the con- tention is that the order entered by the Commission shows on its face that the body assumed not only that it had power to prevent the charging of unjust and unreasonable rates, but also to regulate and control the general policij (italics sup- plied) of the owners of railroads as to fixing rates, and con- sequently that there was authority to substitute for a just and reasonable rate one which in and of itself in a legal sense might be inijust and unreasonable, if the Commission was satisfied tliat it was a wise policy to do so, or because a rail- road had so conducted itself as to be estopped in the future 117. Western Oregon Lumber bound Rates on Hardwood, 32 I. Mfrs. Assn. v. Southern Pac. Co., C. C. 521, .524. 14 I. C. C. 61. See also North- § 1,01] Must be Just and Reasonable. 359 from being entitled to receive a just and reasonable compensa- tion for the service rendered." '^ While the attorneys representing the Commission before the Supreme Court disclaimed for the Commission any suck construction of the order, the order was construed by the court to mean what Avas contended in the foregoing quotation. In speaking of the power necessary to enter the order as it was construed, the court said: This "extraordinary power which the railroads thus say was exerted in rendering the order complained of, a power which if obtained, would open a vast field for the exercise of discretion, to the destruction of rights of private property in railroads and would in effect assert public ownership without any of the responsibilities whioli ownership would imply." The court having given the Commission's order a construc- tion as indicated by the contention made, held the order void. The Commerce Court, citing the Supreme Court case, supra, and in speaking of orders of the Commission, said: "Its orders must be based on transportation considerations, and while it may give weight to all factors bearing either on the cost or value of the transportation service, it must disregard as well the demand of the shipper for protection from legiti- mate competition, domestic or foreign, for unlimited markets, or for the enforcement of equitable estoppels arising from a justifiable expectation that past rates will be maintained.""" That because a carrier has maintained a low rate upon which business has been built up, the carrier may not advance its charges to a reasonable rate, is unquestionably true. This is true because all parties know that rates are subject to legis- lative control and estoppel cannot apply, and Congress has not as yet given the Commission power to initiate rates but has left the general policy of rate uiaking to the carriers, sub- ject only to the specific provisions of the statutes regulating interstate commerce. Nor does the decision of the Supreme 118. Southern Pac. Co. v. In- Co. v. Interstate Com. Com., 190 terstate Com. Com., 219 U. S. 433, Fed'. 591 (Lemon Case), Opinion 444, 55 L. Ed. 283, 31 Sup. Ct. Commerce Court No. 7, p. 83; 288. same case, 203 Fed. 56. Opinion 119. Atchison, T. & S. F. Ry. Commerce Court No. 61, p. 537. oGO Charges for Transportation of Persons, etc. [§ 102 Court necessarily mean that there is no evidentiary value in the proof that a rate was established to encourage an industry whose prosperity is dependent upon a continuation of the rate/"" There is nothing in the decision of the Supreme Court which prevents the Commission from giving considera- tion to the presumption arising from the fact that the carriers selling transportation have long fixed a particular value thereon. This presumption is discussed in the next section. It is also true that carriers "may not make contracts which abrogate the Act to Regulate Commerce," and such contracts cannot prevent the Commission from determining the rate involved therein and prescribing when necessary a different rate or practice.'"' § 102. Rates Long in Existence Are Presumed to Be Reason- able. — AVhen conditions have not materially changed, it is consistent Avith the motives which 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 another and higher rate. As early as 1889 the Com- mission, 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 unreason- ably low."'"^ The principle was again announced in the Food Products case'"" and in Proctor v. Cincinnati, H. & D. R. Co.^^^ i\Ir. Commissioner Prouty, in Holmes v. Southern Ry.. 120. Louisville & N. R. Co. v. Co. v. B. & M. R. R., 39 I. C. C. Finn, 235 U. S. 601, 59 L. Ed. 379, 118, 122; Stonega Coke & Coal 35 Sup. Ct. 146; Duluth, Minne- Co. v. L. & N. R. Co., 39 I. C. C. sota Log Rates, 29 I. C. C. 420, 52.?., 549; Cape Girardeau Com- 421. mercial Club v. 111. C. R. Co., 121. Ottumwa Bridge Co. v. 51 I. C. C. 105. Chicago, M. & St. P. Ry. Co., 14 I. 122. Logan et al., Com. of C. C. 121. See also Commercial Northwestern Grain Assn. v. Chi- Coal Co. V. Baltimore & O. R. cago & N. W. R. Co., 2 I. C. C. 604, Co., 15 I. C. C. 11; Menefee Lum- 2 I. C. R. 431, 434. ber Co. v. Texas & P. Ry. Co.. 123. Re Alleged Excessive 15 I. C. C. 49; Penn Tobacco Co. Freight Rates on Food Products, 4 V. Old Dominion Steamship Co., I. C. C. 48, 3 I. C. R. 93. IS I. C. C. 197; Baltimore Butch- 124. Proctor v. Cincinnati, H. & ers Abattoir & Live Stock Co. v. D. R. Co., 4 I. C. C. 87, 3 I. C. Philadelphia, B. & W. R. Co., 20 R. 131. I. C. C. 124, 128. Daffney Brick § 1.02] Must be Just and Reasonable. 361 Co./"'^ announced the rule in this language: "The continu- ance of a given rate is not conclusive evidence of the reason- ableness of that rate, but when a railway company advances a rate which has been for some time in force, the fact of its continuance is in the nature of an admission against that com- pany, which tends to show the unreasonableness of the ad- vance ; 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 Commission said: "When carriers advance a rate which has been for some time in force, the burden of proof is upon them to show sufficient grounds for such advance." In the Tift case'"" this language was used: "The maintenance of materi- ally 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 increas- ing, the advance will be held unjust unless it is satisfactorily explained.' " Each of these cases was tried in the circirit court and reached the Supreme Court where both were af- firined.'"" Li the Yellow Pine case the Supreme Court said : "The question submitted to the commission * * * was one Avhich turned on matters of fact. In that ciuestion. of course, there were elements of law, but we cannot see that any one of these or any circumstances probative of the con- clusion was overlooked or disregarded." It was stated by 125. Holmes v. Southern Ry. 127. Central l;ellow Pine Asso. Co., 8 I. C. C. 561, 568. v. 111. Cent. R. Co., 10 I. C. C. 126. Proctor v. Cincinnati, H. 505. & D. R. Co., 9 I. C. C. 440. For 128. Tift v. So. Ry. Co., 10 I. further history of this case, see C. C. 548. Interstate Com. Com. v. Cincin- 129. Tift v. So. Ry. Co., 138 Fed. nati, H. & D. R. Co., 146 Fed. 753; So. Ry. Co. v. Tift, 148 Fed. 559; Cinncinnati, H. & D. R. Co. 1021, 206 U. S. 428, 51 L. Ed. 1124. V. Interstate Com. Com., 206 U. 27 Sup. Ct. 709; 111. Cent. R. Co. S. 142, 51 L. Ed. 995, 27 Sup. Ct. v. Int. Com. Com., 206 U. S. 441, 648, enforcing order of the Com- 51 L. Ed. 1128, 27 Sup. Ct. 700. mission. 362 CpiARCiEs FOE Transportation of Persons, etc. [§ 103 tlic Siiprnnc Coin-t that the Tift ease, supra, depended "upon llip same legal considerations," as the Yellow Pine case. The ease of INIemphis Cotton Oil Co. v. Illinois Cent. R. Co., 17 T. C. C. 313, while not repudiating the doctrine above, states it less clearly than some of the prior decisions of the Commission. It is a fundamental law that acts of an in- divdual are presumptively not contrary to his interests, and as said by Judge Wallace, in Menacho v. Ward, 27 Fed. 529, 532, 23 Blatch. 502: "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." Mr. Justice Brandeis"" stated the proposition clearly as follows: "Low rates voluntarily established by the carrier, may be accepted by the Commission as evidence that other rates, actually or proposed, for comparable service, are un- reasonably high. Board of Trade v. Central of Ga. R. R. Co. 28 Inters. Com. Rep. 1.54, 164; Sheridan Chamber of Com- merce V. Chicago B. & Q. R. Co., 26 Inters. Com. Rep. 638. 647. Compare Louisville & N. R. Co. v. United States, 238 U. S. 1, 11, ft seq. 59 L. Ed. 1177, 1180, .35 Sup. Ct. Rep. 696. The voluntarily making of unremuneratively low rates in important tratific may also tend to induce the Commission to resist appeals of carriers for general rate increases on the ground of financial necessities." § 103 Same Subject. — The Supreme Court, in the case of Int. Com. Com. v. Chicago G. W. Ry. Co.,"''^ without referring to the Tift or Yellow Pine case, said: "It must also be re- membered 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 130. Skinner & Eddy Corp. v. Chicago G. W. Ry. Co., 209 U. S. United States, — U. S. — 63 L. 108, 119, .52 L. Ed. 705, 712, 713, Ed. — , 39 Sup. Ct. — . 28 Sup Ct. 493, affirming same 131. Interstate Com. Com. v. styled case, 141 Fed. 1003. § 1.03] Must be Just and Reasonable. 363 Avith it no presumption that it was not rightfully done." These decisions of tlie Supreme Court are harmonious. The fact that a "good reason" must be given ])y the carrier is equivalent to saying that, "tlie advance will be held unjust unless it is 'satisfactorily explained,' that is, unless a 'good reason' therefor is given." Mr. Commissioner Clements'"' discusses these cases, and, after quoting from the decision of the Su- preme Court in the Great AVestern case, says, "This is a mere affirmance of what the Act to Regulate Commerce itself recog- nizes 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 presumably afforded a reasonable return to the carrier, may not be ma- terially advanced without imposing upon the carriers the burden of justifying the increase." The prineiide that the long maintenance of rates is evidence that such rates are reasonably high, was applied by the Su- preme Court in a case where rates were fixed by the Railroad Commission of the state of Kentucky. ]\Ir. Justice Pitney, delivering the opinion of the Court, said:"'* "Since it ap- peared that the company, long prior to March 25, 1910. had voluntarily established the comparatively low rates upon a substantial part of their traffic, had maintained them for many years after the reason assigned for originally introduc- ing them had ceased to exist, and then withdrawn them, not upon the ground that they were inadequate, but because they gave rise to discrimination, and in so doing had introduced 132. Pacific Coast Lumber 13a. Louisville & N. R. Co. v. Mnfrs. Asso. v. N. Pac. Ry. Co., 14 Finn, 235 U. S. 601. 59 L. Ed. I. C. C. 23, 38. See also Re Class 379, 35 Sup. Ct. 146, 147; Int. and Commodity Rates from St. Com. Com. v. Louisville & N. R. Louis to Texas Common Points, Co., 227 U. S. 88, 99, 57 L. Ed. 11 L C. C. 238. 431, 436, 33 Suo. Ct. 185. 3G4 Charges FOB Tkansportation OF Persons, etc. [§ 104 rates vei\y much greater, it seems to lis that the conduct of the carrier, in the absence of some explanation more conclusive than any that Avas made, was sufficient basis for a reasonable inference that the special rates in force prior to March 25 upon the distillery supplies were reasonable and adequate com- pensation for that and other similar traffic, and that the rates thereafter charged were unreasonably high to the extent of being extortionate." § 104. Voluntary Reduction of Rates. — AVhere a carrier voluntarily reduces its rates, that fact under the principle applicable to presumptions would be evidence that from and after the date of the reduction the resultant rate was reason- ably high. Such a presumption, however, should not be in- dulged to the extent of holding that the act of the carrier is proof sufficient that the rate in force prior to the reduction was unreasonably high. To hold such a presumption to be conclusive would mahe it dangerous for carriers ever volun- tarily to reduce rates. On this subject the Commission has said: "The subsequently estalilished lower rate is now a just and reasonable rate over the defendant lines ; but the Commission is nuAvilling to subscribe to the theory that the voluntary reduction of a rate by a carrier conclusively shows that the former rate was unreasonable and that reparation should be granted on all shipments moving thereunder within the period of the statute of limitations.""' § 105. Same Subject— Act June 18, 1910.— By Act of June 18, 1910,''' it was provided: ''AVhenever there shall be tiled with the Commission any schedule stating a new individual or joint rate, fare or charge, or any new individual or joint classi- fication, or any new individual or joint regulation or practice afTecting any rate, fare or charge," the Commission may, as provided in the amendment ''enter upon a hearing concerning 134. Ottumwa Bridge Co. v. C, bacco Co. v. Old Dominion Steam- M. & St. P. R. Co., 14 I. C. C. ship Co., 18 I. C. C. 197; Balti- 121, 125; Commercial Coal Co. v. more Butchers Abattoir v. P. B. B. & O. R. Co., 15 I. C. C. 11; & W. R. Co., 20 I. C. C. 124. Menefee Lumber Co. v. T. & P. 135. Post. Sees. 898, and 399. Ry. Co., 15 I. C. C. 11; Penu To- § 105] AfuST HK .Il'ST A NT) REASONABLE. 365 the propriety of such rate, fare, charge, classification, regula- tion or practice," and "after full hearing. * * * the Commission may make such order in reference to such rate, fare, charge, classification, regulation, or practice" as it might make in an ordinary proceeding complaining of an existing rate. It is further provided that, "At any hearing involving a rate increased after January 1, 1910, or of a rate sought to be increased after the passage of this Act. the burden of proof to show tliat tlie increased rate or proposed increased rate is just and reasonable shall be upon the common carrier." The Transportation Act 1920 substitutes "lawfulness" for "propriety" in the quotation above from the Act of 1910; and after the word rate italicized above adds "fare or charge or pro- posed increased rate, fare or charge." This Act changes the language, but adds nothing to the meaning of the former Act as enforced by the Commission.^'"' "Rate, fare or charge" are used although the clear meaning of the whole section is that when any change is made in any classification, regulation or practice affecting and increasing a rate, the burden of justify- ing the change is upon the carrier. A change that did not in- crease the rate would not, as to the burden of proof, be affected by the amendment. This statutory rule as to burden of proof does not lessen the force of the rules of evidence stated in the preceding two sections. The Commission, in speaking of a rate in force for a quarter of a century and which had been materially ad- vanced in the last seven years, held that the reason justifying a further advance "must be even more cogent," and that the his- tory of the rates, "was evidence which bears strongly upon the propriety of the * * * increase.""' In a still more re- cent case the rule was stated with its j^roper limitations as fol- lows : "Undoubtedly a presumption of reasonableness arises from the long existence of a rate; but if this presumption were conclusive, necessary and proper changes in rates W'Ould be prohil)ited."^^* 136. Section 399, post. 138. Robinson Land & Lumber 137. United States Leather Co. Co. v. Mobile & O. R. Co., 26 I. V. Southern Ry. Co., 21 I. C. C. C. C. 427, 429. For Illustrative 323, 327. application of the principle see. :>(-G Charoes for Transportation of Persons, etc. [§ lOG The Coiimieree Court,"' citing the Great Western case,''" gave that case a somewhat wider meaning than was meant by the opinion therein. Tn reversing the Commerce Court, the Su- preme Court cited the Great Western case, but said: "Under the circumstances the maintenance of these low rates, after the water competition disappeared, tends to support the theory that ))y an increase of business or other cause they had become reasonable and compensatory." So. the presumption may or may not arise and all the facts must be considered. The syllabus of the opinion is as follows: "The value of evidence in rate proceedings varies, and the weight to be given to it is peculiarly for the body experienced in regard to rates and familiar with the indicias of rate-making." "When rail rates are advanced with the disappearance of water competition, no inference adverse to the railroads can be drawn, but when the old rates had been maintained for several 3'ears after such disappearance there is a presumption if the rates are raised that the advance is made for other pur- poses." "' The italics do not appear in the syllabus. The railroad situation is radically different since Federal control, the 1920 Amendment proposes at least two new and untried experiments, the elimination of comjietition and a partial guaranty of fair returns; and issues hereafter pre- sented must be "determined, at least to a great extent, in the light of present conditions." "" § 106. Groriping Territory and Giving- Each Group Same Rate Legal under Some Circumstances. — It has been and is yet a practice with carriers to group contiguous territory and Ocheltree Grain Co. v. St. Louis a preliminary application for in- & S. F. R. Co., 13 I. C. C. 46; junction. Millar v. New ^ork C. & H. R. 140. Int. Com. Com. v. Chicago R. Co. 19 I. C. C. 78; Audley, G. W. Ry. Co., 209 U. S. 108, 119, Hill & Co. V. Southern Ry. Co., 52 L. Ed. 705, 712, 713, 28 Sup. 20 I. C. C. 225; Commercial Club Ct. 493. of Omaha v. Southern Pac. Co., 141. Int. Com. Com. v. Louis- 20 I. C. C. 631. vine & N. R. Co., 227 U. S. 88, 57 139. Louisville & N. R. Co. v. L. Ed. 431, 33 Sup. Ct. 185. See Interstate Com. Com., 195 Fed. also note 120 this chapter. 541, 557, Opinion Commerce Court 142. Green v. A. & V. Ry. Co., No.' 4, pp. 325, 375, and see same 43 I. C. C. 662, 074. styled case, 184 Fed. 118, denying § 106] Must be Just and Reasonable.. 367 give the same rate to all points within a particular group. This practice is called "blanketing." The Commission in 1888, speaking of this practice, said :''"' "This is a practice which prevails very largely in the mak- ing of rates and results in giving to some towns 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 railroad advantages as between towns without wronging any one. The system is not necessarily illegal, it only becomes illegal when it can be shown that illegal results flow from it." The practice is not approved by the Commission, how^ever, when "the difference in the transportation expense from the various parts of such district is considerabile and substan- tial."'^* 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.'" But in referring to the holding in the P^armers, Merchants & Shippers Club case, supra, the Commission said: "In so hold- ing we said that the reasonableness of these rates must be de- tei'mined not by considering the rate from the point of origin to a particular station in the group, but rather as applicable to the entire group. It is evident that ever}^ system of group rates must occasion more or less discrimination. The rate to the nearer edge of the group as compared with that to the more distant edge is of necessity discriminatory .^"' 143. LaCrosse Manufacturers' & 6 I. C. C. ISl, 4 I. C. R. 474, 480; Jobbers' Union v. Chicago, M. & Merchants' Union of Spokane St. P. R. Co., 1 I. C. C. 629, 631, Falls v. N. Pac. R. Co., 5 I. C. C. 2 I. C. R. 9, 10. See also Busi- 478, 4 I. C. R. 1?3; Rea v. Mobile ness Men's Asso. of Minnesota v. & O. R. Co., 7 I. C. C. 43. Chicago, St. P., M. & O. Ry. Co., 145. Farmers, Merchants & Ship- 2 I. C. C. 12, 52, 2 I. C. R. 41, pers Club v. Atchison, T. & S. 46; Lippman & Co. v. 111. Cent. F. Ry. Co., 12 I. C. C. 351, 365. R. Co., 2 I. C. C. 584, 2 I. C. R. Although when such grouping re- 414; Howell v. New York, L. E. suits in unjust discrimination it & W. R. Co., 2 I. C. C. 272, 2 will be changed. Kaufman Com- I. C. R. 162; Imperial Coal ■ Co. mercial Club v. T. & N. 0. R. Co., V. Pittsburg & L. E. R. Co., 2 I. 31 I. C. C. 161. C. C. 618, 2 I. C. R. 436. 146. Mitchell v Atchison, T. & 144. Newland \. N. Pac. R. Co., S. F. Ry. Co., 1^ I. C. C. 324. 325. 308 Charges foe Transportation of Persons, etc. [§ 107 Tn concluding tlie opinion of the Commission, Mr. Commis- sioner Prouty said: "It is impossil)le to pass abi-uptly from the group system." There are many cases in the reports of the Commission rec- ognizing the group system of rates, some of which will be dis- cussed in the chapter on Equality in Rates. In this section the reasonableness of rates is under discussion and the group sys- tem is opposed to the distance basis. Considering distance and the group system, the Commission said: "Distance is, of course a factor to be considered in deter- miniiig the reasonableness of rates, and when rates are construct- ed upon this basis, and other things are equal it may become a very important factor. When, however, as in this ease, rates are constructed and maintained upon the group system and the sul)ject matter is a heavy commodity like coal, and the differ- ences in distance are relatively inconsiderable, such differ- ences do not of themselves compel differences in rates." ^" As a general rule in establishing the boundary lines of groups, some measure or principle, such as radial or operat- ing is possible, it should be tolerated. In giving such reasons, tures of the country, and the location of trausportation lines should be followed."* § 107. Grouping- Producing Points, and Making Zones Tak- ing Same Rates.- — The principles discussed in the foregoing section have been applied by the Commission to cases where a inore or less contiguoiLS territory is given the same rate to the markets. In speaking of such system already in existence the Commission said : "When the Ignited States Government transports a package 10 miles for one citizen for 10 cents, while it charges his neigh- bor the same amount for transportng a like parcel 3,000 miles. a clear discrimination is made, but it is a discrimination of that character which by universal consent is in the public interest. For a discussion and history of 147. Victor Manufacturing Co. the Teaxs common point terri- v. Southern Ry. Co., 27 I. C. O. tory and a comparison with the 661, CG3. transcontinental group, see Texas 148. Humphrey Brick & Tile Co. Common Point Case, 26 I. C. C. v. P. R. R. Co., 50 I. G. C. 457, 528, 529. 462. <^ 1.07] Must be Just and Reasonable. 3G9 So, here, it is by no means certain that these postage-stamp rates as applied to the distribution of the rjroduets of the Paci- fic coast states are not upon the whole for the general public good. Under this system the producers upon the Pacific coast are given the widest possible market for their products; the carriers obtain a certain amount of long-distance business at remunerative rates, Avhich they would not otherwise have ; the freight rale does not so far enter into the cost of these articles to the consumer that any noticeable burden is imposed upon any section of the country. If this Commission were required to estal)lish a reasonable schedule of rates for the transporta- tion of citrous fruits from southern California to eastern desti- nations, we should not feel at liberty to put in this blanket; but to establish graded rates at this time upon lemons would be to break up this rate system which is highl.v satisfactory to all parties concerned, and while the action of the court may in the end compel us to do this, we feel that we can for the present, properly leave this situation as it is." "* The rates resulting from this system of rate-making must, of course, be reasonable and not unjustly or unduly discrimina- tory.'^" The system has its irregularities at best, but there are reasons why, at least until a more scientific basis of rate-mak- ing is possible, it should be tolerated. In giving such reasons, the Commission has said : "In transportation of low-grade commodities that move in bulk and in large quantities it is a long established custom to group or blanket a numUer of stations or a large expanse of territory. Such rate adjustments necessarily to some extent disregard distances. If strictly distance rates were applied to grain moving from points of origin it is apparent that at a cer- tain distance from a market that is prepared to purchase the surplus the rate would be prohibitive." '^' 149. Arlingto-i Heights Fruit 197; Clyde Coal Co. v. Pennsyl- Exchange v. Southern Pac. Co., 22 vania R. Co., 23 I. C. C. 135. I. C. C. 149, 156; order sustained 151. Kansas City Transp. Bu- by Commerce Court, Atchison, T. reau v. Atchison, T. & S. F. Ry. & S. F. Ry. Co. V. United States, Co., 16 I. C. C. 195, 204. For typi- 203 Fed. 56. Opinion Commerce cal grouping, see Ferguson Saw Court No. 61, p. r-37. Mill Co. v. St. Louis, I. M. & S. Ry. 150. Sun Company v. Indianapo- Co., 18 I. C. C. 396, 398; Re lis Sou. R. Co., 22 I. C. C. 194, Transportation of Wool, Hides 370 Charges FOR Transportation OF Persons, etc. [§ 108 Tn prescribing rates, the Commission has adopted a system of zones ''as an appropriate solntion" of a particular rat6 situation.'"" Tlie courts recognize that the Commission has the jurisdiction to determine the effect of the custom of the car- riers in making groups and zones/"' It is interesting to note that in prescribing parcel post rates, the postage stamp system was abandoned to an extent and zone rates applied. § 108. Basing Point System. — What this system is and the attitude of the Commission thereon cannot be better stated than by using the language of the Commission itself. Ln. Bioard of Trade of Hampton v. Nashville, Chattanooga & St. L. R. Co,.'" it was said by Mr. Commissioner Clements : ''As stated in our finding 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 dis- cussed and disapproved by the Commission. Re Louisville & N. R. Co., 1 T. C. C. Rep. 84, 85, 1 Inters. Com. Rep. 287 ; Martin V. Chicago. 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 biasing 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 bas- ing point plus the local rate back over the same line. In the former and Pelts, 23 I. C. C. 151, 164 154. Board of Trade of Hamp- (coal) ; Transportation Bureau of ton v. Nashville, C. & St. L. R, Wichita v. St. Louis, I. M. & S. Co., 8 I. C. C. 503, 520, 521, 522. Ry. Co., 23 I. C. C. 679, 680. See also Board of Trade of Daw- 152. Pacific Creamery Co. v. son v. Central of Ga. Ry. Co., 8 I. Atchison, T. & S. F. Ry. Co., 29 C. C. 142. Competition at one I. C. C. 405, 408, and cases cited. place may justify a different rate 153. Int. Com. Com. v. Chicago, to another, Roberts Cotton Oil Co. R. I. & P. Ry. Co., 218 U. S. 88, v. Illinois C. R. Co., 21 I. C. C. 54 L. Ed. 946, 30 Sup. Ct. 651. 248. § 1.08] Must be Just and Reasonable. 371 ease, the haul is not treated as a eontinuous haul through the basing point to the point beyond, but as tAvo 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 ease, not as a through haul to the interaiediate 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 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 R. 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 basin g-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 competition with the former, and as to territory intermediate between 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 lo- calities, and drive them out of the "jobbing business" in sucli intermediate territory as the testimony shows has been the re- sult in the present case. The direct tendency and almost in- variable 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 undoubtedly one of the principal evils which the Act to Re- gulate Commerce was designed to remedy, and it would seem that due allowance might and should be made for the effect of competition without defeating the object of the law." The system of making the rate to the point beyond the full local from the basing point was abandoned by the carriers and a system of differentials or arbitraries over the basing point established. Even this, when resulting in discrimination, is illegal aaid the principle was announced by the Commission that "rates to the basing points should bear some reasonable 372 Charges for Transportation of Persons, etc. [§ 109 relation to the total distances involved." '"' In adjusting rates under the amended fourth section of the Act, the basing point system was practically destroyed by the Commission."' § 109. Same Subject — Breaking Rates. — It has been the system adopted by the carriers in different sections of the country to make rates to a river crossing and thence to the point of destination, the through rate being a combination of the two. In some places this system, called the rate breaking system, is applied at inland points although "such an adjust- ment is unusual, l.ecause it is at points and on the banks of rivers, where a transfer is necessary, that rates ordinarily break." And "to have rates break at a particular point is not an inherent right." '''' While the system of breaking rates at l)articu]ar points may not be the best, the Commission cannot at once overcome such a system but can, when necessary to prevent discrimination, control this method of rate-making. Speaking of the system in a case where the complainants in- sisted, "that the system of basing rates to the Missouri River cities and points beyond upon the Mississippi River crossings is improper," Mr. Commissioner Clark, for the Commission, said: "We are not impressed with the view that the system of making rates on certain basing lines should be abolished. No system of rate-making has been suggested as a substitute for it, except one based upon the postage stamp theory, or one based strictly upon mileage. Either of these v/ould create re- volution in transportation affairs and chaos in commercial 1.55. Board of Trade of Carroll- v. Atlanta & W. P. R. Co., 28 ton V. Central of Ga. Ry. Co., 28 I. C. C. 178; Mayor and Coun- I. C. C. 154. See also Mayor and cil of Tifton, Ga. v. Louisville & Council of Boston, Ga. v. Atlan- N. R. Co., 9 I. C. C. 160; Co- tic C. L. R. Co., 24 I. C. C. 50; lumbia Grocery Co. v. Louisville City of Montezuma v. Central of & N. R. Co., 18 I. C. C. 502. Ga. Ry. Co., 28 I. C. C. 280; 156. Fourth Section Violations Town of Pelham, Ga. v. Atlantic in the Southeast, 30 L C. C. 153. C. L. R. Co., 28 I. C. C. 433; 157. Mr. Commissioner Harlan, Mayor and Council of Douglas, in Commercial Club of Duluth v. Ga. V. Atlantic, B. & A. R. Co.. Baltimore & O. R. Co., 27 I. C. 28 I. C. C. 445; Mayor and Coun- C. 639, 650, 657. See also Sioux cil of Vienna, Ga. v. Georgia, S. City Tierminhl Elevlator Co. v. & F. Ry. Co., 28 I. C. C. 173; Chicago, M. & St. P. Ry. Co., 27 LaGrange Chamber of Commerce I. C. C. 457, 463. § 1,09] Must be Just and Reasonable. 373 affairs, that have been builded upon the system of rate-making now in effect. It must not, however, be assumed that a basing line for rates may bis established and be made an impassable barrier for through rates, or that cities or markets located -at or upon such basing line have any inviolable possession of or hold upon, the right to distribute traffic in or from the terri- tory lying beyond. Development of natural resources, increase in population, growth of manufacturing and producing fa- cilities, and increased traffic on railroads create changed condi- tions which may warrant changes in rates and in rate adjust- nients in order to afford just and reasonable opportunity for interchange of traffic between points of production and points of large consumption." ^""^ The order of the Commission in the case in which the above announcement was made coming be- fore the Supreme Court, this declaration was quoted by the court and, repljniig to the contention that the Commission had adopted illegal junnciples in arriving at its conclusions effec- tive in the order, the court said: "As we have said, the Com- misson is the tribunal that is intrusted with the execution of the interstate commerce law, and has been given very compre- hensive powers in the investigation and determination of the proportion which rates charged shall bear to the services ren- dered, and this power exists, whether the system of rates be old or new. If old, interests will have probably become at- tached to them and, it may be, will be disturbed or disordered if they be changed. Such circumstance is. of course, proper to be considered and constitutes an element in the problem of regulation, but it does not take jurisdiction away to entertain and attempt to resolve the problem. And it may be that there cannot be an accommodation of all interests in one proceed- ing." ''"' The opinion of the Court refers to the force "due to tha judgments of a tribunal appointed by law and informed by ex- perience. 158. Burnham, Hanna, Hunger court in Chicago, R. I. & P. Ry. Dry Goods Co. v. Chicago, R. I. Co. v. Int. Com. Com., 171 Fed. & P. Ry. Co., 14 I. C. C. 299, 303, 680, and sustaining the Commis- 312, 313. eion in Burnham, Hanna, Munger 159. Int. Com. Com. v. Chicago, Dry Goods Co. v. Chicago, R. I. R. I. & P. Ry. Co., 218 U. S. 88, & P. Ry. Co., 14 I. C. C. 299. 107, 108, 110, 54 L. Ed. 946, 30 160. Illinois C. R. Co. v. Int. Sup. Ct. 651, reversing the lower Com. Com., 206 U. S. 441, 454, 51 374 Charges for Transportation of Persons, etc. [^ 110 Breaking rates at rivers grew out of the fact that many- roads ran only to the river and other roads took the commodity tlience, there being no physical connection between the roads. Another reason was that in some instances one of the hauls was by water and the water carrier had no physical connection with the rail carrier which performed the other part of the through haul. The can-iers as a matter of preference or to en- able one cit}^ to enjoy advantages similar to a more favorably located city, extended the principle.'" There is now no justi- fication for refusing through rates merely because the haul crosses the jMississippi, Ohio or some other river. The principle of charging as a through rate the aggregate of tvro local rates is illogical and conflicts with the evident legislative purpose to make all the roads one aggregate system. § no. Comparisons between Different Lines as a Means of Determining Correct Rates. — It is competent to compare rates, distances 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 which enter into the question of what constitutes a reasonable rate must be considered."^ Rates should be relatively as well as absolutely reasonable, and a locality not widely dissimilar from another is pnma facie en- titled to the same rate.""' AYhen the cricumstances and condi- tions are substantially dissimilar, comparison of rates are valueless.''" Comparisons of "transportation rates in force on lines of rival companies or on dififerent branches or lines of the same company have a bearing upon and are entitled to con- L.Ed. 1128, 27 Sup. Ct. 700, citing Co., 5 I. C. C. 156, .3 I. C. R. Louisville & N. R. Co. v. Behl- 794; Re Tariffs of Transconti- mer, 175 U. S. 648, 44 L. Ed. nental Lines, 2 I. C. C. 324, 2 I. 309, 18 Sup. Ct. 502; East Ten- C. R. 203. nessee, Va. & Ga. Ry. Co. v. Int. 163. Manufacturers' and Job- Com. Com., 181 U. S. 1, 27, 45 bers' Union v. Minneapolis & St. L. Ed. 719, 21 Sup. Ct. 516. L. R. Co., 4 I. C. C. 79, .3. I. C. R. 161. Nashville Lumbermens 115. Club V. L. & N. R. Co., 40 I. C. C. 164. Business Men's Asso. v. Clii- 59, 60, 61; Live Stock from Nash- cago & N. W. R. Co., 2 I. C. C. ville, 48 I. C. C. 277, 281. 73, 2 L C. R. 48; Evans v. Union 162. Cannon v. Mobile & O. R. Pac. R. Co., 6 I. C. C. 520; Mar- Co., 11 I. C. C. 527, 543; Lincoln ten v. Louisville & N. R. Co., 9 Creamery Co. v. Union Pac. R. I. C C. 581, 597, 12 I. C. C. 223 § 1.10] Must be Just and Reasonable. 375 sideration in connection with the question of reasonable charges for transj^ortation services rendered under like condi- tions."'"'' And as said by Mr. Commissioner Harlan:'"" "But while the revenue per ton per mile over other routes on other lines and to other destinations is often suggestive in arriv- ing at a proper estimate of the reasonableness of a rate over a route complained of, it is by no means conclusive. Varying condi- tions existing on ditferent lines must of. necessity justify dif- ferences in rates for hauls of the same distance. The real ques- tion in any such complaint is the reasonableness of the partic- ular rate on the particular line between the points in question. In testing such a rate the rates on the same or adjacent lines in the immediate territory Avhere the same conditions exist are of much greater significance and afford a much more accurate 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. Nor does the mere fact that a lower rate is in force by a com- peting line "of itself establish the unreasonableness" of the rate by the line under investigation.^"' As stated by the Commission: "There is no evidence that the rate charged was unreasonable, except that there was a lower rate to a nearby point via another line. This of itself has never been held sufficient to establish that the rate over a particular line is unreasonable." '"** While this is true, there is some pro- bative value in evidence showing that between the same points there is another line over which a lower rate exists, and this evidence when supported by the fact that the rate complained 165. Morrell v. Union Pacific R. & Co. v. Buffalo & S. Ry. Co., 18 Co., 6 I. C. C. 121, 4 I. C. R. 469. I. C. C. 380. See discussion of question in 167. Delray Salt Co. v. Michigan Freight Bureau of Cincinnati v. Cent. R. Co., 18 T. C. C. 24.5. Cincinnati N. 0. & T. P. Ry. Co., 168. Snyder-Maldne-Donahue Co. 6 I. C. C. 195, 4 I. C. R. 592, 610, v. Chicago, B. & Q. R. Co., 18 I. 611. C. C. 498, 499. Also see Pankey 166. Dallas Freight Bureau v. & Holmes v. Central New Eng- Gulf C. & S. F. Ry. Co., 12 I. C. land Ry. Co., 18 T. C. C. 578. C. 233, cited and followed, Clark 376 Charges foe Transportation of Persons^ etc. [§ 111 of yields a comparatively high rate per ton mile may justify a finding that such rate is unreasonable/'" Comparing one rate M'ith another is but a method of arriving at the fair value of a particular service. The underlying prin- ciple applied in making such comparisons is the same as is used Avhen the market value of property is sought to be determined by comparisons with the value of other property similarly sit- uated, and which value is indicated by prices that have been paid therefor in the open market. The method of judging rates by comparison is one that has been applied since tribunals have considered the question of what are reasonable charges."" § in. 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 cpiestion of what con- stitutes a reasonable rate. "The hazard involved," ''^ must al- so be considered in determining that question. It is indisput- able 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 quantities. 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 b}" the consignor and unsealed by the consignee, and in the ab- sence of the seals, showing that it has been tampered with, or that the car is in any way defective, there can be no such thing as a concealed loss chargeable to the carrier. The clerical ex- pense of l)illing and the expense of delivering is much less in car load than in less than carload shipments, and the loss and damage on less than car load shipments is greater than on car load movements. The principle is recognized by the Commis- sion. In the Thurber case''" the Commission said; "It is a 169. Parfrey v. Chicago, M. & 171. Kindel v. Adams Express St. P. Ry. Co., 20 I. C. C. 104. Co., 13 I. C. C. 475, 485. 170. Bacon's Abridgment, p. 172. Thurber v. New York C. & 243, title Carriers. 1 Com. Dig. C. H. R. R. Co., 3 I. C. C. 473, 2 citing 1 Sid. 36; Hutchinson on I. C. R. 742, 752. See also Har- Carriers (2d Ed.) Sec. 447, 4 El- vard v. Pennsylvania Co., 4 I. C. licit on Railroads Sees. 1560 et C. 212, 3 I C. R. 257; Schultz- seq. Hansen Co. v. Southern Pac. Co., § 1,12] Must be Just and Reasonable. 377 sound rule for carriers to adapt their classificatioiis 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 prob- ably the only practicable unit of quantity." While, as stated by the Commission in the Thurber case. nupra, shippers usually load and unload car load freight, such is not the universal custom. Speaking of the practice, the Commission has said: "While there is every reason for hold- ing that the sliipper should load and unload freight handled as a strictly car load proposition, there seem to be many reasons why with respect to commodities handled by the package, the carrier should load and unload even though the rate applied may be the car load; and such we think has been the usual practice in the past. Our conclusion, therefore, is that no gen- eral and invariable rule can be laid down applying to all busi- ness which takes a car load rate." "^ § 112. Establishing Car Load Rates. — While the principle of a difference betw.een carload and less than carload ship- ments is recognized by the C(unmission, and while to prevent discrimination, it could prescribe such a diflferential, that trib- unal is disinclined to exercise such power. Mr. Commis- sioner Clements, voicing the opinion of the Commission, said :^'* "The commission has held that differentiation by the car- riers of carloads from less than car loads in the ajiplication of rates may be warranted under certain conditions. Here, how- ever, we are asked to enter an affirmative order establishing a differential. AA^hat would be the etfect upon all the business interests involved in this traffic should the commission take such action? No doubt its etfect upon the jobbers at south- eastern points would be beneficial ; traffic would move into the southeast in such manner as to give the longest possible haul in car loads to the local dealers, who. securing these long haul car 18 I. C. C. 2.34, 237; when the 173. Wholesale Fruit & Produce carrier does unload or load it Assn. v. Atchison, T. & S. F. Ry. must be without discrimination, Co., 14 I. C. C. 410, 419. Empire Fuel Co. v. Pennsylvania 174. Duncan v. Nashville, C. & R. Co., 16 I. C. C. 219. 224. St. L. Ry. Co., 16 I. C. C. 590, 593, 594, 595. 378 Charges foe Transportation of Persons, etc. [^ 113 load I'ates, would be the IxMieficiaries. Other classes who would be aflfectod by the change would be the small dealers and con- sumers, 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 com- pel them to deal with jobbers in their immediate vicinity, who would purchase in large enough quantities to secure the bene- fits of the lower rates on the long car load haul from the Ohio River to 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 cannot 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 com- munity. AVe are not permitted so to narrow our view of all the interests involved as to look only to the interests of a particular class in the community, and this for the sole purpose of vest- ing in that class what they claim to be their inherent rights, more especially when the enjoyment thereof is to be at the ex- pense of the community at large." The Commission has, where any quantity rates were in force, distinguished the Duncan caiie,supra, and required that car load rates be established."^ § 113. Same Subject^ — Rule in Duncan Case Criticized. — With great deference to the learned lawyer and experienced commissioner who wrote the opinion in the Duncan case, it is submitted that he failed to give due effect to the rule of cost of service. It does not necessarily follow that a higher rate on less than car 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 175. Mutual Rice Trade & De 224. See also Taylor Dry Goods Tolopment Assn. v. International Co. v. M. P. Ry. Co., 28 I. C. L,. Se G. N. R. Co.. 23 I. C. C. 219, 205. § 1,13] Must be Just and Reasonable. 379 to pay all operating expenses and a fair return on the invest- ment. If fifty per cent of these commodities are transported in less that car load lots, it is fair to say that more than sixty per cent of the cost of all transportation is caused by this moiety and less than forty per cent by the half transported in car lots. Bnt while the car load shipper costs the carrier but forty per cent of the transportation charge, he pays fifty per cent thereof. If the car load shipper paid only the forty per cent the maximum which he should, pay and the less than car load shipper should pay his sixty per cent and more, the total transportation charges paid by the consumer would be the same that he pays when there is no ditferential and there would be no discrimination. The jobber is sometimes regarded as a mere parasite, but this view of his function is incorrect. He fills an important position in commerce. "Without him, or some other equally effective agency, the producer and the con- sumer could not be got together. The Kansas wheat farmer could never market his wheat directly by dealing with the Georgia consumer. There nuist be one or more intermediaries 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 necessary service in enabling the producer to sell and the consumer to buy. AVhen a producer controls all. or a large part, of a commodity, 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 transportation charges which the consumer pays are not in- creased, but decreased and these charges are equitablj^ dis- tributed. The justice of a car load and less than car load dif- ferential is shown by the general application by the carriers themselves of such diflferential. 380 Charges foh Transportation of Persons^ etc. [§ 114 Tu the Western Classification ease,''" the rule for determin- inf^j when a carload rating should be established was stated as follows: "A carload rating should be established for a com- modity Avhen that commodity can be offered for shipment in carload quantities, unless public interests or other valid consid- erations require the contrary." Tn a subsequent case this rule was quoted, the Duncan and other cases cited, and it was said: "The Commission has always recognized the propriety of carload ratings. It has in many cases established carload and less than carload rates upon the same commodity, but whether a carload rating should be accorded in a particular instance, depends not only upon whether that commodity is offered for shipment in carload quantities, but also upon other considerations."'"' What the Commission meant is, that when commercial usage makes a carload of a particular commodity a greater quantity than is ordinarily used by the average shipper, the advantages to be obtained by the low^er cost of movements in carloads must yield to the customs of trade. Somewhat more liberal was the rule applied in permitting the carriers to increase the minimum carload for grain products.^" The round bale cotton case''" was based upon a special situa- tion, and in declining to fix a carload rating which w^ould have a])plied only to cotton compressed to a stated density, it can not be said that the Commission has determined that in no oClsp will it require the establishment of carload ratings. § 114. Same Siibject^Proper Differential Between Rates on Carload and Less Than Carload Freight. — On this subject the Commission has stated the rule as follows: "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 prop- erly consider the cost of service, and that factor should have great influence with the commission in passing upon the 176. Re Suspension of Western 178. Western Rate Advance Case Classification No. 51, 25 I. C. C. 1915, 35 I. C. C. 497. 442, 446. 179. American Round Bale 177. Taylor Dry Goods Co. v. M. Press Co. v. A. T. & S. F. Ry. Co., P. Ry. Co., 28 I. C. C. 205, 207, 32 I. C. C. 458. 208, 209. § 1.15] Must be Just and Keasonable. 381 reasonableness of the carrier's action. If it actually costs these carriers less to handle this transcontinental freight in car- loads than in less than carloads we ought not in the absence of a controlling 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 some- what elaborately estimated the relative expense of carrying this freight in carloads and less than carloads. The nature of that testimony fully appears in the statement of facts, and need not be repeated. We have found that it costs trans- continental carriers approximately 50 per cent more to handle transcontinental traffic in less than car loads than in carloads. The less than carload rate in many of the instances called to our attention by the complainant exceeds 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."" The question discussed in sections 111 to 114 are here dis- cussed as they affect the reasonableness of rates. The issue of unlawful discrimination is discussed in seotion 156, post, where it will be seen that the Commission has changed its attitude from that adopted in the Duncan case, supra. § 115. Carload Minima. — It is usual for the carriers to pro- vide that a specified weight of a commodity shall be required to constitute a carload in order to obtain a rate different from tlie rate on the same commodity moving in less than carloads. This minimum must be reasonable and must not exceed the capacity of the car. AVhere no minimum was established the Commission said : "The absence of a legally established minimum car load weight suggests the inquiry as to the quantity upon which a shipper might claim the benefit of the car load rate in prefer- ence to the less-than-carload rate. And for the purpose of laying down a general rule we hold that when a car is de- manded and loaded by the shipper and is tendered and other- 180. Business Men's League of Ry. Co., 9 I. C. C. 318, 358, 359. St. Louis V. Atchison, T. & S. F. See Sec. 156, post. 382 Charges FOE Transportation OF Persons, etc. [§ 116 wise handled as a carload, and no minimum carload weight is legally [jrovidcd. the carload rate, if it makes less than the 1. c. 1. rate, must be applied on the actual weight. It lies in the poAver of a carrier to protect its revenue by fixing, in the manner provided by law, minimum weights to be ap- plicable under its published carload rates. If it fails to take this precaution we think it imposes no hardship upon it to give a shipper the benefit of the carload rate on the actual weight of the shipment tendered as a carload, whether it ba more or less than an ordinary carload quantity.""^ If the rate is for a carload, the greater the load the less the rate on each one hundred pounds, and the less the load the greater the rate a hundred. So "the minimum carload Aveight is a factor in determining the carload rate.'"*" § 116. Train Load Rates.^ — The carload is a reasonable and practicable unit of quantity that may properly be adopted in determining rates. Perhaps logically the train load might also be considered, but in the actual movement of commodities the train load rarely occurs, and to adopt as a unit of quantity the train load would benefit very few shippers and would dis- criminate against a large number. Practicable units must be observed. So it has been said that loAver rates by the hundred pounds for train loads than for carloads should not be established."* Applying the same principle, a rate on one hundred or one hundred thousand cars should not be less by the car than on one car.'*' 181. 1915 Western Advance Rate Advance Case 1915, 35 1. C. Rate Case 35 I. C. C. 497, Chicago C. 497. Wool Co. V. C. M. & St. P. Ry. Co., 184. Planters Compress Co. v. 40 I. C. C. 101; Southeastern Cot- Cleveland, C. C. & St. L. Ry. Co., ton Goods, 43 I. C. C. 530, 536; 11 I. C. C. 382; Paine Bros. Co. Consolidated Classification Case. v. Lehigh V. R. Co., 7 I. C. C. 54 I. C. C. 8. 218; Richards \. Atlantic Coast 182. Sunderland Bros. Co. v. Line R. Co.. 23 I. C. C. 23-9, 240. Missouri, K. & T. Ry. Co., 18 I. 185. Carr v. Northern Pacific R. C. C. 425, 426. Co., 9 I. C. C. 1, 14; Woodward 183. Georgia Fruit Exchange v. Bennett Co. v. S. P. L. A. & S. F. Southern Ry. Co., 20 I. C. C. 623, T. Co., 29 I. C. C. 664, 665, and 630; Kansas City Hay Dealers cases cited; wholesale theory dis- Assn. V. Missouri Pac. Ry. Co., approved. Diamond Lumber Co. v. 14 I. C. C. 597, 603; Western M. & St. P. Ry. Co., 43 I. C. C. § 1,17] Must be Just and Reasonable. 383 § 117. Relation of Throiig-h Rates to the Sum of the Local Rates. — 111 December, 1906, the Commission adopted and is- sued to all railroads the following ruling: ''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 sura 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 com- mission, be changed by reducing the same to the sum 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. ]\Iany informal complaints are received in connection with regularly established through rates which are in excess of the sura of the locals between the same points. The Coraraission has no authority to change or fix a rate except after full hearing upon forraal 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 sura of the locals be- tween 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.^"" 65, 66; private Wire Contracts, Wells-Higman Co. v. Grand Rapids 50 I. C. C. 731. & I. Ry. Co., 19 I. C. C. 487; Web- 186. Laning-Harris Coal & Grain ster Grocery Co. v. Chicago & N. Co. V. Missouri Pac. Ry. Co., 13 W. Ry. Co., 19 I. C. C. 493; and I. C. C. 148, 159; Burnham, Hanna, ordinarily the through rate should Munger Dry Goods Co. v. Chicago, be somewhat less than the com- R. I. & P. Ry. Co., 14 I. C. C. 299; bination of locals, Jubitz v. South- Kindel v. New York, N. H. & H. ern Pac. Co., 27 I. C. C. 44, 4o; R. R. Co., 15 I. C. C. 555; Randolph Washington Milling Co. v. Norfolk Lumber Co. v. Seaboard A. L. Ry. & W. Ry. Co., 27 I. C. C. 546, 549; Co., 13 I. C. C. 601; Milburn Appalachia Lumber Co. v. Louis- Wagon Co. V. Lake Shore & M. S. ville & N. R. Co., 25 I. C. C. 193, Ry. Co., 18 I. C. C. 144: Windsor 194; Commercial Club of Mitchell Turned Goods Co. v. Chesapeake S. Dak. v. A. & W. Ry. Co., 46 & O. Ry. Co., 18 I. C. C. 162; I. C. C. 1, 7: Herrick Refrigerator 384 Charges for Transportation of Persons, etc. [§ 118 There have been and may be reasons which make the rule in- applicable.'" Carriers may not avoid the application of the general prin- ciple by making different minima on local and through ship- ments/^^ The amended fourth section making it unlawful "to charge any greater compensation on a through rate than the aggregate of the intermediate rates subject to the provisions" of the Act to Regulate Commerce, makes statutory the prior rule frequently applied by the Commission. ' ' Penalty Rates, ' ' that is, inbound rates part of a through haul higher if the outbound movement is over a line different from the one enjoying the inbound haul, are unlawful.'"* § lis Proportional Rates. — A proportional rate is but a part of a rate charged for the haul over a portion of the through route In recognition of the fact that there has been paid or will be paid another or subsequent transportation charge, tlie proportional rate is usually lower than the local rate for the same haul. That such proportion may be less than the local over the intermediate line is but an application of the principle that usually a through rate is less than the sum of the locals, it is, therefore, obvious that there is nothing illegal of itself in a proportional rate, although such rate like all other rates must not be unreasonable and must not result in unjust discrhnination or undue preference. The Commission in defining and stating the principles ap- plicable to proportional rates, said : "A proportional rate is nothing more or less than a separ- ately established rate, as that phrase is used in section 6 of the amended act, applicable to through transportation. And it has not Ireen understood either by the Commission, or by & Cold Storage Co. v. C. G. W. R. 188. Lull Carriage Co. v. K. & S. Co., 46 I. C. C. 421. Ry. Co., 19 I. C. C. 15, 16. 187. Coffeyville Vitrified Brick 189. Mobile Chamber of Com- & Tile Co. V. St. Louis & S. F. merce v. M. & 0. R. Co., 32 I. Ry. Co., 12 I. C. C. 498, 499; White C. C. 272; The Tap Line Case, 23 Bros. V. Atchison, T. & S. F. Ry. I. C. C. 549, 650; Red River Oil Co., 17 L C. C. 288; Winona Car- Co. v. T. & P. Ry. Co., 23 I. C. C. riage Co. v. Penn. R. Co., 18 I. C. 438, 447. C. 334; Southeastern Lumber, 42 I. C. C. 548, 558. § 1,18] Must be Just and Reasonable. 385 others so far as we are informed, that a separately estab- lished rate can be other than an open rate available to all. The separately established or proportional rate is simply one way of making up the through charges between two points ; bnt while we have made no criticism and, as at present advised, see no grounds for any criticism of proportional rates applicable only to through movements from a defined ter- ritory or group of points, we have never recognized as valid and, as at present advised, see no grounds upon which we could recognize as valid a proportional rate limited to ship- ments that come into the proportional rate point over the lines of a particular carrier. Proportional rates limited to through movements from defined territory, or from a group of points, seem to form a proper basis for making up through charges for transportation from those points and that territory. But a proportional rate, the use of which is limited to shipments over a particular line, would appear to be a rate that dis- criminates against shippers over another line."^"" When the proportionals are unreasonable the Commission may order, and has ordered, a reduction therein. Proportional rates should as a rule be less than correspond- ing local rates,^"' and such rates have a value when they promote and preserve wholesome competition between pro- ducing centers.'"" The shipper is not interested in the divis- ions of rates between the carriers unless the resultant through rate is, unreasonable, and proportionals do not measure local 190. Bascom Co. v. Atchison, T. 191. Greater Des Moines Com- & S. F. Ry. Co., 17 I. C. C. 354, mitee v. Chicago, R. I. & P. Ry. 356, 357. See also Kansas City Co., 17 I. C. C. 54, 57; Ottumwa Transportation Bureau v. Atchison Commercial Assn. v. Chicago, B. & T. & F. Ry. Co , 16 I. C. C. 195, Q. R. Co., 17 I. C. C. 413, 414. 201; Board of Trade of Kansas 192. R. R. Com. of Kansas v. City V. St. Louis & S. F. R. Co., Atchison, T. & S. F. Ry. Co., 22 32 I. C. C. 297, 307; Commodity I. C. C. 407, 415. Rates to Pacific Coast Terminals. 193. Indianapolis Freight Bu- 32 I. C. C. 611, 632; Hocking Val- reau v. Cleveland, C. C. St. L. Ry. ley R. Co. v. Lackawana Coal & Co., 15 I. C. C. 504, 512; Interior Lumber Co., 224 Fed. 930; Stevens Iowa Cities Case, 28 I. C. C. 64, Grocery Co. v. St. L. I. M. & So. 73; Serry v. Sou. Pac. Co., 18 I. Ry. Co., 42 I. C. C. 396, 398; Iowa C. C. 554, 556; Scott Mayer Com- V. B. & 0. R. Co., 46 I. C. C. 595, mission Co. v. Chicago. R. I. & P. 599. Ry. Co., 28 I. C. C. 529, 532. 386 Charges for Transportation or Persons, etc. [^ 119' "Proportional Eates" as defined in the Panama Canal Act, retained in Transportation Act 1920, are rates "which differ from the corresponding local rates to and from the port and which ai)ply only on traffic which has been brought to the port or is carried from the port by a common carrier.""* Tender this statute the Commiesion established port proportional rates less than the local rates, and it would seem in view of former practices of the Commission that it was the intention of Congress to require that rela- tionship."' § 1]9. Through Rates Must Not Exceed Aggregate of In- termediate Rates. — This Amendment to the foiirth section of the original Act provides: "It shall be unlawful for any common carrier subject to the provisions of this Act * * * to charge any greater compensation as a through rate than the aggregate of the intermediate rates subject to the pro- visions of this Act." It is further provided "that upon application," authority may be given "to charge less for longer than for shorter distances," and the "Commission may from time to time prescril)e the extent to which such designated common car- riers may be relieved from the operation of this section.""* Does the authority to grant relief apply to the whole sec- tion or only to the long and short haul clause thereof? With- out the Amendment the Commission had applied as a general rule the principle that joint through rates should not exceed the sum of the locals, and'" if the statute does not make universal this rule it means nothing.'"^ It w^ould seem that 194. Sec. 378, j^ost. here the House and Senate pro- 195. Baltimore & S. S. Co. v. A. visions, that comparison may be C. L. R. Co., 49 I. C. C. 176. had between the Section as 196. post, Sec. 335. passed and the provision in the 197. Sec. 117, supra; Mayfield Senate and House bills. Senate & Grady Co. Commercial Club v. Bill: "That section four of the B. & O. R. Co., 48 I. C. C. 45, Act entitled 'An Act to regulate 5.5. 56. commerce,' approved February 198. The importance of this pro- fourth, eighteen hundred and vision and the questions that will eighty-seven, be amended by have to be determined thereun- striking out the words 'under s«b- der, make it of interest to insert stantially similiar circumstances § 119] Must be Just and Reasonable. 387 Congresrrt had in mind, when the Senate and House bills were combined and both changed, that relief could be granted and conditions,' where the same appear in said section four, and further amend said section four of said Act by striking out all of said section four, beginning with the words 'Provided, however,' and further amend said section four so that when amended it will read as follows: 'Sec. 4. That it shall be unlawful for any common carrier subject to the provision of this Act to charge or receive any greater compensa- tion in the aggregate for the transportation of passengers or of like kind of property, for a shorter than for a longer distance over the same line or route in the same direction, the shorter being included within the longer distance, or to charge any greater compensation as a through route than the aggregate of the local rates; but this shall not be con- strued as authorizing any com- mon carrier within the terms of this Act to charge or receive as great compensation for a shorter as for a longer distance: " 'Provided, however, That the Interstate Commerce Commis- sion may, from its knowledge, or from information, or upon appli- cation, ascertain that the circum- stances and conditions of the longer haul are dissimilar to the circumstances and conditions of the shorter haul, whether they result from competition by water or rail; then it may authorize a common carrier to charge less for the longer than for the shorter distance for the trans- portation of passengers or prop- erty; but in no event shall the authority be granted unless the commission is satisfied that all the rates involved are just and reasonable and not unjustly dis- criminatory nor unduly preferen- tial or prejudical. " 'That no rates or charges lawfully existing at the time of the passage of this amendatory Act shall be required to be changed by reason of the provi- sions of this section prior to the expiration of six months after the passage of this Act, nor in any case where application shall have been filed before the commission, in accordance wifh the provisions of this section, until a determina- tion of such application by the commission; " 'Provided that such determi- nation is made within one year after the passage of this Act, Provided, further, That if more than one year, in the opinion of the Interstate Commerce Com- mission is needed to consider the questions and make such deter- mination of them, the Interstate Commerce Commission may ex- tend the time beyond one year; Provided, further. That when ap- plication is made to the said com- mission by a carrier to fix a low- er rate for longer than for shorter distances on account of water competition, said application shall not be granted if the commission, after investigation, shall find that the lower rate asked for will de- stroy water competition.' " House Bill: "Sec. 8. That sec- tion four of said Act to regulate commerce be amended so as to read as follows: 388 Charges foe Transportation of Persons, etc. [§ 1L9 only from the long and short haul clause, which clause as theretofore construed meant practically nothing, and that the " 'Sec. 4. That it shall b*^ unlaw- ful for any common carrier sub- ject to the provision of this Act to charge or receive any greater compensation in the aggregate for the transportation of passen- gers, or of like kind of property, for a shorter than for a longer distance over the same line or route in the same direction, the shorter being included within the longer distance, or to charge any greater compensation as a through route than the aggregrate of the local rates; but this shall not be construed as authorizing any common carrier within the terms of this Act to charge or receive as great compensation for a shorter as for a longer distance; " 'Provided, however, that upon application to the Interstate Commerce Commission such com- mon carrier may in special cases, after investigation, be authorized by the commission to charge less for longer than for shorter dis- tances for the transportation of passengers or property; and the commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section; Pro- vided, further. That no rates or charges lawfully existing at the time of the passage of this amendatory Act shall be required to be changed by reason of the provisions of this section prior to the expiration of six months after the passage of this Act, nor in any case where application shall have been filed before the com- mission, in accordance with the provision of this section, until a determination of such application by the commission.' " The Committee of the House, in reporting the original bill, said: "Section Gb proposes an amend- ment to section 4 of the inter- state commerce act in relation to charges for long and short hauls. The existing law provides that the carrier shall not charge greater compensation 'under sub- stantially similar circumstances and conditions' for a snorter than for a longer distance over the same line in the same direction, but authorizes the commission in special cases to relieve the car- rier from the operation of this provision. The courts have so construed the meaning of the words 'under substantially similar circumstances and conditions' as to practically deprive section 4 of the existing law of real vitality. In the substitute recommended by your commitee, section 4 of the existing law is amended so as to leave out the words 'under substantially similar circum- stances and conditions' and to pro- hibit a carrier from receiving greater compensation for a shorter than for a longer distance over the same line in the same direct- ion, the shorter being included within the longer distance, or to receive a greater compensation as a through route than the aggregate of the local rates, but authorizing the Interstate Commerce Com- mission to relieve a carrier upon application from the operation of this section; and in order not to unduly disturb existing conditions § 1.19] Must be Just and Reasonable. 389 words authorizing relief "from tlie operation of this sec- tion" meant that "section" was limited by the words "be au- thorized * * * to charge less for longer than for shorter distances."'"'' The Transportation Act 1920 s;upports this view because in specifying the principles under which relief may be granted, only principles applicable to the long-and- sliort haul clause are named. However this may be, the Commission has applied the principle that, through rates must not exceed the sum of the locals although implying that there might be conditions justifying a departure from the general rule.""" Local rates that are not "subject to the provisions of" the Act to Regulate Commerce are not necessarily a pro])er measure of the through rate. The Commission does, and properly should, give consideration to rates fixed by State Commissions but, were it bound by such rates the ex- clusive power of Congress over interstate commerce would be made subordinate to the action of the states. ""^ In dis- cussing this question the Commission has said: "While state rates are valuable for comparative purposes in fixing a reasonable charge for a transportation service, the assumption of complainant that the action of the defendant in this case in maintaining higher transportation rates on inter- state than intrastate trafific amounts to unlawful discrimina- tion on the part of the carrier is not sound, for upon the record in an abrupt manner the amend- Halsbury's Laws of England, vol. ment further provides that no 4, p. 81. rates or charges lawfully existing 200. Arabol INlfg. Co. v. South at the time of the passage of the Brooklyn Ry. Co., 25 I. C. C. 429, proposed act shall be required to 430: Commercial Club of Duluth be changed by reason of this sec- v. Baltimore & O. R. Co., 27 I. tion prior to the expiration of six C. C. 639, 660. months after passage of the act, 201. Cobb v. Northern Pac. Ry. nor until any application made Co., 20 L C. C. 100, 102; Pulp & with the commission shall have Paper Mfrs. Traffic Assn. v. Chi- been determined." cago, M. & St. P. Ry. Co. 27 199. The English Railway and I. C. C. 83, 96; Corp. Com. of Traffic Act of 1888, section 27, Okla. v. A. T. & S. F. Ry. Co., gave the Commissioners power to 31 I. C. C. 532. Rates on Beer direct that no greater charge and Other Malt Products. 31 I. should be made for a shorter than C. C. 544; Rates on Live Poultry a longer haul when the circum- in Western Trunk, Line Tern- stances demanded such direction. tory, 32 I. C. C. 380. 390 Charges for Transportation of Persons, etc. [§ 120 it is shown that the condition is one over which the carrier has no control." '"' § 120. Through Routes and Joint Rates. — If only the rates on the lines of each carrier considered separately were sub- ject to the regulation of the Commission, it would be very difficult to obtain reasonable rates on those comm<)dities Avhich move over two or more lines. For this reason, carriers subject to the Act are required to establish through routes and joint rates. Joint rates must be reasonable and the principles relating to rates generally apply as well to these rates. Of the right of shippers to through routes and joint rates Mr. Commissioner Clements says :"'"' "The law does not require the commission in all cases where no through routes and joint rates exist to establish them, but only empowers it to do so in proper cases with the manifest intent of giving effect to the general purposes of the act to regulate commerce by securing reasonable facilities to the public and preventing unreasonable and unjust rates, prac- tices, and discriminations, and in the exercise of this authority the commission is bound by the same considerations of justice and fairness as it is in the exercise of the rate-making power in other respects. Where neither the interest of the public, nor the ends of justice as between parties directly interested, will be promoted by the establishment of through routes and joint rates and divisions thereof, a proper case for the ex- ercise of the authority invoked has not bteen shown." In discussing an order for a through route made by the Commission prior to the amendments of 1910 and 1912, the Supreme Court construing the statute said : "We are of the opinion that the Commission had no power to make the order, if a reasonable and satisfactory through route already existed, and that the existence of such a route may be inquired into by the courts." ""* 202. Baxter & Co. v. Georgia, S. 54 L. Ed. 608, 30 Sup. Ct. 417, af- & F. Ry. Co., 21 I. C. C. 647, 648. firming Circuit Court, Northern 203. Loup Creek Colliery Co. v. Pac. Ry. Co. v. Int. Com. Com. Virginia Ry. Co., 12 I. C. C. 471, and setting aside the order of the 477. Commission in Re Matter of 204. Int. Com. Com. v. Northern Through Passenger Routes via Pac. Ry. Co., 216 U. S. 538, 544, Portland Oregon, 16 I. C. C. 300. § 121] Must be Just and Reasonable. 391 § 121. Same Subject — Amendments of 1910 and 1912. — Sec- tion one of the Act to Regulate Commerce, as amended by the Acts of 1906, and of 1920 makes it the duty of carriers "to establish through routes and just and reasonable rates, fares and charges applicable thereto.'"" The Amendment of August 24, 1912, kno-\vn as the Panama Canal Act, provided that, "When property may be or is trans- ported from point to point in the United States by rail or water through the Panama Canal or otherwise * * * in addition to the jurisdiction given by the Act to Regulate Com- merce" other jurisdiction is given.""* In the specified ad- ditional jurisdiction this is stated: "To establish through routes and maximum joint rates between and over such rail and water lines, and to determine all the terms and condi- tions under which such lines shall be operated in the hand- ling of the traffic embraced.""' The Act of 1910, amended by Transportation Act 1920, gave the Commission poAver "after hearing" to "establish through routes, joint classifications, and joint rates, fares or charges" or "the minima or maxima or minima and maxima to be charged," and to "prescribe the division of such rates, fares and charges," and to prescribe the "terms and condi- tions under which such through routes shall be operated;" and the provision was made to apply "when one of the con- necting carriers is a water line."^"^ There was by Act 1910. retained in 1920 Act, a limitation on the power by the pro- vision that "In establishing any such through route the Com- mission shall not (except as provided in Section 3, and ex- cept where one of the carriers is a water line), require am' carrier by railroad, without its consent, to embrace in such route substantially less than the entire length of its railroad and of any intermediate railroad operated in conjunction and under a common management or control therewith, which lies between the termini of such proposed through route, unless such inclusion of lines would make the through route un- reasonably long as compared with another practicable through route which could otherwise be established,""" 205. Sec. 335, j)ost. 208. Sec. 400, post. 206. Sec. 375, post. 209. Sec. 401, post. Downie 207. Sec. 377, post. Pole Co. v. N. P. Ry. Co., 31 I. C. 392 Charges for Transportation of Persons^ etc. [§ 121 The Act of 1906, limiting the Commission's power by this language, "provided no reasonable or satisfactory through route exists," was not reenaeted in section 15 of the Act of 1910. This change in the statute makes inapplicable to the present law the decision of the Supreme Court in Inter- state Commerce Commission v. Northern Pacific Kailway, supra. The law as now written provides for a hearing with or without a formal complaint and invests in the Commission a discretion as to when and under what conditions through routes and joint rates may be established; the limitation quoted above, of course, controlling this discretionary power. Other than the quoted limitation the Commission now has like power over through routes and joint rates as over any other kind of a rate."'" In exercising this discretion the Com- mission may permit one carrier to demand "financial security before entering into either joint rate arrangements or ac- cepting freight under proportional rates."'^ The Commission has construed the words "or otherw^ise" quoted from the Panama Canal Act, infra, and has held that it could thereunder establish through routes with a water carrier.''" The Commission in the case where such holding was first made said : "If the above alnendment applies to the traffic in question, the right of the Comioission to establish this through route is clear. The defendants contend that it does not apply, for the reason that this amendment relates only to the traffic wdiich passes through the Panama Canal. They argue that the words 'or otherwise' modify the phrase 'by rail and water' and not the phrase 'through the Panama Canal.' But the plain every- day reading of the act is 'through the Panama Canal or other- C. 142; Lumber Rates from North 210. Truckers Transfer Co. v. Pacific Coast, 30 I. C. C. Ill; Charleston & W. C. Ry. Co., 27 I. Wheeler Lumber, Bridge & Sup- C. C. 275, 277; Crane Iron ply Co. V. A. T. & S. F. Ry. Co., Works v. United States, Opinion 30 I. C. C. 343; Cement Rates Commerce Court No. 55, pp. 453, from Mason City. 30 I. C. C. 426: 464, 209 Fed. 238. New York Dock Ry. v. B. & O. 211. Truckers Transfer Co. v. R. Co., 32 I. C. C. 568; St. L. I. Charleston & W. C. Ry. Co., 27 M. & S. Ry. Co. V. U. S. 217 Fed. I. C. C. 275. 279. 80. Ogden Gateway Case. 35 I. 212. Augusta & Savannah Steam- C. C. 131. boat Co. v. Ocean Steamship Co , § 122] Must be Just and Reasonable. 393 wise,' and the defendants has referred us to no canon of eonstrnction nor to an.y reason for disregarding the obvious meaning of those words. Indeed, a consideration of the situation to which the amendment aY)plies would seem to con- clusively demonstrate that the position of the defendants is not correct, since the words 'or otherwise' are pure surplusage if read as the defendants say they should be. Traffic through the Panama Canal can only move by rail and water, unless it moves from port to port, and in that case we have no jurisdiction. We hold, therefore, that the Commission has jurisdiction to establish the through routes and the joint rates prayed for." § 122. Rates on Commodities Requiring Refrigeration. — The charge made by a carrier for refrigeration must, like all of its other charges, be reasonable. To determine what is reasonable the general principle applied to other rates must be considered as well as the special circumstances peculiar to the shipment. On this subject the Commission has held :"" "In determining what is a reasonable charge for furnish- ing refrigeration for the movement of citrus fruits from California to eastern markets, nothing should be added by reason of the fact that a refrigerator car is used, since that has been taken into account in establishing the rate of trans- portation, nor for the service of inspection, which is sub- stantially the same for all shipments ; but the expense of transporting the additional weight of the ice and for repairs to the ice bunkers should be considered." In the same case it was held that when the shipper pre- cooled his fruit, such fact mnst be considered in determining the rate.'" 26 I. C. C. ?.80, 384, 385; Decatur 213. Arlington Heights Freight Navigation Co. v. L. & N. R. Co., Exchange v. Southern Pac. Co.. 31 I. C. C. 281; Pacific Nav. Co. 20 I. C. C. 106; same styled case, V. S. P. Co., 31 I. C. C. 472; 22 I. C. C. 149; at p. 156 see dis- Federal Sugar Refining Co. v. C. cussion of "postage stamp rates." of N. J. R. Co., 35 I. C. C. 488; 214. The order of the Commis- Ocean Rail Rates to Charlotte, sion was sustained by the Com- N. C. 38 I. C. C. 405, 410; Balti- merce Court, Atchison, T. & S. F. more & Carolina S. S. Co. v. A. Ry. Co. v. United States, 204 Fed. C. L. R. Co., 49 1. C. C. 176. 647, Opinion Commerce Court No. 394 Charges FOR Transportation OF Peesons, I ETC. [§ 123' § 123. Rates on Returned Shipments. — What the privilege of returning shipments at less than usual rates means and the origin and growth thereof are stated hy the Commission : "Tht returned-shipment privilege seems to have originated for the purpose of assisting the argicultural interests. Farm implements and machinery often prove defective or break down while in use, and if full tariff rates must he paid for their transportation to a point where repairs can be affected the fanner is subjected to a serious handicap. Kules were therefore adopted permitting the return of agricultural im- plements, vehicles, and similar articles at one-half the regular rates. "Through the operation of competitive forces the return- shipment rules became increasingly liberal and were gradu- ally enlarged to cover the return of freight of every character and for every purpose. * * * The record shows that while returned shipments form but a small proportion of the car- riers' entire traffic the privilege is of importance to several branches of industry." After thus describing the rule and after discussing the question involved therein, the Commission condemmed the privilege as having no legal or logical basis."" In the same opinion, at page 418, it was shown that when the returned shipment was on "freight in an obviously de- teriorated condition," the axiom "that rates depend largely upon value" should be considered, not because it was a re- turned shipment but because of the value. The difficulty oi always considering value in this connection is manifest and was pointed out by Mr. Commissioner Clements as follows : "AA^e are not prepared to lay down the principle that old or secondhand articles must be treated differently from new or that vahie is the controlling element in making rates. Such of these articles or parts as are in fact scrap are entitled to 41, p. 627. For ocher applications I. C .C. 623; Albree v. Boston of the rule see Ozark Fruit Grow- & M. R. Co., 22 i. C. C. 303. ers Assn. v. St. Louis & S. F. Ry. 215. Re Reduced Rates on Re- Co., 16 I. C. C. 106; Asparagus turned Shipments, 19 I. C. C. 409, Growers' Assn. v. A. C. L. R. Co., 414, and discussion and cases cited 17 I. C. C. 423; Georgia Fruit at pp. 416, 417- Exchange v. Southern Ry. Co., 20 <§> 124] Must be Just and Reasonable. 395 the scrap rate, but if they have any value as the articles which they originally purported to be, we do not feel that we can require the cai-riers to transport them at other than the regular tariflp rates applicable to the new or originally transported article." "'" § 124. The Public Interest Must Be Considered in Making Rates. — A rate made by a carrier, a legislative or an ad- ministrative body must not disregard the interests of the public, and the fact that a particular rate is necessary to ena])le the carrier to pay interest and dividends will not justi- fy a rate which is unduly burdensome on the public. The legislature of Kentucky having prescribed the maxi- mum 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 re- pair and for earning dividends, we could not say that the act was unconstitutional 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 operating a public highway 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 con- stitutional power in prescribirg rates to be charged by a corporation controlling a public highway, stockholders are not the only persons whose rights or interests are to be con- sidered. The rights of the public are not to be ignored. It is alleged here that the rates prescribed are unreasonable 216. Minneapolis Traffic Assn. v. olis & St. L. R. Co. v. Minnesota, Chicago & N. W. Ry. Co., 23 186 U. S. 257, 268, 46 L. Ed. I. C. C. 432, 437. 1151, 1158, 22 Sup. Ct. 900; 217. Covington & L. Turnpike Loftus v. Pullman Co., 18 I. C. road Co. v. Sandford, 164 U. S. C. 135, 140; "Having in mind the 578, 596, 597, 41 L. Ed. 560, 566, public interest;" R. R. Com. of 567, 17 Sup. Ct. 198. Quoted and Texas v. Atchison, T. & S. F. Ry. followed, Smyth v. Ames, 169 U. Co., 20 I. C. C. 463, 484; R. R. S. 466, 545, 42 L. Ed. 819, 848, 18 Com. of Kansas v. Atchison, T. Sup. Ct. 418. See also Minneap- & S. F. Ry. Co., 22 I. C. C. 407, 396 Charges FOR Transportation OF Persons, ETC. [§ 125 and unjust to tho company and its stockholders. But that involvos an inquiry as to what is reasonable and just for tlie pu1)]ic. If the esta])lishing 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 Avould U^ 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 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 right- fully be required to submit to unreasonable exactions for the use of a public highway established and maintained under legislative authority. If a corporaton cannot maintain such a highway and earn dividends for stockholders, it is a mis- fortune for it and them which the constitution does not re- quire to be remedied by imposing unjust burdens upon the public." A particular service falling within the absolute duties of the carrier may be required of a public carrier, when it is necessary to the public convenience, Avhere the whole serv- ice performed yields a fair compensation, even though such particular service must be furnished at a loss to the carrier."" § 125. General Principles Applicable to the Question, What Is a Reasonable Rate? — It was a maxim of traffic managers that "'all the traffic could bear" was the only definite prin- ciple appliea])le to rate making. Kirkman, in the Science of Railways, 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 dopted there would be little difficulty in fixing rates. But it is apparent that such a rule, in view of the fact that the business of transportation companies is affected with 410. As to what is a "fair return" Ed. 93S, 27 Sup. Ct. 585. See in See jyosf. Sec. 131. Supra, Sec. 83. this connection Sec. 100, supra; 218. Atlantic Coast Line R. Co. National Implement & Vehicle V. North Carolina Corporation Assn. v. B. & 0. R. Co., 42 I. C. Commission, 206 U. S. 1, 51 L. C. 461. 468. § 125] Must be Just axd Reasonable. 397 a public use, would be uufair. Mr. Commissioner Clements, in Tift V. So. Ry. Co., 10 I- C. C. 548, 582, says: "This elaim * * * on the part of the carriers is based upon the erroneous assumption, so in-ovalent among traffic manae"*rs, that a rate may be as high as 'the traffic will bear.' " What "the traffic will bear" is, by force of economic law, the maxi- mum. 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 instructive to group what has been said by the courts and the Commission with reference to this problem. The Supreme Court, 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 maintaining a highway under legislative sanction must be the fair value of the property being used by it for the con- venience of the public. And, in order to ascertain that value, the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and are to be given such weight as may be just and right in each case. We do not say that there may not bie 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 rendered by it are reasonably worth." "" In the same case the court said : " 'In passing upon questions arising under the act, the tribunal appointed to enforce its provisions, whether the com- mission or the courts, is empowered to fully consider all the 219. Texas & P. R. Co. v. Int. Ed. 940, 5 I. C. R. 405, 16 Sup. Com. Con., 162 U. S. 197, 40 L. Ct. Rep. 666. 398 Charges for Transportation of Persons, etc. [§ 12G circumstances and conditions that reasonably apply to the sil nation, and that, in the exercise of its jnrisdiction, the tribunal may and shonld consider the legitimate interests as well of the carrying companies as of the traders and shippers, and in considering whether any particular locality is sub- jected to an undue preference or disadvantage the W'elfare of the communities occupying the localities where the goods nre delivered is to be considered as well as that of the com- munities which are in the locality of the place of shipment.' " Tn a later case Covington & L. Turnpike Co. v. Sandford, 104 TT. S. 578, 59G, 597. 41 L- Ed. 560, 566, 567, 17 Sup. Ct. 198 section 124 supra, it was held, that "the rights of the public are not to be ignored." The Supreme Court in the Minnesota Rate cases,"" speak- ing of how to determine the "fair value" upon which a fair return was legally required, said: "The ascertainment of that value is not controlled by artificial rules. It is not a matter of formulas, but there must be a reasonable judgment having, its basis in a proper consideration of all relevant facts." There is, however, a flexible limit of judgment which be- longs to the power to fix rates, "^ and, as to rates within the Interstate Commerce Acts, "the Commission is the tribunal that is intrusted with execution" of such laws."" § 126. Same Subject — Some Statements of the Commission as to Such General'', Principles. — The Commission in Delaware State Grange v. New York. P. & N. R. Co., 4 I. C. C. 588, 3 I. C- R. 554. 560. 561, in speaking of the general principles to be considered in rate making, said : "The mandate of the statute is that all rates must be reasonable and just, but how the reasonableness and justice of a rate are to be determined is not prescribed by the statute, nor lias any satisfactory test been evolved by transportation experts. Conflicts about rates arise from the conflicting in- terests of carriers and shippers. As carriers make their own 220. Simpson v. Shepard, 230 U. S. 1, 26, 51 L. Ed. 933, 27 Sup. U. S. 352, 57 L. Ed. 1511, 3.3 Sup. Ct. 585. Ct. 729. 222. Int. Com. Com. v. Chicago. 221. Atlantic C. L. R. Co. v. R. I. & P. Ry. Co., 218 U. S. 88, North Carolina Corp. Com., 206 108, 54 L. Ed. 946, 30 Sup. Ct. 585. § 126] Must be Just and Reasonable. 399 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. T'nder stress of esompetition, or sometimes for the purpose of developing business, rates that are equitable or even ver}- low are likely to be made. But when a controversy arises between the public and a carrier, the question of the reasonable limit of a rate usually involves many considerations, and is often difficult to determine. A rate that might be regarded as reasonable and just by a pro- ducer and shipper, might, from a carrier's standpoint, be deemed extremely unreasonable and unjust, and, so, converse- ly, a rate that a carrier might claim to be reasonable in itself, and that it might support with strong reasons based upon the cost of the service, the quantity of the business and the characteristics of its line of road, might exhaust the greater part of the proceeds of the producer's commodity and be destructive to his interests. It is only stating a truism, therefore, to say there is no recognized test of a rate mutually reasonable for a carrier and for the producer of the traffic. "The reasonableness of a rate must consequently be as- certained in every instance in wiiich the question arises, by its relations botli to the- carrier and to the shipper, and by com- parison with rates normally charged for like or similar serv- ice." In Thompson Lumber Co. v. Illinois C. R. Co., 13 I. C. C. 657, 664, the Commission says : "In determining what is a reasonable and just rate many considerations are involved. Among these are the general financial and physical condition of the road, the character of the commodity iu question, whether it constitutes a large or small part of the business of the carrier, whether it is economical or expensive to handle, how it compares with other commodities hauled, and, as evidencing the railroad's own judgment, whether a different rate has bleen in eflPect 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. 436, ] I. C. R. 754, 760, 761, as follows: 400 Charges for Transportation of Persons, etc. [§ 126l ''Tlie 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 purpose. The value of the service with respect to the articles carried, the volume of business, and the conditions and force of competition are justly considered to have con- trolling weight in determining the charges for transportation. But even with regard to the cost of service the cost is at least somewhat greater to Boston than to New York." Import tariff duties should not be counted as part of a transportation charge. ■"^ "A railroad company may be operated with a less return than it ought to enjoy or even at a loss, but neither condition of affairs would justify the exaction by it of rates that are higher than they reasonably should be for services performed, all things being considered." ^^* The problem is difficult, the facts to be considered multitudi- nous and of an infinite variety of modifying conditions, from which the Commission, without applying any policy which runs counter to the power granted and the duty imposed upon it, seeks by "slow evolution" to develop a satisfactory system of rates."^ In the Eastern Advance Rate case""' the Commission said: "This Commission is called upon to deal wnth rates as they exist, and in so doing we ordinarily consider them, not from the revenue standpoint, but rather from the commercial and traffic standpoint. At the same time it is now the settled law that there is a limit below which the revenue of railroads can not be reduced by public authority, and if there were no such constitutional limitation it would nevertheless be- hoove every regulating body to permit the existence of such 223. Florida Fruit & Vegetable Ry. Co. v. International Bridge Assn. V. Atlantic C. L. R. Co., 17 Co.. 8 App. Cas. 731. I. C. C. 552, 561. 225. Advances in Rates— West- 224. R. R. Comrs. of Iowa v. II- ern Case— 20 I. C. C. 307, 379. linois Cent. R. Co., 20 I. C. C. 226. Advance in Rates — Eastern 181, 186, citing Canada Southern Case— 20 I. C. C. 243, 248. § 127] Must be Just and Reasonable. 401 rates, when possible, as will yield just earnings to the rail- ways. The question of revenue is therefore fundamental and ever-present in all considerations as to the reasonableness of railroad rates, although it may not be and seldom is, where single rates are presented, the controlling question- " § 127. Same Subject. — Illustrative Cases. — It has been the purpose of this chapter to give as comprehensively as possible the decision both of the Commission and Coui'ts which show the principles M'hich have been considered and applied in making rates. The principles stated herein illustrate the difficulty of the problem, but they furnish data from which some generalizations may be drawn. In recent volumes of the report of the decisions of the Commission there is in the index a title, Measure of Rates. Under this general title may be found references to the Commission's rulings relating to the "adjustment of rates," "advantages and disadvan- tages," "basis of rates," "branch line through thinly popu- lated region," "burden of transportation," "capacity of boats," "car earning," categorical answers," "channels, depth of," "charging ^vhat traffic will bear," "circumstances and conditions," "classification," "commercial and economic con- ditions," "comparison of rates," "competition," "competi- tive rates," "cost," "cost of carriage." "cost of construc- tion," "cost of handling," "cost of maintenance," "cost of operation," "cost of production," "cost of transportation," "cost of service," "density of traffic," "distance," "division of rates," "division of through rates," "earnings," "empty car movement," "equipment," "erroneous rates," "factor in through rates," "free movement of traffic," "harbor, con- dition of," "length of haul," "local rates," "long as well as short haul," "main line rates," "nature of commodity," "navigation, condition of," "paper rates," "past rates," "raw material," "relative rates," "return haul," "risk," "state rates," "three line haul," "ton mile earnings," "ton per mile rate," "tonnage," "train mile earnings," "transpor- tation conditions," "trunk line rates," "two line haul," "use," "value of commodity," "value of service," "volume of traffic," voluntary rates," "voluntary reductions," "weak line," and "wharf and dock facilities." 402 Charges for Transportation of Persons, etc. [§ 128 And in one ease the question of how a rate on a locomotive moving on its own wheels should be constructed was dis- cussed."" Many other facts have been discussed in the opin- ions of the Commission. These but illustrate the correctness of the statement that "multitudinous facts must be consid- ered." The Transportation Act 1920, Sec. 15a adds "fair return" and defines the term, making such return a fact that must be considered. Prior to the passage of that Act, the Commission ahvays, in a general system of rates, gave consideration to a fair return on the investment. The Amendment emphasizes this factor in rate making. § 128. Same Subject — Discussion of Principles in Chicago Live Stock Exchange Case — In speaking of the factors to be considered in rate-making,""^ Judge Bethea, citing authori- ties, said: "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 fixing a rate. Noyes, Am. R. R. Rates, pp. 61 et seq., 85-109. Among other things: (1) The value of the service to the shipper, including the value of the goods and the profit he could make out of them by shipment. This is con- sidered an ideal method, when not interfered with by com- petition or other factors. It includes the theory so strenu- ously 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 Com- merce 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 car- rier 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, 227. Re Investigation of Ad- Court, Int. Com. Com. v. Chi- vance on Transportation of Lo- cago G. W. Ry. Co., 209 U. S. comotives and Tenders, 21 I. C. 108, 52 L. Ed. 705, 28 Sup. Ct. C. 103. 493. In this case the order of 228. Int. Com. Com. v. Chicago the Commission in Chicago Live G. W. R. Co., 141 Fed. 1003, Stock Exchange v. Chica,go G. 1015, 1016. Sustained in Supreme § 128] Must be Just and Eeasonable. 403 however. Interstate Commerce Commission v. Baltimore & 0. Ry. Co., 43 Fed. 87, 3 T. C. R. 192; Ransome v. Eastern Coun- ties 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 '& Milwaukee Railroad Co., 167 U. S. 633, 17 Sup. Ct. 986, 42 L. Ed. 306. (3) Weight, bulk and con- venience of transportation. (4) The amount of the product or the commodity in the hands of a few persons to ship or com- pete for, recognizing the principle selling cheaper at whole- sale 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 rail- road company and the different localities. Interstate Com- merce 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, rec- ognize as a very important factor. Pickering Philips v. Lon- don & Northwestern Railway Company, 2 Q. B. D. (1882) 229 (this case construes section 2 of the English act of 1854, which is almost like section 3 of our interstate commerce act) ; Inter- state Commerce Commission v. B. & 0. Ry. Co., supra-.; Cin- cinnati, New Orleans & Texas Pacific Railway Company v. Interstate Commerce Commission, 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935 ; Interstate Commerce Commission v. Ala- bama Midland Railway Company, 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed. 414 ; Louisville & Nashville Railroad Co. v. Behl- mer, 175 U. S. 648, 20 Sup. Ct. 209, 44 L. Ed. 309 ; East Ten- nessee, 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 Commission, 162 U. S. 197, 16 Sup. Ct. 666, 40 L. Ed. 940; Interstate Commerce Commission v. Louisville & Nashville Railroad Co., 190 U. S. 273, 23 Sup. Ct. 687, 47 L. Ed. 1047 The Supreme Court has also held that it may be presumed that Congress, in adopting the language of the English act, had in mind the construction given to the words "undue preference" W. R. Co., 10 I. C. C. 428, was held invalid. 404 Charges FOR Tkansportation OF Persons, ETC. [§ 129 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 control- ling as a matter of law. It is a question of fact to be decided by the proper tribunal in each ease as to what is controlling." § 129. Same Subject— Rate Considered in and of Itself.— With reference to a rate "in and of itself." the Commission has said :''" "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 con- nection with other rates. The freight rates of this country, both upon dififerent commodities and between different locali- ties, 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 the Cattle Raisers' Asso. case,''" the Commission discuss- es the cost to the carier at orinating 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 movement, number of cars in trains, average loading, volume and desirability of the traffic, return of empty cars, liability to damage, cost of carriage, in- creased cost of producing live stock, decreased selling price, method of making the advanced rates, disappearance of com- petition, 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 pertinent circumstances and conditions. § 130. Same Subject — Commission Not Bound by Technical Rules. — In the investigation of these question the Commission is not hampered by technical rules. The Supreme Court, said -r 229. Tileston Mill Co. v. North- 231. Int. Com. Com. v. Baird, ern P. R. Co., 8 I. C. C. 346, 361. 194 U. S. 25, 44, 48 L. Ed. 860, 230. Cattle Raisers' Assn. v. Mis- 869, 24 Sup. Ct. 563. souri, K. & T. R. Co., 11 I. C. C. 296. <§ 1,30] Must be Just and Reasonable. 405 ''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 func- tion is largely one of investigation, and it should not be hamp- ered in making inquiry pertaining to interstate commerce by these narrow rules which prevail in trials at common law, where a strict correspondence is required between allegation and proof." The Commission's right to consider the problem in all its phases was clearly stated by the Supreme Court, as follows : "The Commission is the tribunal that is intrusted with the execution of the interstate commerce laws, and has been given very comprehensive powers in the investigation and deter- mination of the proportion which the rates charged shall bear to the service rendered, and this power exists, whether the sys- tem of rates be old or new. If old, interests will have prob- ably become attached to them and, it may be, will be disturbed or disordered if thej- are changed. Such circumstance is, of course, proper to be considered and constitutes an element in the problem of regulation, but it does not take jurisdiction a- way to entertain and attempt to resolve the problem. And it may be that there cannot be an accommodation of all interests in one proceeding."""' The Commission in discussing its own power said : "It must be borne in mind that this Commission is not a court of law; its function is to apply the mandatory and re- strictive provisions of the Act to Regulate Commerce to stated conditions of fact. "We must regard the problems presented to us from as many standpoints as there are public interests involved. "-"=' 232. Int. Com. Com. v. Chicago Western Case, — 20 I. C. C. 307, R. I. & P. R. Co., 218 U. S. 88, 315; Theory on which case tried 108, 54 L. Ed. 946, 30 Sup. Ct. followed regardless of variance 669. See also Atlantic C. L. R. between allegation and proof. Hec- Co. V. Florida, 203 U. S. 256, 51 kle v. C. B. & Q. R. Co., 46 I. C. C. L. Ed. 174, 27 Sup. Ct. 108. See 513, 514; New York Harbor Case, also Seaboard A. L. Ry. Co. v. 47 I. C. C. 643, 647; but "essen- Florida, 203 U. S 261, 51 L. Ed. tial rules of evidence" must be 175, 27 Sup. Ct. 109; and post, preserved, A. T. & S. F. Ry. Co. Section, 189. v. Spiller, 246 Fed. 1, 158 C. C. 233. Advances in Rates, — A. 227. 406 Charges for Transportation of Persons, etc. [^ 131 § 131. Same Subject — Summary. — The statement so fre- quently made and reiterated tliat the problem of rate-making is a difficult one, means no more than that there is no definite scientific rule by which it can, with certainty, be determined just what is a reasonable rate. The "tribunal appointed by law and informed by experi- ence" has evolved and is evolving principles Avhich will fur- nish sufficient data to justify generalizations broad enough to authorize the deduction of scientific principles. In making these deductions, the first consideration is the agency which performs the service. This agency performs a public service, devotes its property to a public use and must, therefore, sub'- mit to public regulation ; but the capital of this agency is pri- vate capital entitled to protection as such. To these facts the law applied the principle that those who furnish such private capital so devoted to a public use are entitled to receive a fair return from such investment. What is a "fair return" invol- ves economic considerations such as the risks involved in the investment, the security of the investment because it is a practical monopoly, returns which capital may secure from other investments, as well as the public necessity that capital shall be devoted to this special use. "Fair return" necessarily involves the question of the value of the property so devoted to the public use. In determining this value there must be considered the investment, that made originally and that added in permanent improvements, the present market value of the stocks and bonds, which are but symbols of the invest- ment, the question of the cost of the property, its reproduction cost and the methods of making the investment,, that is, was the investment made wisely and honestly or otherwise. The character of the territory served by the carrier is not infre- quently a fact which must not be lost sight of. The extent and regularity of the whole movement is determined by the character of the inhabitants and the kinds of business con- ducted by them. The physical situation of the agency as to grades, curves, etc., may materially afifect the cost of the serv- ice and thereby determine the amount of the return which should bic received. The attitude of the agency to the question is not without value ; the way the problem has been solved by the agency in § 131] Must be Just and Reasonable. 407 a long course of dealing would indicate that such agency has found a solution not unfair to itself. The thing transported must be considered. Is it heavy as compared with the space it occupies? Does it require any spe- cial equipment? Is it subject to loss or injury in transport- ing? Is there much or little of it?- The answers to these ques- tions furnish facts which must be considered in classifying commodities so as to fix rates or charges for their transporta- tion. The places from and to which the commodities move are fac- tors in the problem. The distance a thing is hauled must be considered, as the greater the distance the less ordinarily is the cost for each mile of the haul, and the service of loading and unloading applies the same to a short as to a long haul. The situation of the man who owns the thing moved. and the purpose of the movement frequently affects the question of the rate. This does not mean that rates must be determined by the use to which the commodity is put; it means that a pro- ducer of a commodity which is also produced by others in the same general territory, the market for all the producers being the same, cannot ship otherwise than upon rates not greatly higher than his competitors. This principle is similar to the one that justifies a rate basis made to meet market competi- tion. A thing may grow or be mined in w^idely different lo- calities, and the sale of the thing may be in the same market. Obviously that this market may have the benefit of competi- tion and that producing localities may have the benefit of a market, distance cannot be made an ah'solute measure for the rates. So the public interest must not be disregarded in determin- ing what this public agency shall receive for performing the duties which society has farmed out to it. Rates must not be so adjusted as to deprive the public of the service, commodi- ties must be moved and they cannot be moved if the charge therefor exceeds the value to be derived from the movement. One producer must not be permitted a monopoly in serving the public. That charges may not exceed the value of the service is an economic law depending upon neither court nor commission for its enforcement. 408 Charges FOR Transpoetation OF Persons, ETC. [§ 131 Carriers may with propriety and for the good of the general public make rates barely more than the cost of the particular movement, in order to develop industries, create and maintain competition and serve those who because of their location dis- tant from the point of production cannot be otherwise served. JRate-raaking tribunals may not make rates so low as to deprive private capital of a substantial return on the fair value of the property devoted to the public use. While long existing wrongs do not become rights and no one can have a vested interest in a wrong, the fact that in the slow evolution toward a science of rate-making there have grown up rate situations inconsistent with the principles which must exist when there is such a science, does not justify an abrupt and radical alteration of these situations. Existing conditions are facts which must be recognized in the application of all abstract economic principles, and while the principle is not destroyed ]>y such recognition, it may be inapplicable to the particular situation. To determine what is a reasonable rate, the law must be ap- plied, economics considered and ethics invoked, and while the facts to be weighed are multitudinous and the scientific princi- ples few, we may say that it is not fanciful to anticipate that a system of rate-making will be evolved which will approach justice. Shippers and carriers contending each with the other, sometimes selfishly, but not infrequently with an earnest de- sire for a right solution, presenting their theories to a dis- interested and unbiased tribunal, "appointed by law and in- formed by experience," may furnish data which, being sifted, studied and classified in its reports, will enable that tribunal to solve the problem. CHAPTER IV. EQUALITY IN RATES. 132. Scope of Chapter. 133. Common Law as to Equality in Rates by Carriers. 134. Same Subject. Damages. 135. Comparison of the English Railway and Canal Act with the Act to Regulate Commerce. 136. Discrimination Forbidden. 137. Discrimination against Individuals. 13.8. Same Subject. 139. Same Subject. Construction by the Commissicn. 139a. Same Subject. Independent Contributing Causes. 140. Same Subject. Allowances to Shippers. 141. Trap Car Service. 142. Peddler Cars. 142a. Private Cars. 143. Car Spotting. 144. Undue Preferences in Favor of Persons or Localities. 145. Same Subject. Application of Section made by the Com- mission. 145a. Differentials. 146. Discrimination against Traffic. 146a. Same Subject. Competition between Users of Related Rates. 147. Same Subject. Discrimination Beyond the Control of the Carrier. 148. Facilities for Interchange of Traffic and Rates and Charges to Connecting Lines Must Be without Undue or Unreason- able Preference. 149. Same Subject. Statute. 150. Same Subject. Statute and Proviso. 151. Through Routes and Joint Rates. 152. Discrimination by Charging More for a Shorter than a Longer Haul. 153. Long and Short Haul. Old Law Construed. Definite Con- struction. 154. Long and Short Haul Clause under Act of 1910. 154a. Long and Short Haul Clause under Act of 1920. 155. Fourth Section. Relationship between Through Rate and In- termediate Rates. 156. Discrimination between Carloads and Less than Carloads. 157. Bulked Shipments. 158. Carloads, Ownership of. 159. Train Loads. (409) 410 Equality in Eates. [§ 132 160. Classification of Commodities Should Be ^Yithollt Discrimi- nation. 161. Uniform Classification. 162. Power of the Commission over Classification. 163. Milling in Transit. 164. Rebilling. 165. Rebilling— Found Illegal. 166. Rebilling Illegal Only When Unjustly Discriminatory. 167. Rebilling.. Conclusion. 168. Payment of Elevator Allowances 1^69. Transit Privileges — Generally. 170. Allowances to Tap Line Railroads. 171. Allowances to Industrial Tracks. 172. Illegal for Carriers to Transport Commodities Produced or Owned by Them or in Which They Are Interested. 173. Commodities Clause of Act of 1906. 174. Cars Must Be Furnished without Discrimination. 175. Same Subject. Principles Applied by the Commission. 176. Freight Charges Must Be Collected without Discrimination. 177. Right of Carrier to Route Shipments Beyond Its Own Ter- minus. 178. Discrimination in Billing. 179. Tariffs of Rates Must Be Printed, Posted and Maintained. 180. Same Subject. Misquoting Rates. 181. Different Rates over the Same Line in Opposite Directions. 182. Discrimination by Granting Free Service. 183. Basing Points, Group Rates and Zone Rates. 184. How Far a Rate Made by a State Relieves a Carrier from the Duty to Serve Communities with Legal Equality. 185. Commutation. Mileage and Party Rate Tickets. 186. Rebates. 187. Same Subject. Corporation Punishable. 188. Summary § 132. Scope of Chapter. — A rate may be reasonable, and yet, because of its relation to other rates, unlawful as violative of the provisions of the Act to Regulate Commerce which re- quire a just equality in rates. Many of the facts affecting the reasonab^leness of rates must be considered in determining whether or not a rate is unlaw- fully discriminatory or preferential. "While this is true, there are certain principles which have been specially applied to the question of equality in rates. It is the purpose of this chapter to state these principles with the application thereof that has been made, and to deduce therefrom, to the extent that may be, such rules as can be legally and properly applied. In do- § 133] E-QUALiTY IN Rates. 411 ing so, it must not be forgotten that the facts to be considered are mmierous and of constantly varying force, that a definite measure for the determination of the legality of a rate has not been fixed and that a flexible judgment must be applied to situations as they arise, and that long established and gen- erally accepted conditions cannot be abruptly changed, but that slow evolution is the concomitant of rate regulation. § 133. Common Law as to Equality in Rates by Carriers. — The common law requirement as to the reasonableness of rates we have seen supra, sec. 61, was undisputed. Equality in rates was not so definitely provided for in that system of laws, 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 Brown said :^ "Prior to the enactment of the act of Febiruary 4, 1887 (24 Stat, at L. 379), to regulate commerce, commonly known as the Interstate Commerce Act, railway traffic in this country was 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. 632) ; though the weight of authority in this country was in favor of an equality of charge to all per- sons for similar services." That the common law required equality of service and charges under the same or similar circumstances more clearly appears from a subsequent decision of the Supreme Court in Western Union Tel. Co. v. Call Publishing Co.,^ where Mr. Justice Brewer said : 1. Int. Com. Com. v. Baltimore 2. Western Union Tel. Co. v. & 0. R. Co., 145 U. S. 263, 36 Call Publishing Co., 181 U. S. 92, L. Ed. 699, 703, 12 Sup. Ct. 844. 45 L. Ed. 765, 21 Sup. Ct. 561. See 3 Fed. Stat. Ann. 813. 412 Equality in Rates. [§ 134 "Common earriers, 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 sovereign powers, such as the right of eminent domain, and so endowed by reason of the public service they render. As a con- sequence of this, all individuals have equal rights both in re- spect to service and charges. Of course, such equality of right does not prevent differences in the modes and kinds of service and diflferent 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 forbid 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 cannot be so great as to produce an unjust discrimination. To affirm that a condition of things exists un- der which common carriers anywhere in the country, engaged in any form of transportation, 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 congres- sional action," and, we may conclude, that such principles re- quired "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 services and charges should bear a reasonable relation thereto. § 134. Same Subject — Damages. — In the Parsons case' the question discussed was not the ng^it to "equality of charge * * *• for similar services," but. that opinion had reference to plaintiff's right to recover damages under the special facts there involved. That inequality of charges for similar serv- ices was wrong Avas not questioned for, said the court: "Be- fore any party can recover under the aci he must show, not 3. Parsons v. Chicago & N. W. 2.3.1, 17 Sup. Ct. 887. R. Co., 167 U. S. 447, 42 L. Ed. § 134] E-QUALiTY IN Rates. 413 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 excess 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." The same comment applies to the decision in the Coal case. That case was based upon the fact that the carrier had given to certain shippers what was decided to be a rebate and had not given the same allowances to the plaintiff suing. In the District Court the plaintiff recovered/ and the recovery was sustained by the Circuit Court of Appeals.^ In the Supreme Court the judgment of the Circuit Court of Appeals was re- versed and a new trial ordered, not because the plaintiff did not have a right of action, but because it had not shown that it had suffered legal damages." Neither of these cases denies that at common laAV a shipper had a right to equality of charges under similar circumstances, and in this respect neither conflicts with the statement of Mr. Justice Brown quoted in the preceding section. That equality of service from a public service company or corporation was a right at common law, seems to be, so far as the Supreme Cotirt of the United States has spoken, undisputed. In order to recover damages for an invasion of this right proof of the fact of having suffered legal damages is necessary. Where as under the Constitution of the United States, a schedule of rates may not be fixed less than will yield a fair re- tiu-n on the property employed in the public use. every custom- er of a public carrier is, to some extent, interested in Avhat is charged every one else. It is true that an individual may not have a cause of action so long as wliat he pays is reasonable, unless the preference granted others damages him . Neither under our statute nor under the common law is mere discrimination prohibited, but it will be found upon an 4. International Coal Mining Co. ^ 6. Pennsylvania R. Co. v. Inter- V. Pennsylvania R. Co., 162 Fed. national Coal Co., 230 U. S. 184, 996. 57 L. Ed. 1446, 33 Sup. Ct. 893. 5. Pennsylvania R. Co. v. Inter- See, following this case and cit- national Coal Co., 173 Fed. 1, 97 ing authorities, New Orleans C. C. A. 383. Board of Trade v. Illinois C. R. C, 29 I. C. C. 32. 414 Equality in Eates. [§ 135 exaniination of the English authorities, that where the cir- cumstances and conditions were the same, those who dealt with a common carrier were entitled to equal treatment. These principles are consistent with what, in 1916, the Com- mission announced as its settled doctrine/ § 135. Comparison of the English Railway and Canal Act with the Act to Regulate Commerce. — The remark of the Su- preme Court in Int. Com. Com. v. Baltimore & 0. R. Co.," ''that Congress in adopting the language of the English act, had in mind the construction given to these words by the Eng- lish courts" had reference to section three of our act, although to a lesser extent the same could bie said of section two. Section two fo the act of February 4, 1887, post,, § 345, known as the unjust discrimination clause, is based upon § 90 of the English Raihvay 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 re- spect 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 circumstances." Section two of the Interstate Commerce Act used the words "under substantially similar circumstances and conditions," which phrase is not so exclusive as the words of the English act which requires equality only when the transportation is "over the same por- tion of the line of railway." The American act is, therefore, broader in its scope than the English act, but each act recog- nizes that "different circumstances" may justify different rates. The English statute uses the word "same" before "circumstances," ours uses the word "similar." This differ- ence and the broader scope of the American act should be kept 7. Astoria v. S. P. & S. Ry. Co., & O. R. Co., 145 U. S. 263, 36 L. 38 I. C. C. 16, 24; See also La Ed. 699, 703, 12 Sup. Ct. 844. Crosse Shippers Assn. v. Chicago. 9. Browne & Theobald Law of & N. W. Ry. Co., 38 I. C. C. 453, Railways (English), p. 312. Tram- 461-463, and Sec. 146 a. post. mell. Railroad Commissioners of 8. Int. Com. Com. v. Baltimore Georgia v. Clyde S. S. Co., 5 I. C. C. S.24, 4 I. C. R. 120, 140. <§ 135] E'QUALJTY IN Rates. 415 in mind when considering the English decisions. Section two of the English Railway and Canal Traffic Act of 1854," fur- nished the model of section three of our act.'" The English and the American sections just referred to are each designated as the "undue preference clause." The fourth section of the American act, known as the "long and short haul clause," was unlike 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 distance where the service is similar. The provision is the third paragraph of section twenty-seven and reads as fol- lows :^' "The court or the commissioners shall have the power to di- 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 re- spect of the like description and quantity of merchandise car- ried over a greater distance on the same line of railway." This comparison may be concluded by quoting the language of the Commission as follows :" "In a case purely of alleged undue preference or prejudice the English cases have direct application. Even in cases un- der our second and fourth sections, English cases brought under the undue preference clause in which the decision has held undue preference to exist, have value as showing how strictly the English commission or court has applied the broader language of the clause to a particular set of facts, but when English decisions under the undue preference clause are cited by a carrier in justification of its action under the strict language of ovir second and fourth sections, the cita- tions have greatly diminished force. These sections apply only against rates in specific cases, but the undue preference clause or third section is inclusive ; it applies both to rates 10. Browne & Theobald, supra, English Railway and Canal Traf- p. 405. Trammell Case, supra, flc Act of 1888; Browne & Theol note 5, this chapterr. bald, pp. 765 to 772. 11. post. Sec. 346, note 7, supra, 13. Trammell, Railroad Commis- this chapter. sion of Georgia v. Clyde S. S. 12. Browne & Theobald, p. Co., 5 I. C. C. a24, 4 I. C. R. 120, 771; see also sections 25 to 27 143, 144. 416 Equality in Rates. [§ 136 and facilities, and says gonerally to the carrier, you shall not in any manner unduly i)refer one person or kind of traffic over another, and leave 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 cir- cumstances 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." § 136. Discrimination Forbidden. — Equality of rights and privileges under ''substantially similar circumstances and con- ditions" is sought to be guaranteed shippers and "particular descriptions of tratfic" by sections two, three and four of the Act to Regulate Commerce. These sections, which were in the original Act and have been enlarged and 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 free passes, except under certain prescribed limitations ; prohibit carriers from trans- porting commodities in which they are interested; require the making of switch connections; regulate the pooling of freights: require schedules of rates to be printed, posted and maintained; prevent changes in rates without at least thirty days notice unless where special permission is given to make changes on less notice ; provide punishment for granting, receiving, or inducing the payment of rebates; punish false billing; require witnesses to testify, and pre- scribe methods of procedure for the public enforcement of the act and the protection 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 reason- able and an unreasonable rate and the higher charge may be unjiist and unreasonable. The injustice, however, is so distributed that no one feels seriously hurt and no complaint is made. A preferential or discriminatory charge may make § 137] Equality in Rates. 417 or unmake cities and individuals and may hurt some to the benefit of others. Such charges, therefore, are not only un- just 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 shipper or the community is injured, some- times ruined, by the discriminatory rate. Under the once prevalent system of rebating, businesses were built up or destroyed by carriers. Even since rebating has practically ceased,' cities are helped or injured by privileges given the one and withheld from the other. Barely would carriers have complaints of rates if all rates and practices were adjusted without undue discrimination and unjust preference. Speak- ing of the evils existing before the Act to Regulate Commerce was passed by Congress and which evils the states had in- effectually 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 locality or community, or of some local trade or commercial connection, or for the de- struction or crippling of some rival or hostile line." The problem of giving shippers a just equality is not au 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 accomplish that end. Long existing injustice is hard to dislodge. A j^articular discrimination that has long con- tinued 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 wrongs do not become rights by mere lapse of time. Carriers frequently welcome the aid of the Commission to help rid tliemselves of practices that are un- justly discriminatory. § 137. Discrimination against Individuals. — Section two of the Act to Regulate Commerce jjost section 345, was intended 14. Int. Com. Com. v. Baltimore L. Ed. 699, 703, 12 Sup. Ct. 844. & 0. R. Co., 145 U. S. 263, 36 418 Equality in Eates, [§ 137 to prevent different charges for different persons for a like and contemporaneous service to a like kind of traffic under substantially similar circumstances and conditions. Under the "same circumstances" and "goods of the same descrip- tion" 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 conveyance of goods and not to the persons themselves." This means, and the Act to Regulate Commerce has also been so construed, that com- petition, 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 shipments 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, ' ' said : "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 include competition." In the Troy Alabama case." the Supreme Court advanced 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 apply- ing 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 unreasonable preference or advantage to any particular person or locality, or to charge or receive any greater compensation in the aggregate for the transportation 15. G. W. Ry. Co. v. Sutton. 38 17. Int. Com. Com. v. Alabama L. J. Ex. 177, L. R. 4 H. L. 226, M. R. Co.. 168 U. S. 144, 42 L. 22 L. T. 43, 18 W. R. 92. Ed. 414, 18 Sup. Ct. 45; Pennsyl- 16. Wight V. United States, 167 vania R. Co. v. International U. S. 512. 42 L. Ed. 258, 17 Sup. Coal Mining Co., 173 Fed. 1, 97 Ct. 822. See also Int. Com. Com. C. C. A. 383; reversed on another V. Detroit G. H. & :\I. Ry. Co., point, Pennsylvania R. Co. v. In- 167 U. S. 633, 42 L. Ed. 306, 310, ternational Coal Mining Co., 230 17 Sup. Ct. 986; Re Restricted U. S. 184, 57 L. Ed. 1446, 33 Sup. Rates, 20 I. C. C. 426, 433. Ct. 893. § 137] E-QUALiTY IN Rates. 41i> 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 purpose of the second section is to enforce equality btitween shippers over the same line, and to prohibit any rebate or other device by which two shippers, shipping over the same line, the same distance, under the same circumstances of car- riage, are compelled to pay different prices therefor, and we there held that the phrase "under substantially similar cir- cumstances and conditions," as used in the second section, refers to the matter of carriage, and does not include com- petition between rival routes. "This view is not open to the criticism that different mean- ings are attributed to the same words when found in different sections of the act ; for what we hold is that, as the purposes of the several sections are different, the phrase under con- sideration must be read, in the second section, as restricted to the case of shippers over the same road, thus leaving no room for the operation of competition, but that in the other sections, which cover the entire tract of interstate and for- eign 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 ad- mits that there is no justice in distinguishing between persons. He says:" "If a raili-oad 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 un- 18. Vol. 8, p. 110. 420 Equality in Rates. [§ 138 worthy of notice. They form no appreciable element, and are not to be eomparecl for a moment to the benefits that grow out of the ability of carriers to adapt their properties to the vary- ing needs of those they serve." § 138. Same Subject. — The equality required by section two of the Act is as to all persons for performing "a like and contemporaneous service" relating to a "like kind of traffic" transported "under substantially similar circumstances and conditions." The three quoted provisions are limitations on or exceptions to the general principle of equality. What then is meant by these phrases? In Mitchell Coal & Coke Co. v. Penn. R. Co.'" the contention was made that "contemporane- ous" must be confined to shipments made practically at the same moment of time, and that shipments as much as a month apart were too remote to come Avithin the meaning of the statute. Obviously such a construction would destroy the practical effect of the law, and the court properly held that the word referred to rates in effect and meant "at the same time with the offending rates." In affirming this case in part, the Supreme Court recognized and applied this con- struction.^" "Like kind of traffic" permits a classification of different commodities but the phrase refers to the traffic itself, and not to the use to which it should be put nor to its ownership. In Sec. 89 chapter three hereof is discussed the cases refer- ring to the use of a commodity. Under the holdings of the Commission and the decisions of the courts, in the words "like kinds of traffic," like modifies traffic and not the use to which the traffic may be put.'\ How "similar circumstances and conditions" has been con- strued is shown in the next preceding section. That different persons may own the commodities shipped constitutes no dif- ferent circumstance or condition.". The words relate to the 19. Mitchell Coal Co. v. Pennsyl- L. Ed. 1107, 32 Sup. Ct. 742. See vanla R. Co., 181 Fed. 403, 411. also Business Men's Ass'n v. 20. Mitchell Coal & Coke Co. v. Chicago, St. P. M. & O. R. Co., Pennsylvania R. Co., 2.3.0 U. S. 2 I. C. C. 52, 2 I. C. R. 41. 247, 57 L. Ed. 1472, 33 Sup. Ct. 22. Int. Com. Com. v. Delaware, 916. L. & W. Ry. Co.. 220 U. S. 235, 21. Int. Com. Com. v. Baltimore 55 L. Ed. 448, 31 Sup. Ct. 392, & O. R. Co., 225 U. S. 326. 57 reversing Delaware, L. & W. Ry. § 139] E-QUALITY TN RaTES. 421 eirciimstance of carriage only/'' The provision require the same equality as to the incidents of transportation, the ac- cessorial services, thus it is illegal to give a shipper a prefer- ence by the devise of leasing to him at a nominal charge land used in the transportation of his commodities."' So it is illegal to concede a favored shipi)er the privilege of giving notes in payment of freight due.'"' The rule of eqviality extends to demurrage." The provisions of the Elkins Act prohibiting rebates will be discussed in a subsequent section." § 139. Same Subject — Construction by the Commission. — In Capital City Gas Co. v. Central V. K. Co.'' Mr. Commis- sioner Knapp, speaking for the Commission and having under consideration rates, one of which was made for coal when delivered to a connecting carrier for "railroad supply," and the other and higher of which was a combination rate ap- plicable to coal used for commercial purposes and purposes other than "railroad supply," said: "When lyituminous coal is carried by defendants from Norwood to Montpelier the service is performed under sub- stantially similar circumstances and conditions whether trans- ported for a connecting railroad or for complainant and other "We are constrained to hold that these facts, which are wholly undisputed, establish a discrimination forbidden by the second section of the act. Tn transporting bituminous coal from Norwood to IMontpelier at 90 cents a ton for "rail- road supply" the same service is performed and the cir- cumstances aiul conditions of carriage are the same in every material effect as in transporting coal ;it $1.85 per ton for Co. V. Int. Com. Com. 166 Fed. Co. v. Int. Com. Com. 219 U. S. 499. See as to persons, Re Ad- 498, 55 L. Ed. 310, 31 Sup. Ct. vances on Manganese Ore. 25 I. 279. C. C. 663, 668; Re Commutation 25. United States v. Sunday Tickets to School Children, 27 I. Creek Co,, 194 Fed. 252; affirmed C. C. 144. same styled case, 210 Fed. 747. 23. Pennsylvania R. Co. v. In- 26. Lehigh Valley R. Co. v. ternational Coal Mining Co., 173 United States, ISS Fed. 879. Fed. 1, 97 C. C. A. 383. See 27. Sec. 371. Same Case, 230 U. S. 184, 57 L. 28. Capital City Gas Co. v. Cen- Ed. 1446, 33 Sup. Ct. 893. tral Vermont R. Co., 11 I. C. C. 24. Southern Pacific Terminal 104, 105, 106, 107. 422 Equality in Bates. [§ 139 complainant and other consignees. This appears to be con- ceded since no proof was offered that the fact is otherwise. It follows, as we think, that the difference in rates is a violar tion of the statute. Wight V. United States, 167 U. S. 512, 42 L. Ed. 258, 17 Sup. Ct. Kep. 822 : Interstate Commerce Commission v. Ala- bama Midland R. Co., 168 V. S. 144, 166, 42 L. Ed. 414, 423, 18 Sup. Ct. Rep. 45. "In the former case it was held that the phrase 'under sub- stantially similar circumstances and conditions," as said in the second section, refers to the matter of carriage, and the decision therein rendered, as explained and confirmed in the subsequent case, condemns as unlawful 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 deny- ing 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 presumes a common injury to those compelled to pay the higher rate because of the concession to the interest favored. If those defendants obtain only rea- sonable returns from their entire coal traffic, it may be well claimed that the rates charged complainant and other Mont- pelier consumers are higher than they would be but for the much lower rates allowed on coal for "railroad supply." "Moreover, if this view is correct, the absence of actual prejudice to complainant would not excuse the defendants. The most salutary law may doubtless be disregarded in some cases without injury and inflict a degree of hardship in other cases by its enforcement. Whatever may be said in that re- gard in the present instance, we are convincd, upon the au- thority of the decisions above cited, that the regulating stat- ute does not permit the discrimination shown in this case and our ruling must so declare." The disei'imination meant by the Act is everything that may affect the shipper, for, says the Commission: "That one shipper may not enjoy at the hands of a carrier advantages that are denied to other shippers is a principle asserted in § 139A] E'QUALiTY IN Rates. 423 the Act throughout its various provisions,""" or, as sub- sequently stated by the Commission: "The fundamental prin- ciple of this Act, (the Act to Regulate Commerce), as so often stated by the Supreme Court, is one of fair play.'"*" § 139A. Same Subject. Independent Contributing Causes. The shipper's situation and the relation of other than the rates involved to similar rates paid by a competitor are facts which have their bearing- when considering the question of unjust discrimination. The claim of one community that it is subjected to an unlawful disadvantage in rates therefrom to the advantage of a competing community is frequently sought to be met by proof that the complaining community enjo3's lower rates thereto than the inbound rates of the competing community. In the language of traffic experts, the total of the "in and out" rates shows equality. Objviously that "in" rates are low does not justify unlawful "out" rates. This situation was illustrated :n the several hearings and opinions which involved the claim of Shreveport, La., that her rates outbound into Texas were unlawful when contrasted with intrastate rates out bound from Texas points. In one of the opinions the Commission said :'^ "We are dealing here with outbound rates, and the reasonableness of such rates does not in any wise depend upon whether the articles tak- ing those rates were produced at the points of shipment or came to those points by wagon, boat, railroad, or otherwise." This language of the Commission states a correct principle, but the application of the principle must be limited to facts 29. Brook-Rauch Mill & Eleva- it was said: "A just equality of tor Co. V. Missouri Pac. Ry. Co., opportunity for shipper and lo- 17 I. C. C. 158, 1G4, citing Eichen- cality is required by law." A use- berg V. Southern Pac. Co., 14 I. ful note and a valuable general C. C. 250, which latter case was discussion of the subject appears approved by the Supreme Court in the Law Edition containing in Southern Pac. Terminal Co. v. the case of Manufacturers Ry. Int. Com. Com., 219 U. S. 498, Co. v. United States, 246 U. S. 55 L. Ed. aiO, 31 Sup. Ct. 279. 457, 62 L. Ed. 831, 38 Sup. Ct. 383. 30. Mobile Chamber of Com- 31. Railroad Com. of La. v. merce v. Mobile & O. R. Co., 23 Arkansas H. T. Ry. Co., 41 L C. L C. C. 417, 426. See Kaufman C. 83, 118, 119; Hutcheson Traffic Commercial Club v. T. N. O. R. Bureau v. C. R. I. & P. Ry. Co., Co., 31 I. C. C. 1B7, 171, where 43 I. C. C. 689, 693. 424 Equality in Rates. [§ 140 similar to those involved in the particular opinion. When the inbound and outbound rates constitute in substance a through rate; as where the carriers serving both communities are wholly or partly responsible for both inbound and outbound rates to both communities, a different question is presented. In such cases the unlawfulness of the discrimination can only be determined b^v a comprehensive consideration of both sets of inbound and outbound rates.^" § 140. Same Subject — Allovs^ances to Shippers. — Under the amendment of June 29, 1906, to the Act to Regulate Com- merce, the owner of property transported rendering services in connection with the transportation or furnishing an in- strumentality used therein is entitled to charge therefor.*' Such charge mast be stated in the published tariffs," rau&t not violate any of the sections of the Act requiring reason- able and non-discriminatory rates. Whenever allowances are made, being published in a tariff', are subject to complaint to the Commission and may be investigated by the Commission on its own initiative, and that tribunal may determine what allowance is legal and reasonable.'''" AA^hether or not the amount allowed is reasonable must, like all charges relating to transportation, be determined by the facts and circum- stances in each particular case having in view all relevant principles applicable to questions relating to the determina- tion of the reasonableness and validity of rates. It is equally true that whether or not a particular allowance unjustly dis- 32. St. Louis S. W. Ry. Co. v. 14 I. C. C. 619; Federal Sugar United States, 245 U. S. 136, 62 Refining Co. v. Baltimore & L. Ed. 199, 38 Sup. Ct. 49; Pardee O. R. Co., 20 I. C. C. 200; Balti- Works V. Central R. R. Co. of N. more & 0. R. Co. v. United States, J., 39 I. C. C. 162, 164. 200 Fed. 779, Opinion Com- 33. For statute see Sec. 404, merce Court No. 38, p. 499; 2)ost. United States v. B. & O. R. Co.. 34. American Sugar Refining 231 U. S. 274, 58 L. Ed. 218. 34 Co. V. Delaware, L. & W. Ry. Co., Sup. Ct. 75; Langdon v. Pennsyl- 200 Fed. 652. While there have viana R. Co., 194 Fed. 486, 496. been rulings on the subject of 35. Suffern Grain Co. v. Illinois this case not in accord with the Cent. R. Co., 22 I. C. C. 178. 183; general opinion on this point, the Union Pac. R. Co. v. Updike decision is correct. See Re Al- Grain Co., 222 U. S. 215, 218, 56 lowances for Transfer of Sugar, L. Ed. 171, 32 Sup. Ct. 39. § 141] Equality in Rates. 425 criminates against other shippers presents a question deter- minable from the particular facts applicable to the special case. The Commission may not, when the shipper is within the provisions of the statute, deny to him a proper allowance. The shipper who owns instrumentalities used in transporta- tion or who is in a position to render services in connection therewith, who receives compensation for his services or pay for the use of his instrumentalities, cannot be said to be un- fairly favored so long as the allowance or pay is not unrea- sonable and so long as others rendering like services or fur- nishing like instrumentalities are treated in the same way. Examples of allowances are, for compressing cotton,^* grain doors/' elevation of grain, ''^ staking cars,'"' lighterage," trans- portation by tap lines and industrial lines/^ The question will be treated more in detail in later sections of this chapteT where is discussed the question of whether or not the specifio service or instrumentality upon which the claim for allowance is based justifies any allowance. § 141. Trap Car Service. — The Commission has defined thiji service as follows:^" "The term trap or ferry, strictly speak- ing, is applied to a ear placed at an industry or commercial house having a private siding, and there loaded by a shipper with less-than-carload shipments, and hauled by a carrier to its local freight or transfer station for handling and for- warding of contents; and also is applied to a car loaded with 36. Merchants Cotton Compress 40. United States v. B. & 0. R. & Storage Co. v. Illinois Cent. R. Co., Federal Sugar Refining Co. Co., 17 I. C. C. 98; Anderson, Case., 231 U. S. 274, 58 L. Ed. Clayton & Co. v. Chicago, R. I. 218, 34 Sup. Ct. 75. See also & P. Ry. Co., 18 I. C. C. 340. Lighterage and Storage Regula- 37. Balfour, Guthrie & Co. v. tJons at New York, 35 I. C. C. 47. Oregon W. R. & N. Co., 21 I. C. 41. Louisiana & P. Ry. Co. v. C. 539. United States, 209 Fed. 244; Tap • 38. Union Pac. R. Co. v. Updike Line Cases, 234 U. S. 1, 58 L. Grain Co., 222 U. S. 215, 56 L. Ed. 1185, 34 Sup. Ct. 741; Indus- Ed. 171, 32 Sup. Ct. 39; Traffic trial Railways Case, 29 I. C. C. Bureau Merchants Exchange v. 212; Car Spotting Charges, 34 I. Chicago, B. & Q. R. Co., 22 I. C. C. 609. G. C. 496. 42. Trap or Ferry Car Service 39. Duluth Log Co. v. Minne- Charges, 34 I. C. C. 516. sota & I. R. Co., 15 I. C. C. 627. ■ir'26 Equality in Rates. [§ 142 less-than-earload shipments which is hauled to and placed npon the private track of an industry or commercial house by tlie carrier from a local freight or transfer station. Where such cars are loaded to a prescribed minimum, the practice of respondent has been to make no charge for the service. In the eastern part of the territory involved the name 'ferry' is given to a car used as above described, and in the Avestern part the name 'trap' is applied. The origin of the names is not clear. Both mean the same thing, and for con- venience the v^^ord trap will be hereinafter used." In the Five Per Cent Case" the Commission suggested that the carriers investigate special services being rendered by them with a view to eliminating those that were discrimina- tory and making proper charges for those which were legal. In Conference Euling 97. the Commission said: "The Com- mission condemns as unlawful a practice under which a car- rier provides an empty car at factory sidings in which the shipper may load less than-carload shipments which the car- rier then moves to its regular freight station, where the ship- ments are assorted and placed in other cars to be forwarded to their respective destinations. Such a practice is lawful only under definite and clear tariff authority, nondiscrimina- tory in terms and in its application." Ostensibly in compliance with the suggestion and the ruling of the Commission, but with a real desire that the practice be continued, tariffs were filed by the carriers in which charges were proposed for the trap car service. In the Trap Car Case supra, these tariffs were ordered canceled. The advantages from the service, both to the public and to the carriers, were shown, and it was held that the service when offered without undue preference or unjust discrimination, was not illegal. It is hardly open to successful contradiction that this service lessens the congestion which, without the service, would result to the carriers' terminal facilities. § 142. Peddle'r Cars. — In some parts of the United States the carriers have for many years maintained what has come to be called a peddler car service. This service has been defined in 32 I. C. C. 428 note 44, below as follows : 43. Five Per Cent Case, 31 I. v. P. Co., 39 I. C. C. 583, 584. C. C. 351, 408; "VVoolson Spice Co. § 142A] Kquality in Rates. 427 "The original arrangement permitted the sale from the ears, as peddlers from wagons, of fresh meats and packing- house products, but the growth of the business and economy of operation demanded that sales should be made prior to the shipment of the car, and that each package should b,e con- signed to a particular consignee. The cars move from the packing houses, usually on certain days of each week, and the loading depends on sales made in advance, generally by salesmen of the packers who canvass the territory served by the peddler-car routes. When a packer has orders for a sufficient tonnage he makes arrangements with the carrier for the shipment and loads at his packing plant a refrigerator car owned by him which is usually equipped with meat hooks and other necessary appliances. Each car contains on the average less than 100 consignments, which are loaded in station order. The car is then forwarded by fast freight to the first destination to which there is a consignment, after which it is handled as way freight and the various consign- ments arc unloaded by the carriers at the stations to which they are billed. * * * Tt appears that the service ren- dered by the respondents in connection with the peddler cars is generally not greater, and in some instances less, than the service which they render in connection with less-than-car- load traffic handled through their freight houses; that for the peddler-car service the user pays the regular less-than- carload rates, guarantees the carriers a minimum per-car earning, saves the carrier the expense of refrigeration, re- duces loss and damage claims, and gives to the carrier a volume of traffic which could not be satisfactorily transported in its own equipment." Such a service when performed Avithout discrimination is not illegal.'* § 142 A. Private Cars. — Eailway equipment has never been adequate to meet the demands of shippers, like meat packers 44. Investigation of Alleged House Products, 3.6 I. C. C. 62: Unreasonable Rates on Meats, 23 Eastern Live Stock Case, 36 I. I. C. C. 656; Rules Governing C. C. 675: Peddler Car Minimum. Shipments of Freight in Peddler 43 I. C. C. 139; Swift & Co. v. P. Cars, 32 I. C. C. 428; Rates and C. C. & St. L. Ry. Co., 48 I. C. C. Rules on Shipments of Packing 525. 428 Equality in Rates. [§ 142 A and oil distributors, who need special kinds of cars in which properly to distribute their commodities. Private cars were in use at the tim.e of the adoption in 1887 of the original Commerce Act ;''' and in one of the earliest eases decided by the Commission it was held that the carriers should not allow their "own deficiencies in the particular (lack of proper cars) to be made the means of putting at an unreasonable dis- advantage those who make use in the same traffic of the same facilities" supplied by the carriers." The Commission made an exhaustive investigation of the use of private cars and the practices adopted in such use. It was held in an opinion based on such investigation that there were benefits to the public in the use of such cars and that while such use "has undoubtedly bieen of benefit to carriers, it has been of incalculable benefit to shippers as well."'" The facts on which the Commission acted were principally those furnished by large shippers, owners of private cars, and the carriers. The carriers have always shown deference to these large shippers and are not over zeal- ous in presenting facts in opposition to the wishes of shippers who control an immense volume of traffic. Carriers should by pooling their cars or by other means supply suitable cars for all kinds of traffic. The private car owner has an advantage not open to all and "a privilege which, although ostensibly open to the whole public, can in the nature of things, only be taken advantage of by certain shippers, creates thereby a discrimination which may or may not be undue, according to the circumstances in each case."*^ The danger to the general public from permitting shippers to own their own cars has caused considerable discussion in the Congress : and in the Transportation Act 1920 the defini- 4.5. Scofield v. Lake S. & M. 48. Traffic Bureau (St. Louis) S. R. Co., 2 I. C. C. 90. 2 I. C. v. C. B. & Q. R. Co., 14 I. C. C. R. 67; United States v. P. R. Co., 317. The National Association of 242 U. S. 208, 61 L. Ed. 251, 37 Railway Commissions gave views Sup. Ct. 95. similar to those in the text. Proc- 46. Rice v. Louisville & N. R. ter & Gamble Co. v. C. H. & D. Co., 1 I. C. C. 722. Ry. Co., 19 I. C. C. 556, 558, 559, 47. Matter of Private Cars, 560. 50 I. C. C. 652, 672, 678. § 143] E-QUALiTY IN Rates. ' 429 tion of transportation was enlarged to include provisions relating to car service and ear distribution.'" 5 143. Car Spotting-. — Similar in principle to the trap car service is wiiat has l)ecn called car spotting which is defined:^'' '' 'Spotting' service is the service beyond a reasonably con- venient point of interchange lietween road haul or connecting carriers and industrial plant tracks, and includes: (a) One placement of a loaded car which the road haul or connecting carrier has transported, or (b) The taking out of a loaded car from a particular location in the plant for transportation by road haul or connecting carrier, (c) The handling of the empty car in the reverse direction." While the shipper where sliipments are delivered at his plant or warehouse saves drayage, the carrier who makes the delivery is not using its terminals and the advantage is mutual. It is therefore a service which is not illegal per se and only becomes illegal when granted to one and refused to another under circumstances which cause that discrimination prohibited by law.^^ § ]44. Undue Preferences in Favor of Persons or Loca»lities. — Section three of the Act to Regulate Commerce we have seen is substantially the same as section two of English Rail- way and Canal Traffic Act of 1854.^". This section is broader than section two of the English Act and prohibits undue or unreasonable preference. The words "undue" and "unrea- sonable" in the section show 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 dis- cusses English eases in the Party Rate Case,''' and also con- 49. Section 344A, post. Case, 234 U. S. 294, 58 L. Ed. 50. Car Spotting Cliarges, 34 I. 1319, 34 Sup. Ct. 814; Atchison, C. C. 609, 614; Alan Wood Iron T. & S. F. Ry. Co. v. U. S., 232 & Steel Co. V. P. R. Co., 22 I. C. U. S. 199, 58 L. Ed. 568; 34 Sup. C. 540. Ct. 291; Iowa & S. W. Ry. Co. 51. General Elec. v. N. Y. C. v. C, B. & Q. R. Co., 32 I. C. & H. R. Co., 14 I. C. C. 237; Los C. 172. Angeles Case, 18 I. C, C. 310; 52. Sec. 135. infra. Order sustained by Supreme 53. Int. Com. Com. v. Balt!- Court, Los Angeles Switching more & 0. R. Co., 145 U. S. 263. 36 430 Equality in Rates. [§ 144 striies both sections two and three. The Supreme Court in the case referred to refuse to enforce an order of the Com- mission and held that a party of ten or more could be legally carried on one ticket at a less rate for each individual than was charged for one person. In the course of the opinion Mr. Justice Brown said : "In order to constitute an unjust discrimination under section 2, the carrier must charge or receive directly from one person a greater or less compensation than from another, or must accomplish the same thing indirectly by means of a special rate, rebate or other device ; but, in either case, it must be for a 'like and contemporaneous service in the trans- portation 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 persons on a single ticket is substantially identical with the transportation of one, and, in view of the universally accepted fact that a man may but, contract, or manufacture on a large scale cheaper proportionately than upon a small scale, this is impossible. ' "In this connection we quote wnth approval from the opin- ion of Judge Jackson in the court below: 'To come within the inhibition of said sections (2 and 3), the differences must be made under like conditions; that is, there must be contem- poraneous service in the transportation of like kinds of traffic under substantially the same circumstances and conditions. In respect to passenger traffic, the positions of the respective persons, or classes, between wdiom differences in charges are made, must be compared with each other, and there must be found to exist substantial identity of situation and of serv- ice, accompanied by irregularity and partiality resulting in undue advantage to one, or undue advantage 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 Comraierce Act, that *no such company shall make or give any undue or unreasonable prefer- ence or advantage to or in favor of any particular person or company ; or any particular description of traffic, in any re- spect whatsoever, nor shall any such company subject any y)articular person or, company, or any particular description § 144] Equality in Rates. 431 of traffic, to any undue or unreasonable prejudice, or disad- vantage in any respect whatsoever.' "In Hozier v. Caledonian R. Co., 17 Sess. Cas. 303, 1 Nev. & McN. R. Cas. 27, complaint was made by one who had fre- quent occasion to travel, that passengers from an intermediate station between Glasgow and Edinburgh were charged much greater rates to those places than were charged to other througli passengers 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 coni- l^laint being that he did not choose that parties traveling from Edinburgh to Glascow should enjoy the benefit of a cheaper rate of travel than he himself 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 Lon- don, upon the same terms as they issued them between Har- wick and London, upon the mere suggestion that the granting of the latter, the distance being considerably greater, at a much lower rate than the former, was an .undue and uiu'eason- able preference of the inhabitants of Harwick over those of Colchester. Upon the other hand, in Ransome v. Eastern Counties R. Co., 1 C. B. N. S. 437, where 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 mer- chants, 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 com- pete with the Ipswich merchant, the court granted an injunc- tion upon the ground of an undue preference to the Peterboro merchants, the object of the discrimination being to benefit the one dealer at the expense of the other, by depriving the latter of the natural advantages of his position. In Oxlade 432 Equality in Rates. [§ 144 V. Northeastern R. Co., 1 C. B. N. S. 454, 26 L. J. C. P. 129, 1 N. & IMac. 72, a railway company was lield .instified 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 bie 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 district was not a legitimate ground for making spec- ial agreements with diiferent merchants 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 com- pany were affected ; and that this was an undue preference. "In short, the substance of all these decisions is that rail- way companies are only bound to give the same terms to all persons alike under 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 comprehen- sive 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,' is 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 intended to incorpor- ate them into the statute. McDonald v. Harvey, 110 U. S. 619 (28 L. Ed. 269, 4 Sup. Ct. 142)." In the same case Circuit Judge Jackson, afterwards Mr. Justice Jackson, said:'* "In passing upon the question of undue or unreasonable preference or disadvantage, it is not only legitimate, but proper, to take into consideration, be- sides the mere differences in charges, various elements, such as the convenience of the public, the fair interest of the carrier, the relative quantities or volume of the traffic in- volved, the relative cost of the services and profit to the L. Ed. 699. 705, 12 Sup. Ct. 844, was applied in Gallaway Coal 4 I. C. R. 92. Co., V. A. G. S. R. Co., 40 I. C. 54. Int. Com. Com. v. Baltimore C. 311, 320; Nashville Switching, & 0. R. Co., 4.3. Fed. 37, 53, 54, 40 I. C. C. 474, 482. 3 I. C. R. 192; This principle § 145] Kquality in Rates. 433 company and the situation and circumstances of the respec- tive customers with reference to each other, as competitive or otherAvise." § 145. Same Subject — Application of Section Made by the Commission. — There have been a great many cases in which the Interstate Commerce Commission has applied section 3 of the Commerce Act. A clear and fair reading of the law, says the Commission, "is one which credits Congress with the intention of stopping all undue discrimination by inter- state carriers. It may be said without exaggeration that it is the paramount duty of interstate carriers under this Act to avoid discrimination. ' ' " The law is not satisfied because a rate may not be unrea- sonably high, for, as said by the Commission: "A community is entitled to something more than a reason- able rate ; it is entitled to a nondiscriminatory rate. The carrier may not say, 'We will give to this community a rea- sonable rate' and meet the full requirements of the law; it must view its rates as a whole and see to it that they affect no advantage or preference to one community over another which does not arise necessarily out of the transportation advantages which the one has over the other. "^'' The prohibitions of the section apply to all the carrier's duties and obligations, to facilities and to through routes, for, as said by the Supreme Court and quoted by the Commission, the carrier "is bound to deal fairly with the public, to ex- tend them reasonable facilities for the transportation of their persons and property, and to put all its patrons upon an absolute equality."" Nor does the fact, that removing unjust discrimination 55. R. R. Com. of La. v. St. 366, quoted with approval in To- Louls S. W. Ry. Co., 23 I. C. C. peka Traffic Assn. v. Alabama & 31, 41 (Shreveport Case); order V. Ry. Co., 27 I. C. C. 428, 436. sustained by the Supreme Court, 57. Union Pac. R. Co. v. Good- Houston E. & W. T. R. Co. V. ridge, 149 U. 3. 680, 37 L. Ed. United States, 234 U. S. 342, 58 896, 13 Sup. Ct. 970, 'quoted in L. Ed. 1341, 34 Sup. Ct. 833. Re Wichita Falls System Joint 56. R. R. Com. of Nevada v. Coal Rates, 26 I. C. C. 215, 223. Southern Pac. Co., 21 I. C. C. 329, 434 Equality in Rates. [§ 145 may reduce revenues, constitute an answer to the claim for "fair play."'^ "Nor is it the view of the Commission that a carrier cannot be held to discriminate against a community or territory which it does not reach by its own rails. If it participates in a joint rate from the territory affected and is in such position that it may either join in such rates or decline to do so, it is then liable for the discrimination w^hich may result from its action in joining with the other carriers in the discriminatory rate or regulation."" The Commission formerly had no power to compel car- riers to increase rates, so when there was discrimination in rates between two communities, unless the carrier removed such discrimination the high rate must have been reduced.*" Under Transportation Act 1920 the Commission is empowered to prescribe minimum rates. Whether or not a preference or advantage is undue or unreasonable within the meaning of the section is "primarily for the investigation and determina- tion of the Interstate Commerce Commission and not for the Courts. The dominating purpose of the Statute was to secure conformity to the prescribed standards through the examination and appreciation of the complex facts of trans- portation by the body created for that purpose."*^ 58. Cardiff Coal Co. v. Chicago, Products, 23 I. C. C. 652, 655; M. & St. P. Ry. Co., 13 I. C. C. Scott Paper Co. v. Pennsylvania 460, 467. R. Co., 26 I. C. C. 601, 603. 59. Partridge & Sons v. Pennsyl- 61. Simpson v. Shepard, 23.0 U. vania R. Co., 26 I. C. C. 484, 486, S. 352, 57 L. Ed. 1511, 33 Sup. Ct. 487 citing: Indiana Steel & Wire 729, citing Texas & P. R. Co. v. Co. V. Chicago, R. I. & P. Ry. Abilene Cotton Oil Co., 204 U. Co., 16 I. C. C. 155; Southern S. 426, 51 L. Ed. 553, 27 Sup. Ct. Furniture Mnfrs. Assn. v. South- 350, 9 Ann. Cas. 1075; Baltimore em Ry. Co., 25 I. C. C. 379; & O. R. Co. v. United States, 215 Rates from the Walsenberg Coal U. S. 481. 54 L. Ed. 292, 30 Sup. Field, 26 I. C. C. 85. See also Ct. 164; Robinson v. Baltimore & Chamber of Commerce of Ash- O. R. Co., 222 U. S. 506, 56 L. burn, Ga., v. Georgia, S. & F. R. Ed. 288, 32 Sup. Ct. 114; United Co., 23 I. C. C. 140, and a sum- States v. Pac. & A. R. N. Co., mary of Commission cases cited 228 U. S. 87, 57 L. Ed. 742, 33 pp. 148, 149, 150. Sup. Ct. 443. Disadvantages un- 60. Rates Transportation of connected with transportation Fresh Meats & Packin.g House should not be equalized by rates. § 145A] E-QUALiTv IN Rates. 435 § 145A. Differentials. — A rate differential is a fixed dif- ference in rates, so that as one rate is changed the other is similarly changed, thus maintaining the original difference. There are many rates dift'erentially related. Where the dif- ference is just, existing differentials are always sustained by the Commission. Differentials that are unr'easonable are changed to make them reasonable. °' Where independent car- riers served a common market dift'erential adjustments, re- moving unlawful discrimination, could not be prescribed by the Commission prior to the Amendment of 1920," but now the Commission may initiate both minimum and maximum rates. § 146. Discrimination against Traffic. — ^The section prohib- its "any undue or unreasonable preference or advantage to * * * any particular description of traffic." In discussing classification, section 81 supra, it has been shown that different comnijOdities have been classified or given a special commodity rating. The necessity and pro- priety of this is there shown. When, however, a particular "description of traffic" is classified, it must be without undue or unreasonable preference. In determining the reasonableness of rates, comparisons may be made between commodities of like weight, bulk, value, etc., regardless of whether or not those commodities come in competition the one with the other. § 146A. Same Subject — Competition Between Users of Re- lated Rates. — In determining whether or not particular de- scriptions of traffic are so related by the carrier as to violate the provisions quoted herein, it is material to determine whe- ther or not the different commodities in any waj^ compete. This principle has been applied by the Commission. As early as 1892 the Commission said:"* "In the absence of some com^ peting relation between different articles of traffic, there would Anson, Gilkey & Hurd Co. v. S. C. 224, 236. P. Co., 33 I. C. C. 332; Milling 63. Gallaway Coal Co. v. A. O. Logs In Transit, 40 I. C. C. 597, S. R. Co., 40 I. C. C. 311, 315, and 600. cases cited. 62. Memphis Freight Bureau v. 64. Rice v. C. W. & B. R. Co., St. L. I. M. & S. Ry. Co., 39 I. C. 3 I. C. R. 841, 849, 5 I. C. C. 193. 436 Equality in Rates. [§ 146 A seem to be no opportunity, by means solely of the rates im- l)0se(l npon them respectively, for that unjust discrimination ■which the law forbids. Disadvantage to the shipper of one product can hardly be predicated upon the charges for trans- porting another product, differing essentially in character from the former and widely dissimilar in the demands which it supplies. In such cases the rates themselves are insufficient to convict the carrier of discrimination. The amount actually charged on one commodity may, however, be of great import- ance in determining whether the charge on another com- modity is reasonable or otherwise, especially when both have numerous points of resemblance in respect to the cost and hazard of transportation." The United States Circuit Court, the English Court and the Supreme Court as shown in the Party Rate Case, Section 144, supra, all recognized that without competition unlawful dis- crimination could not exist. Illustrative of other applications of the principle are : Wall plaster and cement were sought to be compared, and it was said: "It is admitted that a charge of undue discrimination may not be predicated on the lower cement rates, because the commodities are not competitive."*'^ In denying relief where competition between localities was alleged, the Com- mission said: "It does not appear that there is such a com- petitive relation between Baton Rouge and New Orleans in respect of the commodity in question that different rates to these points are prima facie unlawful. ' '*' Between the rates on wheat and coarse grain, which are "competitive in no practical sense,""' and between rates on poles and lumber,"* there can be no undue or unlawful prefer- ence because of lack of competition. 65. Acme Cement Plaster Co. v. Bureau v. St. L. I. M. & S. Ry. Lake Shore & M. S. Ry. Co., 17 Co., 43 I. C C. 224, 226; Laundry- I. C. C. 30, 36. men's Nat'l. Assn. v. Adams Ex- 66. Southern P.itnlithic Co. v. press Co., 45 I. C. C. 361. 362 (laun- Illinois C. R. Co., 17 I. C. C. 300. dry & bread); Kansas City & M. 67. Board of Trade of Chicago Ry. Co. v. St. L. & S. F. R. Co., V. Chicago & A. 11. Co., 27 I. C. C. 46 I. C. C. 464, 465. The general 530, 535. question was interestingly dis- 68. California Pole & Piling Co. cussed by Henry Hull, Case & V. Southern Pac. Co., 27 I. C. C. Comment, April 1918. 670; See also Texarkana Freight § 147] E'QUALriTY IN Rates. 43? § 147. Same Subject — Discrimination beyond the Control of the Carrier. — On this subjec-t the Supreine Court has said -."^ "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 volun- tary and wrongful act of the carriers complained of as hav- ing given undue preference, and does not relate to acts the result of conditions wholly beyond the control of such car- riers."'" Many past discriminations have been defended on the gro^*nd that the particular carrier complained against could not remedy the situation; the claim being made that the conditions had grown up and existed without the aid and con- trary to the wishes of the carrier. Such a claim cannot, however, be successfully maintained to prevent the establishment of joint rates, through combina- tion rates having been voluntarily established.'^ Controlling competition may justify a rate situation which would be otherwise unlawful.'" The "test of the discrin-onation is the ability of one of the carriers * * * to put an end to the discrimination by its own act."" Length of time tliat an unreasonable preference has existed will not justify it. Judge Taft, in East Tenn., Va. & Ga. Ry. Co. V. Int. Com. Com., note 70 siipra, said : "We are X)ressed 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 to^vTis to the south and west of her, shown in the diagram ; and that her rates have 69. East Tenn. Va. & Ga. Ry. Co. L. Ed. 199, 38 Sup. Ct. 49. V. Int. Com. Com., 181 U. S. 1, 72. Eastern Shore, etc. Produce 18, 45 L. Ed. 719, 725, 21 Sup. Ct. Exchange v. N. Y P. & N. R. Co., 516. 40 I. C. C. 328, 334 and cases 70. East Tenn., Va. & Ga. Ry. cited. Co. V. Int. Com. Com., 99 Fed. 73. Ashland Fire Brick Co. v. 52, 63, 39 C. C. A. 413, 425. See S. Ry. Co., 22 I. C. C. 115; Traffic also Board of Trade of Chicago Bureau, Toledo v. C. H. & D. Ry. V. Chicago & A. R. Co., 4 I. C. C. Co., 4a I. C. C. 446, 456; Com- 158. 3 I. C. R. 233. mercial Club of Mitchell v. A. & 71. St. Louis & S. W. Ry. Co. v. W. Ry. Co., 48 I. C. C. 40, 43. United States, 245 U. S. 136, 62 438 Equality in Eates. [§ 148 been the key to the southern situation. The length of time which an abuse has continued does not justify it. It was because time had not corrected 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 circumstances 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 are shipper seemingly discriminated against by this lower competive traffic, really subjected to unjust and unreasonable discrimination or preference. If this cheaper rate traffic pays any profit, it, to that extent, increases the revenues of the carrier and enables it better to perform its public duties. As said by AV. B. Dabney (The Public Regulations of Railways, ]11, 113) : ''Discrimination which produces no injury cannot be considered unjust ; if it can be shown that discrimination may in certain cases be actually beneficial to the community apparently discriminated against, it should, instead of being denounced, be encouraged. 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, cannot use these arguments to do more than meet the situations presented by the circum- stances and conditions, and any discrimination in excess of that required by the different conditions is unjust and unrea- sonable.^* § 148. Facilities for Inter chang-e of Traffic and Rates and Charges to Connecting' Lines Must be Without Undue or Un- reasonable Preference. — Prior to the Interstate Commerce Act a carrier was not compelled to form a business connection with another carrier and was not compelled to "afford all reason- able, 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 74. As to competetion see Ante made by a state, Sec. 44 ante. Section 146a, post, Sec. 201. Rates 75. Atchison, T. & S. F. Ry. Co. § 148] E'QUAi^iTY IN Rates. 439 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 apears from the evidence^ that it was the custom of connecting lines to make arrange- ments 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 inter- change of business 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 con- necting 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. Oftentimes new roads, opening up new points, are 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 busi- ness over the line in such a way as the law allows to others that have no special contract interest in the line itself. The manner in which its business must be done bj^ the line will depend not alone on the connection 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 re- quires one of the component companies of a connecting through line to grant to a competitor of any of the other com- panies the same privileges that are accorded to its associates, simply because the tracks of the competiting company unite with its own and admit of a free and convenient interchange of business. The line is made up by the contracting 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 con- nection with it than such as belong to the public at large, un- less special provision is made therefor by the legislature or the contractii^g companies." The decree entered by the trial court had fixed in detail, rules and regulations for the working of the Atchison, Topeka and Santa Fe and Denver and New Orleans roads, in connec- tion with each other as a connecting through line and, in 440 Equality in Rates. [§ 148 effect, required the Atchison, Topeka and Santa Fe Company to place the Denver and New Orleans Company on an equal footing as to the interchange 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 baggage, through tickets and, perhaps, the compulsory interchange of cars. The Supreme Court goes somewhat at length into the his- tory of state legislation with reference to connections between carriers 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 connec- tions without discrimination "can only be obtained from the legislative branch of the government." The court then dis- cussed the "undue preference cluase" of the English Railway and Canal Traffic Act of 1854 and said : "Were there such a statute in Colorado, this case would come before us in a different aspect. As it is, we know of no power in the judiciary to do what the Parliament of Great Britian has done and what the proper legislative authority ought perhaps to do, for the relief of the parties to this con- troversy. "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 discrimination. 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 court of equity to stop at another railroad junction and inter- change business, or that it must under all circumstances give one connecting road the same facilities and the same rates that it does to another with which it has entered into a special con- tract relations for a continuous tlirough line and arrange facilities accordingly. 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 Avas reversed, with instruc- tions to dismiss the bill without prejudice. This case was de- cided in 1883, and clearly points out the evils sought to be § 148] Equality in Rates. 441 remedied by this section of the Act to Regulate Commerce. In Wisconsin, M. & P. R. Co. v. Jacobson/' the Supreme Court had before it a case from the Supreme Court of Minnesota to review the judgment of that court affirming the judgment of the district court, directing the plaintiff in error and the Will- mar & Sioux Falls Railway Company to make track connec- tions with eaeli otlier at Hanley Falls, in the state of Minne- sota, where their respective tracts intersected. The judgment of the state court declared as follows : "That it is the duty of the defendants, the Wisconsin, Minnesota & Pacific Railroad Company and the Willmar & Sioux Falls Railway Company, and they should be and are required to forthwith 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 re- gular 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, equal and reasonable facilities for the interchange of cars and traffic between their respective lines, and for the receiving, for- warding, and delivering property and cars to and from their respective lines." The court discussed 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 sub- stance of its opinion affirming that of the state Supreme court is contained in two paragraphs of the opinion, as f oIIoavs : "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, unduly, 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." V. Denver & N. 0. R. Co., 110 76. Wisconsin M. & P. R. Co. v. U. S. 667, 28 L. Ed. 291, 4 Sup. Jacobson. 179 U. S. 287, 45 L. Ed. Ct. 185. 194, 21 Sup. Ct. 115. 442 Equality in Rates. [§ 149 § 149. Same Subject — Statute. — The second paragraph of section three of the Act to Regulate Commerce," as orignally enacted, required common carriers subject to the act to aflford reasonable, proper and equal facilities for the interchange of traffic and prohibited discrimination in the rates and charges of connecting lines, but did not require them to give the use of tlieir tracks or terminal facilities to another carrier en- gaged in like business. This provision of the law did not apply where the circumstances and conditions were dissimi- lar." As to its tracks and terminal facilities, a common car- rier was under the former law left free to allow their use by one or more connecting lines to the exclusion of others;^* but as will be seen in a subsequent section, this right of selection has been limited by subsequent enactments and decisions. 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 own line.^" This power to require the establishment of through routes and joint rates has been given to the Commission by sections one and fifteen of the Act as amended by the Act of June 29, 1906. The owner of a private wharf, however, cannot be compelled ex- cept by condemnation and upon compensation being made for the taking of the property, to allow its use by others." Since the Amendment of 1906 it has been the duty of each carrier subject to the Act to Regulate Commerce to '*hold it- 77. Sec. 347. post. R. Co., 110 U. S. 667, 28 L. Ed. 78. Kentucky & I. Bridge Co. v. 291, 4 Sup. Ct. 185; Gulf, C. & Louisville & N. R. Co., 37 Fed. S. F. Ry. Co. v. Miami S. S. 567, 624, 2 L. R. A. 289, 2 L C. Co., 86 Fed. 407. 30 C. C. A. 142. R. 351; New York & N. Ry. Co. 80. Kentucky & I. Bridge Co. v. V. New York & N. E. Ry. Co., Louisville & N. R. Co.. 37 Fed. 50 Fed. 867. 567, 630; Prescott & A. C. R. Co. 79. Little Rock & M. Ry. Co. v. v. Atchison, T. & S. F. R. Co., St. Louis, I. M. & S. Ry. Co., 59 73 Fed. 438. Fed. 400. Affirmed. 63 Fed. 775, 81. Louisville & N. R. Co. v. 11 C. C. A. 417, 26 L. R. A. West Coast Naval Stores Co., 192. Oregon S. L. & U. N. Co. 198 U. S. 483, 49 L. Ed. 1135, 25 V. Northern Pac. R. Co., 51 Fed. Sup. Ct. 745; Weems Steamboat 465. Affirmed. 61 Fed. 158, 9 Co. v. People's Co., 214 U. S. C. C. A. 409; Atchison, T. & S. 345, 53 L. Ed. 1024, 29 Sup. Ct. F. Ry. Co. V. Denver & N. O. 661. § 150] E-QUALiTY IN Rates. 443 self impartial as between shippers and give to each one equal terminal facilities and service.'"' It is not illegal for a car- rier to give an exclusive privilege to a public auctioneer to conduct auctions.*" § 150. Same Subject — Statute and Proviso. — Section three of the Act to Eegulate Commerce, prior to Transportation Act 1920 provided: "But this shall not l)e construed as requiring any such com- mon carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business." In discussing this proviso, the Commission held, that where carriers allowed the "use of their tracks, or terminal facilities, the proviso of section 3 can have no application;" and in the further course of the opinion in the same case it was said: "Terminals are either open or they are not; and if a carrier holds itself out as ready to permit the use of its tracks at a certain charge, the fact that such charge may be prohibitive does not mean that the terminals are not open. On the con- trary, it would seem to be a potent argument for the reduc- tion of charges for the use of tracks or terminal facilities al- ready extended." And, said the Commission, concluding the argument : "It follows, that having elected to perform this service, the charge therefor mast be reasonable."** This section to this point and the two next preceding sec- tions discuss the law prior to the Amendment of 1920. By that amendment, paragraph 2 of section 3 of the original Act was 82. Enterprise Fuel Co. v. Penn- followed in St. Louis S. & P. R. sylvania R. Co., 16 I. C. C. 219. Co. v. Peoria & P. U. R. Co., 26 224; Baltimore Butchers Abat- I. C. C. 226, 236, 237; Penn. Co. v. toir & Live Stock Co. v. Phila- United States, 236 U. S. 351, 59 delphia, B. & W. R. Co., 20 I. L. Ed. 616, 35 Sup. Ct. Rep. 370: C. C. 124, 128; Buffalo Union affirming same styled case, 214 P'urnace Co. v. Lake Shore & M. Fed. 445; Louisville & N. R. Co. S. Ry. Co., 21 I. C. C. 620. v. United States 238 U. S. 1, 83. Southwestern Produce Dis- 59 L. Ed. 1177, 35 Sup. Ct. 696. tributers v. Wabash R. Co., 20 I. "Grazing but not hitting," so says C. C. 458. Mr. Justice Holmes, the question 84. Merchants & Mnfrs. Assn. in Louisville & X. R. Co. v.United V. Pennsylvania R. Co., 23 I. C. States, 242 U. S. GO, 61 L. Ed. 153, C. 474, 476. The principle was 37 Sup. Ct. 61. 4-14 Equality in Rates. [§ 151 changed for the first time. The Amendment authorizes the Commission to do what the Supreme Court in the Nashville Switching Case, 242 U. S. 60, held that it could not do under the law then in force. The cases cited in those sections, not excepting the Nashville Switching Case, show a strong proba- bility that the Supreme Court will sustain the validity of the 1920 Amendment requiring the joint use of terminals.*" § 151. Through Routes and Joint Rates. — The statutory dutj' of the carriers to establish and maintain through routes and joint rates, together with the statutory power of the Com- mission in respect thereto, will be discussed in another connec- tion.*" The question of discrimination is the subject of this section. Mr. Commissioner Lane, in an opinion of the Commission dealing with the question, asked: "What is the duty of the carriers with respect to the operation of through routes?" And he also asks: "What power has been vested in the Com- mission to enforce the requirements of the law?" Answering the first question he said : "There can be little doubt as to the duty of the carriers un- der the present act. The commerce of the country is regarded as national, not local, and the railroads are required to serve the routes which they have established, or which they have been required to establish." The statute is then quoted, and analyzed and in further answer to the first question, the opin- ion proceeds: "Reading these provisions together, there can be no doubt as to the intent of Congress- Our railroads are called upon to unite themselves that they will constitute one national system : they must establish through routes, keep these routes open and in operation, furnish the necessary facilities for transportation, make reasonable and proper rules of prac- tice as between themselves and the shippers, and as between each other. The full burden of this great obligation is in the first instance cast upon the carriers themselves." As to the second question, it was there said : "The law's requirements as to the duty of the carrier to 85. For amendment see Sec. 245 U. S. 136, 6.? L. Ed. 199, 38 347, i)ost. Compare St. Louis Sup. Ct. 49. S. W. R. Co. V. United States 86. post, sec. 195. § 152] E-QUALiTY IN Rates. 445 the shipper to furnish equipment and maintain its through routes carries with it necessarily the power on the part of the Commission to enforce rules which will permit the free inter- change of traffic as between carriers. The carriers must keep their through routes open, and if they fail to do this because of the diversion or appropriation of cars this Commission has it within its power to prescribe the conditions upon which such through routes shall be operated."" The duty exists to maintain through routes without undue discrimination and, should the carriers fail in the performance of that duty, the Commission has power to enforce it." In pursuance of this power, aided by the additional power granted in the Panama Canal Act,*" the Commission has held that it could enforce through routes with a water carrier."" § 152. Discrimination by Charging- More for a Shorter Than a Longer Haul — Old Law. — Section four of the Act to 87. Missouri & Illinois Coal Co. V. Illinois C. R. Co., 22 I. C. C. 39, 44, 45, 46, 49. ■ 88. Re Coal Rates on Stony Fork Branch, 2fi I. C. C. 168; St. Louis, S. & P. R. Co. V. Peoria & P. U. Ry. Co.. 26 I. C. C. 226. 89. Post. Sec. 377. 90. Augusta & Savannah Steam- boat Co. V. Ocean Steamship Co., 26 I. C. C. 380; Decatur Nav. Co. V. L. & N. R. Co., 31 I. C. C. 281 and cases cited; Port Huron & D. S. S. Co. V. P. R. Co., 35 I. C. C. 475. In discussing this question the author hereof in a report to the Commission adopted by it in Baltimore & C. S. S. Co. V. A. C. L. R. R. Co., 49 I. C. C. 176, 180 said: "Regardless of what the defendants have done in making rates into the southeast, they are under a duty to make reasonable proportional rates to and from ports reached by them, and their defense in this case is based upon conditions which Con- gress intended to change by the provision for proportional rates. Under defendants' system of rates there is a minimum of water haul and a maximum of rail haul. The full utilization of the water high- ways will tend to lessen car short- ages and will make cheaper the transportation cost of many com- modities of prime necessity. The rail carriers are entitled to a reasonable compensation for their haul between ports and interior points, but no more. Nor can the rail carriers by a refusal to publish proportional rates, or to join in through routes and joint rates, deprive interior points of the benefit of water transportation to and from the ports nearest to such points. That there are other reasonable water-and-rail routes furnishes no sufficient justification for a refusal to establish proport- ional rates which shall make a- vailable a route that will increase the water haul and lessen the rail haul, and thus decrease the cost of the total haul." 446 Equality in Rates. [§ 152 Eegvilate Commerce as originally enacted, known as the long- and-short-haiil clause, prohibited carriers from charging or receiving a greater compensation from transportation of pas- sengers or '"like kind of property under substantially similar circumstances and conditions" for a shorter than for a longer distance over the same line, in the same direction, the shorter being included in the longer. The proviso of the section au- thorized the Commission, in special cases, after investigation, 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. 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 Commission in the proviso. The proceedings before the Commission in the case cited, snpra, are given at length in the Interstate Commerce Reports, vol. I. beginning at page 76. 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 was 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 w^hole of the local rate going to the state road, the shipment was not within the provisions of the Act to Regulate Commerce. This contention was held unsound, the court say- ing: "that when goods are shipped under a through bill of lading, from a point in one state to a point in another, and when such goods are received in transit by a state common carrier, under a conventional division of the charges, such car- rier must be deemed to have subjected its road to an arrange- ment for a continuous carriage or shipment within the mean- ing of the act to regulate commerce." Having held that the Georgia road was subject to the provision of the section, the court proceeded to define the power of the Commission, and to state the effect of its decision that the section had been vio- lated. The court said : 91. Int. Com. Com. v. Cincinnati, 184, 40 L. Ed. 93.^, 16 Sup. Ct. 700. N. 0. & T. P. Ry. Co., 162 U. S. § 153] E/QUALiTY IN Rates. 447 "Subject, then, as we hold the Georgia Railroad Company is, under the facts found, to the provisions of the act to regu- late commerce, in respect to its interstate freight, it follows, as we think, that it was within the jurisdiction of the Commis- sion to consider whether the said company, in charging a higher rate for a shorter than 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 between states, under 'substantially similar circum- stances and conditions.' ''We do not say that, under no circumstances and condi- tions, would it be lawful, when engaged in the transportation of foreign freight, for a carrier to charge more for a shorter than a longer distance on its own line ; but it is for the tri- bunal appointed to enforce the provisions of the statute, whether the Commission or the court, to consider whether the existing circumstances and conditions were or Avere not sub- stantially similar." § 153. Long- and Short Haul — Old Law Continued — Definite Construction. — 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 were substantially similar under section four of the act, although such competition was not a pertinent fact in considering discrimination under section two. It was there said by Mr. Justice Shiras : "We are unable to suppose that Congi-ess intended, by the 4th section and the proviso thereto, to forbid the common car- riers, in cases where circumstances and conditions are sub- stantially 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 de- cision of the Commission, if applied to, could not be reviewed by the courts. The provisions of section 16 of the act, which authorizes the court to 'proceed to hear and determine the matter speedily as a court of equity, and without the formal pleadings and proceedings applicable to ordinary suits in 92. Int. Com. Com. v. Alabama 414, 18 Sup. Ct. 45. M. R. Co., 168 U. S. 144, 42 L. Ed. 448 Equality in Rates. [§ 153 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 di- rect and prosecute in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to euable 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. This decision put it in the power of rail car- riers i^ractically to destroy the force of section four. If com- petition 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 obligation of the statute the carrier that serves both points. This result was clearly pointed out by Mr. Justice Harlan in his dissenting opinion, in language as follows : "I dissent from the opinion and judgment in this case. Taken in connection wnth 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 im- portant objects designed to be accomplished by the various enactments of Congress relating to Interstate Commerce. The Commission was established to protect the public against the improper practices of transportation companies engaged in commerce among the several states. It has been left, it is true, with power to make reports, and to issue protests. But it has been shorn, by judicial interpretation, of authority to do any thing of an effective character. 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 connnnnities 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 misappre- hend its scope and effect, proceeds upon the ground that rail- road companies, when competitors for interstate 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 asrainst inter- § 153] Equality in Rates. 449 mediate points. Under such an interpretation of the statutes in question, they may well be regarded as recognizing the au- thority of competing railroad companies engaged in interstate commerce — when their interests will be subserved thereby — to build up favored centers of population at the expense of the business of the country at large. I cannot believe that Con- gress intended any such result, nor do I think that its enact- ments, properly interpreted, would lead to such a result." It would seem that the dissenting opinion of Mr. Justice Harlan, supra, more nearly applied the legislative intent than that arrived at by the majority of the court. But it should be remembered that, as has been said by the Supreme Court, the act to regulate commerce was experimental, and its purpose was not to prevent, l)ut promote, competition. Competition of markets is a force that carriers cannot disregard, it affects all transportation to a greater or less extent. As said by Arthur T. Iladley, Railroad Transportation, p. 65: "The wheat of Dakota, the wheat of Russia, and the wheat of India come into direct competition. The supply at Odessa is an element in de- termining the price at Chicago. * * * Cabbages from Germany contend with cabbages from Missouri in the markets of New York." Nor does this lower rate to the competitive point injure the non-competitive point, so long as there is any profit in the competitive rate. This point is clearly pointed out in the LaGrange case'"' The higher rate for the local haul is sometimes necessary in order that a community may have railroad transportation. To quote again from Hadley's Rail- road Transportation, at p. 115 : "Suppose it is a question whether a road can be bluilt 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 busi- ness at intermediate points is so small that this alone cannot 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 93. Int. Com. Com. v. Louisville & N. R. Co., 190 U. S. 273, 47 L. 450 Equality in Rates. [§ 154 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 community 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 physi- cal line, not a mere business arrangement."^ § 154. Long and Short Haul Clause under Act 1910. — Con- gress in 1910 for the first time since the passage of the Act to Regulate Commerce, amended the so-called Long and Short Haul Clause of the Act (Sec. 4). The Amendment struck out the words of the former law "under substantially similar cir- cumstances and conditions," but gave the Commission power, upon application and after investigation, to grant relief from the operation of the section as amended."^ Construing the Amended Act the Commission held it consti- tutional ; held that its provisions granted the Commission power to determine how far relief should be extended, power to determine whether or not a wrong resulted from a particu- lar application of rates and power to correct that wrong if found to exist. The history of the old and the new law was given and the conclusion reached that, while in determining what Ed. 1047, 23 Sup. Ct. 687. U. S. 633, 42 L. Ed. 306, 17 Sup. 94. Spartanburg Board of Trade Ct. 986; Louisville & N. R. Co. V Richmond & D. R. Co., 2 I. v. Behlmer, 175 U. S. 648, 44 L. C. C. 304, 2 I. C. R. 193. Ed. 309, 20 Sup. Ct. 209; East 95. Boston & A. R. Co. v. Boston Tenn., Va. & Ga. Ry. Co. v. Int. & L. R. Co., 1 I. C. C. 158, 1 Com. Com., 181 U. S. 1, 45 L. I. C. R. 500, 571; Daniels v. Ed. 719, 21 Sup. Ct. 516. Se© Chicago, R. I. & P. R. Co., 6 I. also Int. Com. Com. v. Clyde C. C. 458, 476. For other cases S. S. Co., 181 U. S. 29, 45 L. Ed. discussing the subject see: Rail- 729, 21 Sup. Ct. 512; Brewer v. road Com. of Georgia, Trammel! Central of Ga. R. Co., 84 Fed. et al. V. Clyde S. S. Co., 5 I. C. 258; Int. Com. Com. v. Western C. 324, 4 I. C. R. 120, 150; Tex. & A. R. Co., 88 Fed. 186. & P. Ry. Co. V. Int. Com. Com., 96. Sec. 348, post. Also old and 162 U. S. 197, 40 L. Ed. 940, 16 new law contrasted, Atchison, T. Sup. Ct. 666; Parsons v. Chi- & S. F. Ry. Co. v. United States, cago & N. W. Ry. Co., 167 U. 191 Fed. 856, 857. and Railroad S. 447, 42 L. Ed. 231, 17 Sup. Com. of Nev. v. So. Pac Co., 21 Ct. 887; Int. Com. Com. v. De- I. C. C 329, 332, 333. troit, G. H. & M. Ry. Co., 167 § 154A] Equality in Rates.. 451 relief should be granted under the power conferred by the proviso, the Commission could not act arbitrarily, bjut must apply the principles controlling in administering other por- tions of the Act. Applying this conclusion to transcontinental transportation, the Commission divided the United States into zones and fixed a rate percentage between the different zones." Suit being filed in the Commerce Court, that court enjoined the order of the Commissions."^ An appeal being taken to the Supreme Court, that court reversed the Com- merce Court and sustained the validity of the statute, thus leaving in force the orders of the Commission.*" The right primarily to determine for themselves the exist- ence of circumstances as a basis of charging higher rates for shorter than for longer distances, was taken from the carriers and vested in the Commission by the amendment of 1910. This fact was stated by the Supreme Court, following which statement it was said :^°° "This results from the fact that by the amendment in question the original power to determine the existence of the conditions justifying the greater charge for a shorter than was exacted for a longer distance, was taken from the carriers and primarily vested in the Interstate Commerce Commission, and for the purpose of making the prohibition efficacious it was enacted that after a time fixed no existing rate of the character provided for should continue in force unless the application to sanction it had been made and granted." § 154 A. Long and Short Haul Clause Under Act 1920. — For years there have been advocates of a provision which would 97. Railroad Com. of Nevada C. 329 and 400, supra, Opinions V. Southern Pac. Co., 21 I. C. C. Commerce Court Nos. 50, 51, p. 329; City of Spoltane v. Northern 229 — ("Intermountain Case"). Pac. Ry. Co., 21 I. C. C. 400. 100. United States v. L. & N. R. 98. Atchison, T. & S. F. Ry. Co. Co., 235 U. S. 314, 59 L. Ed. 245, V. United States, 191 Fed. 856. 35 Sup. Ct. 113, citing Intermount- 99. United States v. Atchison, T. ain Case, note, supra- Louisville & S. F. Ry. Co., 234 U. S. 476, & N. R. Co. v. United States 245 58 L. Ed. 1408, 34 Sup. Ct. 986, U. S. 463, 62 L. Ed. 400, 38 Sup. reversing Atchison, T. & S. F. Ry. Ct. 141; United States v. Mer- Co. V. United States, 191 Fed. chants & M. Traffic Assn., 242 U. 856, supra, and sustaining order S. 178, 61 L. Ed 233, 37 Sup. Ct. of the Commission in 21 I. C. 24. 452 Equality in Rates. [^ 155 unqualifiedly prohibit a greater charge for a shorter haul over the same line in the same direction. The amendment of 1920 is a compromise between such advocates and those v\^ho were satisfied with the amendment of 1910. The quotation conclud- ing section 154 above is ample authority to sustain the valid- ity of the 1920 amendment. Such amendment grants no fur- ther power to the Commission, but restricts the power which it had under the former law. 101 § 155. Fourth Section— Relation between Through Rates and Intermediate Rates. — That through rates should not ex- ceed the sum of the local rates and that prima facie the through rates should be less than the aggregate of the locals, were general principles announced and applied by the Com- mission prior to the Act of 1910. The amendment contained in that Act made it illegal for a carrier "to charge any greater compensation as a through route than the aggregate of the intermediate rates subject to the provisions of" the Act."^ The Commission has assumed to grant relief from this clause of the Fourth section as it has and was certainly authorized to do as to the provision relating to long and short hauls. The purpose of the Amendment was to fix one method of measur- ing rates and to prevent unjust discrimination. Obviously two or more hauls over intermediate lines should cost more than one haul over the same lines ; therefore, to charge more for what costs less is unjust discrimination. The subject has been discussed supra, section 119, 120 and 121. § 156. Discrimination between Carloads and Less than Car- loads. — A differential between carload and less than carload shipments is not prohibited by the Act to Regulate Commerce, and the Commission has said :"* "It is a sound rule for car- riers to adapt their classifications to the laws of trade. If an article moves in sufficient volume, and the demands of com- merce 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 quantity." Whether or not there should be a differential and, if any, w^hat, between carload and less 101. Sec. 349. post. H. R. R. Co., 3 I. C. C. R. 473, 102. Sec. 200, post. 2 I. C. R. 742. 103. Thurber v. New York C. & § 157] EQUALITY IN Rates. 453 than carload depends npon tlie facts and circumstances of each particular 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 bie reasonable and should be fixed with a view to the just inter- ests of all concerned and the adjustment of this difference rests primarily with the carriers'"" This principle has been very generally recognized by carriers. The number of commodities taking car load classifications has materially increased. This progessive recognition of the law that it is discrimina- tion to charge for a less expensive 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 always shown reluctance to require the establishment of carload ratings, it has to prevent discrimina- tion ordered carriers to make such a rating.'"" The question is discussed in sections 112, 113, and 116 supra, and there is a full review of the authorities in the Taylor Dry Goods case.'" § 157. Bulked Shipments.— It has been held'"' in England that a railway company cannot legally charge a greater sum 104. Noyes, American Railroad Ry. Co., 40 I. C. C. 101; South- Rates, 73. eastern Cotton Goods 43 I. C. C. 105. Business Men's League of 530, 536, and Consolidated Claa- St. Louis V. Atchison, T. & S. F. sification Case, 54 I. C. C. 8, the Ry. Co., 9 I. C. C. 318, 358, 359, Commission continues its "pro- 368; California Com. Asso. v. gressive recognition'' of the text Wells Fargo Ex. Co., 14 I. C. C. of this section written in 1909. 422; Scofield v. Lake S. & M. S. In Wyeth Hdw. & l\Ifg. Co. v. A. R. Co., 2 I. C. C. 90, 2 I. C. T. & S. F. Ry. Co., 39 I. C. C. 697, R. 67. 700, the Commission came near to 106. Spokane v. N. P. R. Co., a retrograte movement. 19 I. C. C. 162. 108. Crouch v. G. N. R. Co., 11 107. Taylor Dry Goods Co. v. Ex. 742, 25 L. J. Ex. 137, Baxen. M. P. Ry. Co., 28 I. C. C. 205. In dale v. L. & S. W. Ry., 4 H. & the 1915 Western Advance Rate C. 130, 35 L. J. Ex. 108, L. R. Case, 30 I. C. C. 497, 495; Chi- 1 Ex. 137, 12 Jur. (N. S.) 274, 14 cago Wool Co. V. C. M. & St. P. L. T. 26, 14 W. R. 458. 454 "Equality in Rates. ['^ 158 for the ear'-'age of a package containing several parcels belonging to different persons than for a package containing several parcels all belonging to one person. The English rule was held by the majority of the Commission, Mr. Com- missioner Lane writing the opinion, to be the law in the United States.^"" From this rule Commissioners Knapp and Harlan dissented. The question coming before the circuit court, Circuit Judges Lacombe, Ward and Noyes adopted the dissenting opinion of Mr. Commissioner Knapp/^" It is difficult to see what interest 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 par- cels? Does not the rule announced by the court supra open an opportunity for illegal devices? Suppose a shipper claims he owns all the packages and they are billed to one consignee, it would in some cas,es, be impossible to prove that the shipper's statement was not true. In a case wherie a shipper concealed the true ownership he would get a carload rating, while the more honest shipp,er 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 shipmeJits move the sam,e 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 owners. § 158. Carloads — Ownership of. — The next preceding sec- tion taken from the first edition of this book was written prior to the decision of the Supreme Court in the Bulked Shipment case.'''" In that case, decided April 3, 1911, the rule announced in the text was stated to be the law. In the course of the opinion it was said : 109. California Com. Asso. v. Int. Com. Com., 166 Fed. 499. "Wells Fargo Ex. Co., 14 I. C. C. 111. Int. Com. Com. v. Delaware, 422; Export Shipping Co. v. Wa- L. & W. R. Co., 220 U. S. 235, bash R. Co., 14 I. C. C. 437, and 252, 253, 55 L. Ed. 448, 31 Sup. cases cited in the prevailing and Ct. 392. citing as construing the dissenting opinions. English Equality Clause, Great 110. Delaware, L. & W. R. Co. v. Western R. Co. v. Sutton, 1869— <^ 159] E-QUALITY IN Rates. 455 "The contention that a carrier when goods are tendered to him for transportation can make the mere ownership of the goods the test of the duty to carry, or, what is equivalent, may discriminate in fixing the charge for carriage, not upon any difference inhering in the goods or in the cost of the service rendered in transporting them, but upon the mere circumstance that the shipper is or is not the real owner of the goods is so in conflict with the obvious and elementary duty resting upon a carrier, and so destructive of the rights of shippers as to demonstrate the unsoundness of the proposi- tion by its mere statement." In giving the reason for the conclusion reached, the court said : "Moreover, the unsoundness of the contention is demon- strated by authority. It is not open to question that the provisions of Section 2 of the Act to Regulate Commerce were substantially taken from Section 90 of the English Railway Clauses Consolidated Act of 1845, known as the Equality Clause." The principle being thus established, is universally followed. It has been held that in such shipments the forwarding agent is so far the agent of the shipper as to bind him by a contract for released rates."" § 159. Train Loads. — The usual course of business must be considered in determining questions of discrimination, and while there may be some basis in logic for the claim that a lower rate a car should be made on train loads than on ear- loads, in fact train loads are rarely used and such a unit of quantity would not be equitable or justified. This principle is well expressed by the Commission as follows : "Whatever difference there may be in the cost to the carrier between traffic in train loads and traffic in carloads, it appears from the general course of legislation with respect to commerce between the states, from the debates and reports L. R. 4, H. L. 226, 38 L. J. Ex. Manchester, etc., R. Co. 1885—11 177, 22 L. T. 43, 18 W. R. 92; App. Cas. 97. Evershed v. London & N. W. 112. Great Northern Ry. Co. v. Ry. Co., 1878^33 App. Cas. 1029, O'Conner, 232 U. S. 508, 58 L. and Denaby Main Colliery Co. v. Ed. 703, 34 Sup. Ct. 380. 456 Equality in Rates. [§ 160 of the various committees in Congress when the Act to Regu- late Interstate Commerce was under consideration, from the better considered court opinions, and from the reports and opinions of this Commission, that to give greater consideration to train-load traffic than to carload traffic would create prefer- ence in favor of large shippers and be to the prejudice of small shippers and the public.""^ § 1C)0. Classification of Commodities Should Be Without Discrimination. — 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 interstate commerce act and discriminate beween "like kinds of traffic." A uniform classification would be much better than the differences now existing in that respect and the Commission "has sought as far as practic- able to secure the establishment throughout the country of a uniform classification of freight/'"^ We have seen, sec- tion 90 ante, that low class traffic of prime utility and moving in large quantities demands a low rate . The principles of classification are so important and are sc clearly stated by Prof. Henry C. Adams, former Statistician of the Interstate Commerce Commission,"^ that it is valuable to reproduce them here : "Principles underlying freight classifications. — It was dis- covered early that the charges for transportation of different articles of freight could not be apportioned among such articles with regard alone to the cost of carriage. This basis of determining the charges, it was found, would confine to narrow limits the movement of different articles, whose bulk or weight was large in comparison to their value, while 113. Anaconda Copper Mining 114. Stowe-Fuller Co. v. Penn- Co. V. Chicago & E. R. Co., 19 sylvania Co., 12 I. C. C. R. 215, I. C. C. 592, 596; Carstens Pack- 220. ing Co. V. Oregon S. L. R. Co., 115. Duluth Shingle Co. v. Du- 17 I. C. C. 324, 328. See also Sec. I'Uh, etc., R. Co., 10 I. C. C. R. 116, supra: Burlington C. R. & N. 489, 504. Ry. Co. V. Northwestern Fuel Co., 116. Railways in United States, 31 Fed. 652; Paine Bros. v. Le- part 2, pp 14, lo. high Valley R. Co., 7 I. C. C. 218. § 160] Equality in Rates. 457 heavier articles with less bulk would l)e made to pay dispro- portionately low rates. "Under the system of apportioning the charges strictly to the cost, some kinds of commerce which have been very use- ful to the country and have a tendency to bring different sections into more intimate business and social relations could never have amounted to anj^ 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 tratSc 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 when the comparison was with the value of the service in transporting them. "Accordingly, it was found not to be unjust to distribute tlie 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 would be most bene- ficial to the country ; it would enlarge commerce and extend communication, and would be better for the railroads be- cause 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 classifica- tion is to be made. The classifications as now constructed have for tlieir foundation the following elements : "The competitive element or the rates made necessary by competition. "The volume of the business — that is, the tonnage move- ment. "The direction in which the freight moves, that is, whether it 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. 458 Equality in Rates. [§ 161 "The degree of risk attending transportation. "The facilities required for particular or special shipments. "The conditions attending transportation, such as furnish- ing 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 M^^ich the new articles to be classified bear to other articles found in the classification. "The conditions under which railroad companies can af- ford to transport traffic have a large influence in determining the classification. "These are the general rules under which classifications are constructed, and while to a large extent controlling, the classifications are, notwithstanding, in a great measure a series of compromises, the participants in which are not alone the railroads, but also the shippers and representatives of business interests throughout the country, the latter being aflt'orded ample opportunity to join with the railroads in the discussion as to the proper classification of articles of ship- ment affecting their interests. ""While the pressure for reductions is very strong from certain localities, concessions are not now so readily granted, as the territory covered ^yy 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 regarded as identical, and the welfare of the whole territory and all interests affected must be considered. It is, however, occasionally observed that particular localities are, to some extent, preferentially served by the action of carriers who resist proposed changes in the classification for the reason that, in their opinion, they will operate to the prejudice of certain patrons. Thus exceptions to the classi- fication are created by a road continuing to carry some ar- ticles at one class, while, in the opinion of a majority of the roads using the classification, the articles could well stand a higher rating." § 161. Uniform Classification. — Efforts to obtain uniformity in the classification of coinmodities have been made since the § 161] E-QUALiTY IN Rates. 459 date of the original Act to Eegulate Commerce, and probably even before that date. Beginning at page 453 of volume 25 of the Interstate Commerce Commission Reports is given a history of these efforts since 1887. In the same case in which that history is given the Commission stated some principles which should be applied to all attempts to reach uniformity. Says the Commission: "The making of a freight classifica- tion is a great public function," and further: "No great re- form like classification reform, which touches every interest in the country, can ever hope to be carried into effect without causing disturbances, annoyance, and opposition, and some injustice. It is therefore especially important that before a classification committee publishes new rules, descriptions., packing requirements, and ratings, full public hearings shall have previously been given after sufficient notice. It is not necessary to hear everyhody. In making a classification that would mean endless repetition and interminahle controversy without ever reaching a conclusion. Rather is it important to hear everything. In other words a body of experts in classification should hear and know everything and then form their conclusions." ^^'^ We now have three general classifications : First. The official classification, which, speaking generally, applies north of the Ohio and Potomac Rivers and East of Chicago and Mississippi River. Second. Southern classification, applying generally to the territory south of the Ohio and Potomac Rivers and east of the Mississippi River. Third. The western 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, applying locally on shipments moving between points in those states. Between points in the State of Texas the west- ern classification governs in connection with an exception 117. Re Western Classification, I. C. C. 554. See also Sections 25 I. C. C. 442, 450, 451, et scq.; 81, 81 A ante, and 160, supra. Western Trunk Line Rules, 34 460 Equality in Rates. [§ 162 shoet published by the railroad commission of that state. There is also a classification known as the New England Freight Classification, which governs the class rates between points on the eastern, western and northern divisions of the Boston and Maine Railroad. Progress has been made towards uniformity of classifica- tion by the decisions in the Consolidated Classification case"* and the Perishable Freight Investigation.*^" This uniformity should be reached separately from any question of the meas- ure of rates. When the carriers seek so to change this classi- fication as to raise rates, the fact that uniformity may also be accomplished will not justifv an otherwise unjustified rate."" § 162. Power of Commission over Classification. — The Com- mission has the power to prohibit a classification that works a discrimination. This power was exercised by the Commission and a forcible and illustrative opinion written by Mr. Com- missioner Knapp in Procter & Gamble v. Cincinnati, H. & D. Ry. Co.'"^ This order of the Commission was enforced.""^ The Supreme Court, Mr. Justice "White delivering the opin- ion, concluded the discussion of the question by saying : "AVhatever might be the rule by which to determine whether an order of the Commission was too general where 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 specific commodity or commodities or localities, or as applied to territory subject to different classifications, we 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 committed and the redress which that 118. Consolidated Clasificatlon higher than class rates, although Case, all of Vol. .54 I. C. C. this is unusual. Sulphuric Acid 119. Perishable Freight Investl- from New Orleans, 42 I. C. C. 200, gation, 56 I. C. C. 449. 202 and cases cited; Warren, 120. National Society of Record Webster & Co., v. P. & Ry. Co., Assn. V. A. & R. R. Co., 40 I. C. 38 I. C. C. 499. C. 347, 356. Associated Railway 121. Procter & Gamlile v. Cin- Classification Exceptions 41 I. C. cinnati, H. & D. Ry. Co., 9 1. C. C 561. Commodity rates may be C. 440. 122. Cincinnati H. & D. Ry. Co. § 1G8] E-QUALiTY IN Rates. 461 wrong necessitated. Finding, as the Commission did, that the classification, by percentage of common soap in less than carload lots operating througout offical classification ter- ritory, brought about a general disturbance of the relations previously existing in that territory, and created discrimina- tions and preferences among manufacturers and shippers of the commodity and between localities in such territory, we think the Commission was clearly within the authority con- ferred by the Act to Regulate Commerce in directing the carriers to cease and desist from further enforcing the classifi- cation operating such results." The subject is one which involves so many facts that only the general principles come within the purview of this book. In a report of nearly two hundred pages the Commission has discussed the subject, cited illustrative decisions, given the history of eflforts for uniform classification, and annoimced applicable principles.'" § 163. 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 described and its legality discussed by Mr. Commissioner Prouty as follows :'" "Generally in its application the raw material pays the local rate into the point of manufacture ; when afterwards the manufactured 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 ofi' to test the market. V. Int. Com. Com., 206 U. S. 142, Interior Iowa Cities Case, 28 I. 51 L. Ed. 995, 27 Sup. Ct. 648. C. C. 64. 123. Re Western Classification, 124. Diamond Mills Co. v. Bos- 2r, I. C. C. 442, 609. See also ton & M. R. Co., 9 I. C. C. 311. 125. Central Yellow Pine Assn. 462 Equality in Rates. [§ 163 "It may be argued with much force that the Act to Regu- late 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 prac- tices were, however, in use to a considerable extent at the time of the passage of the act and since then they have be- come universal. To abrogate 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 their continuation. Nor is it a forced construction of the statute to hold that w^hen the product finally goes forward to the point of consumption it but completes the journey upon which is entered when the raw material was taken up. There can be no doubt that the application of this principle has cheapened the cost of trans- portation and probably of manufacture. The commission finally held, In re Unlawful Rates in the Transportation of Cotton, 8 I. C. C. Rep. 121, that cotton might be compressed 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 priv- ilege which the carrier may concede,, but which the shipper cannot, in the present state of the law, demand as a matter of lawful right. Carriers may not, however, discriminate be- tween markets nor between individuals in the granting of such privileges." In the Diamond Mills case, supra, the Commis.sion said: "A complete system of interstate railway regulation would prob- able 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: V. Vicksburg S. & P. R. Co., 10 v. Mobile & O. R. Co.. 11 I. C. C. I C. C. 19, 213. 214. R. 90, 101. 126. St. Louis Hay & Grain Co. 127. post, sec. 335. § 164:] E-QUALiTY IN Rates. 463 "The term 'transportation' shall include * * * all in- struments and facilities of shipment or carriage * * * and all services in connection with the receipt, delivery, eleva- tion, and transfer in transit * * * storage and handling of property transported," and it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto. Under this amended law the Commission has required milling in transit to be extended so as to pre- vent discrimination/"* In the 1915 Western Rate Advance case,'"* it appeared that the grain rates then sought to be advanced were suf- ficiently high, that the flour rates which were the proportional or remainder of the through rates were too low. The car- riers having offered their proof on the theory that the mill- ing in transit privilege should continue, it was pointed out by the Commission that the owner of the grain who paid the high local rate to the mill or the market should not have his rates increased, because the remainder of the through rate was too low. § ]64. Rebilling. — Eebilling is a privilege granted to cer- tain markets and consists of the right to ship a commodity from the point where it is produced to a 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 remainder of the through rate. Commissioner Prouty illustrated 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 128. Southern Illinois Miller's and Practices in the Transport- Assn. V. L. & N. R. Co., 23 I. C. ation of Grain, 7 I. C. C. 240. C. 672, 678. 241, 242, 247. See also Re Sub- 129. Western Rate Advance Case stitution of Tonnage at Transit 1{>15, 35 I. C. C. 497; Nashville Points, 18 I. C. C. 280. For a fur- Flower Transit Rules, 41 I. C. C. ther definition see Cairo Board of 483, 490. Trade v. C. C. C. & St. L. Ry. Co., 130. Re Alleged Unlawful Rates 46 I. C. C. 343, 348. 4G4 Equality in Rates. [^ 164 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 Plutchinson to Kansas City IS^/o cents. A shipper from Plutchinson would forward a car load of corn to Kansas City and pay the local rate of 13 Vo cents. If afterwards he con- cluded 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 Railroad, for instance, would transport this car load of corn from Kansas City to Chicago, not for 20 cents per 100 pounds, but for 11 Mi 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 shij^per 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 wliat 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 ship- ped into Kansas City upon a local bill of lading in the first instance 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 origin to Kansas City was not the same in all eases, nor, indeed, in most cases, and consequently the balance of the through rate continually varied." In the same case the practice was declared illegal and this rule was stated: •^ 165] E-QUALiTY IN Rates. 465 "An indispensable element in every through shipment would seem to be a contract for such through service ; an agreement between the parties at the inception of the car- riage that the freight shall be transported to the point of destination at the through rate." Tts disapproval of the practice wa sindicated by the com- mission in the cases of Mayor, etc., of Wichita v. Atchison, T. & S. F. Ky. Co., 9 I. C. C. 534, and Cannon Falls Elevator Co. V. Chicago, etc., R. Co., 10 I. C. C. 650. § 165. Rebilling: — Found Illegal. — In the Duncan case"' the Commission, speaking through Mr. Commissioner Clements, describes the practice and states the conclusion of the Com- mission as follows : "It is contended by defendants that rebilling or reship- ping 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 through- out the southeastern territory and is in no sense applied to Nashville or any other particular point alone. "We are not convinced that the circumstances and condi- tions under which the reshipping privilege is accorded at Nashville are so dissimilar from those obtained 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 Memphis and 1 at Louisville. He pays, up to Nashville on a Memphis car, 11 cents per 100 pounds and on the Louisville car 10 cents. Should this Memphis ear burn, after being put in the warehouse, or be sold at Nashville, he would have two expense bills and one car of grain. Should he sell a car at Atlanta, the Nashville merchant would naturally use the Memphis bill which shows a payment of 11 cents, paying the 131. Duncan v. N. C. & St. L. Ry. Co., 16 I. C. C. 590. 466 Equality in Rates. [§ 165 balance of the tlirough rate from Mempliis to Atlanta of 9 cents. He has', therefore, shipped the Louisville ear to At- lanta 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 considerable grain is consumed in Nashville there is always a surplus of expense bills which may be manipulated in order to secure a cheaper rate than that provided in the tariffs. In answer to this defendants say that the operation of the reshipping l^rivilege. as described in this example, is limited by the fact that the Memphis car of grain is worth more to the dealer at Nashville than the St. Louis car, by reason of the difference in the freight rate, and, therefore, Memphis grain is not sold at Nashville proper, but is all reshipped to the southeast. It is to be noted that the tariffs of the carriers contain a rule which prohibits trading in expense bills, and it is hardly probable that such a rule would appear if the manipulation 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 remark 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 sporadic or isolated acts in contravention of public policy. A practice or privilege which permits the movement of a single shipment at less than the rate lawfully applicable to such movement is one which the commission has, under the law, no alternative but to condemn. "In considering a practice at Kansas City similar to the one under consideration (Alleged Unlawful Rates and Prac- tices, 7 I. C. C. 240), it was found that the practice of hand- ling 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 regarded 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 rebilling or reshipping at Nashville. The grain upon its arrival at Nashville loses its identity, and § 1G6] Equality in Rates. 467 in every respect may be regarded 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 transac- tion indicating that the grain is to be carried beyond Nash- ville. 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 rebiilling privilege and the application of rates thereunder obtaining at Nashville is an illegal device by means of which grain, grain products, and hay may be transported at less than the tariff rate applicable thereto ; and further, that it gives to Nashville undue and illegal preference and advantage and subjects other points in the southeast to unjust and unreason- able prejudice and disadvantage. § 166. Rebilling— Illegal Only When Unjustly Discrimina- tory — Subsequently to its first opinion in the Duncan case, supra, the Commission in an investigation "did not * * * condemn rebilling or reshippmg as such," and in a second opinion there was entered a finding and holding that the priv- ilege there under discussion "constituted an unreasonable preference or advantage and undue and unreasonable pre- judice and disadvantage in violation of section 3 of the act to regulate commerce."^''" The Supreme Court, reversing the Commerce Court, sus- tained the Commission's order in the second case, placing its conclusion more on section 4 than on section 3 of the Act, although section 3 was the section relied on by the shippers and in the opinion of the Commission."^ Upon further hear- ing the Commission reiterated its order."* The Supreme 132. Duncan v. N. C. & St. L. For same case on application for Ry. Co., 21 I. C. C. 186. preliminary injunction, see Nash- 133. United States v. L. & N. ville Grain Exchange v. United R. Co., 235 U. S. 314, 59 L. Ed. States, 191 Fed. 37, Opinion 245, 35 Sup. Ct. 113. Commerce Court No. 46, p. 165. 134. Duncan v. N. C. & St. L. On appeal to Supreme Court, see Ry. Co., 35 I. C. C. 477. For the United States v. L. & N. R. Co., further history of the case, see 235 U. S. ai4, 59 L. Ed. 245, 35 Louisville & N. R. Co. v. United Sup. Ct. 113. Nashville Grain Exch. States, 197 Fed. 58, Opiniojii v. U. S. 234 Fed. C99. Commerce Court No. 47, p. 173. 468 • Equality in Rates. [^ 167 Court has indicated that such practice is discriminatory, and that when shipments are made at the remainder of the through rate, carriers are estopped to say that such remainder is not a fair rate on all traffic. That court, speaking through Mr. Justice Brewer, said :^^^ "Under the guise of a rebilling rate, the Vicksburg mer- chant who dealt 'with this western road was given a rate of 31^ 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 interstate rate may not be a legitimate basis upon which a state railroad 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 re- turn 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," § 167. Rebilling'. Conclusion. — That rebilling offers oppor- tunity for manipulation of expense bills cannot be doubted, although that fact is insufficient to show that the practice is illegal. The decision of the Supreme Court sustaining the second order in the Duncan case supra, compares a reship- ping or rebilling rate with a local rate, and holds in effect that when such rates are so compared, the lower reshipping rate for the longer haul may result in a violation of the fourth section, where the local rate for the shorter haul is higher. That such might be the result is true. If there are no reasons why there should be a reshipping rate lower than a local rate, the reshipping rate by whatever name called may be in substance but a local rate. Properly considered, the opinion of the Supreme Court applies the well known principle that substance and not form should be the determining factor. Rebilling rates are not illegal per se, and such rates become unlawful only when they produce a discrimination prohibited by section 8 or when they are in substance local rates and 135. Alabama & V. R. Co. v. U. S. 496, 51 L. Ed. 298, 27 Sup. Railroad Com. of Mississippi, 203 Ct. 163. § 168 Equality in Rates. 469 violate section 4. The final opinion of the Commission in the Duncan case accords with this conclusion. § 168. Payment of Elevator Allowances. — Formerly carriers bringing grain from producing territory paid elevators, even warehouses and .stores, allowances for elevating, sacking, grading and weighing grain. Such payments were first held to be lawful and later unlawful. The Supreme Court found them lawful when reasonable and free from discrimination."" The decision of the Supreme Court did not exclude the Com- mission from exercising its administrative functions nor from deciding that such allowances might be withdrawn by the carriers. After these decisions of the Supreme Court, in a case sustaining the right of the carriers to withdraw such elevator allowances as are not necessary incidents to the transportation, the Commission gave a history of the decisions, and reached the conclusion that where elevation is a necessary part of the transportation, the carriers cannot escape the obli- gation to perform or pay for the service, otherwise the serv- ice or payment therefor, may be withdrawn."^ Discrimination when it exists violates both sections two and three of the Act to Regulate Commerce. There is a provision of section 15 of the Act to Regulate Commerce under which the owner of property transported who renders any service connected with the transportation or who furnishes any instrumentalities used therein, may be compensated therefor by the carriers. Applying this section, the Supreme Court has held that carriers may and must pay the owners of grain transported for elevating such grain. Of course the provisions of sections 1, 2 and 3 apply and the payments must be reasonable and free from undue or un- reasonable preference or advantage. 136. Re Allowance to Elevators Union Pac. R. Co. v. Updike Grain by Union Pac. R. Co., 14 I. C. C. Co., 222 U. S. 215, 56 L. Ed. 171, 315; Traffic Bureau Merchants Ex- 32 Sup. Ct. 39, affirming sam& change of St. Louis v. Chicago, styled case, 178 Fed. 223, 101 C. B. & Q. R. Co., 14 I. C. C. 317, C. A. 583. 331; See Sec. 404, post; Int. Com. 137. Grain Elevation Allowances Com. V. Diffenbaugh, 222 U. S. at Kansas City, 34 I. C. C. 442. 42, 56 L. Ed. 83, 32 Sup. Ct. 22, Note also Omaha Elevator Co. v. modiflying decree in Peavey & Co. Union Pac. R. Co., 249 Fed. 827, V. Union Pac R. Co., 176 Fed. 409; 162 C. C. A. 61, 470 Equality in Rates. [§ 169 § 169. Transit Privileges — Generally. — Ordinarily the through rate from point of origin to point of destination is less than the aggregate of the intermediate rates, the result of this generally applied rule is that jobbers and manufacturers at cities intermediate between the points of production and of consumption cannot compete with those located at the cities at or near to the points of consumption. That such com- petition may be made possible, transit rates have been ac- corded under which the commodity may be stopped at the intermediate point for cleaning, milling, sorting, manufactur- ing or otherwise treating. After such stoppage the same commodity, or the same kind of comm,odity, or the product of the commodity, may be transported to the farther destina- tion at a rate less than the local rate. This difference be- tween the remainder of the through rate or the transit rate being accorded because the commodity had paid a charge up to the intermediate point. The justification for this practice is commercial, and not based on cost of service, blecause it costs no more to move a commodity originating at a particular place than it costs to transport the same commodity which has received a prior transportation service. In speaking of the practice the Commission said :^'''* ' ' Transit in many cases is beneficial in its application. When it can be applied with- out discrimination it results in the diffusion of business, in giving to rival communities the relative advantages to which they are entitled, and which can be accorded them in no other way, and, generally speaking, in the application of lower transportation charges. The commercial operations of this country have in many instances grown upon the exercise of transit privileges and could have been developed in no other way. This Commission has never held that transit was to be condemned in so far as it was beneficial and could properly be applied." There are possibilities of misusing the transit rates, these the Commission has sought to guard against. Rules have been announced and principles stated for the government of car- riers in respect to transit. On this subject the Commission 138. Transportation of Wool, 171. Hides and Pelts, 23 I. C C 151, § 170] Equality in Rates. 471 has said:''* "The business man who employs the transit priv- ilege looks upon it as a useful and in many cases as an ex- ceedingly profitable practice. Indeed, we recognize that in most instances transit is now a commercial necessity, because of its almost universal application and on account of the development which certain lines of business have taken en- tailing heavy investments. There is only one way to mini- mize violations of the law at transit points and that is by the adoption of unambjiguous rules and the proper policing thereof to reduce the opportunity for such violations." After shipments have moved to the point where later transit is permitted , the transit allowance cannot, in the absence of unlawful discrimination, be made retroactive.**** Reshipping rates, transit rates and proportional rates, all rest upon the same principle and are not illegal merely because local rates may be higher. When these special rates are accorded to one market they cannot lawfully be withheld from another. Import and export rates are made on proportionals, and "a carrier may lawfully make an import rate from a port in the United States to an interior destination less than its domestic rate from the same port to the same destination," but differ- ent rates cannot be made on the proportional in the United States based upon the foreign port from which the traffic starts."- § 170. Allowances to Tap Line Railroads. — What are called tap lines were described by the Commission as follows :"" 139. Transit Case, 24 I. C. C. 42 I. C. C. 736; Burritts v. C. P. 340, 349. See also Fabrication-in- Ry. Co., 45 I. C. C. 195; Fargo Transit Charges, 29 I. C. C. Iron & Metal Co. v. G. N. Ry. Co., 70; Re Substitution of Tonnage 46 I. C. C. 399; National Live at Transit Points, 18 I. C. C. 280; Stock Exch. v. C. B. & Q. R. Co., Transit Case 25 I. C. C. 130, 26 47 L C. C. 380, 400, 401, 402. I. C. C. 204; National Casket 141. Texas & P. Ry. Co. v. Int. Co. V. Sou. Ry. Co., 31 I. C. C. Com. Com., 162 U. S. 197, 40 L. 678. Ed. 940, 16 Sup. Ct. 666; New 140. Meeds Lumber Co. v. A. Orleans Board of Trade v. 111- C. R. Co., 39 I. C. C. 337; Swift inois C. R. Co., 23 I. C. C. 465; & Co. V. M. & O. R. Co., 39 I. C. Import and Domestic Rates— Clay. C. 701; Interstate Packing Co. v. 39 I. C. C. 132. C. & N. W. Ry. Co., 42 I. C. C. 142. Central Yellow Pine Assn. 389; Freeman v. Sou. Ry.. Co., 472 Equality in Rates. [§ 170 "While these logging roads are almost or quite without ex- ception mill propositions at the outset, built exclusively for the purpose of transporting logs to the mill, they soon reach a point where they engage in other business to a greater or less extent. As the length of the road increases, as the lumber is taken off and other operations obtain a foothold along the line, various commodities besides lumber are trans- ported, and this business gradually develops until in several cases what was at first a logging road pure and simple has become a common carrier of miscellaneous freight and pas- sengers. Almost all these lines, even where they are run as private enterprises, do more or less outside transportation, and it would be difficult to draw any line of demarkation be- tween the logging road as such and the logging road which has become a general carrier of freight." In many instances carriers paid divisions of the through rates to these tap lines, which allowances or divisions were usually for the benefit of the lumber manufacturing plant generally the OM^ner of the tap line. This practice was de- scribed by the Supreme Court as follows:'" "The railroads west of the Mississippi make a certain allowance to the mills which have 'logging roads' — that is, roads by which logs are hauled from the timber to the mills. This is called 'tap-line alloAvance or division." * * * The mills east of the river have logging roads also, but appellants make no allowance to them. * * * There does not appear to be any reason for such allowance Avest of the IMississippi which does not ap- ply east of that river, and it amounts to a rebate or reduction from the regularly published rate, and gives an advantage to the mills west of the IMississippi over those east, although the published rates from both are the same." The Commission entered into a general investigation as to the character of tap lines and the legality of allowances thereto, after which it was determined that most of such al- lowances were unlawful, amounting in effect, when paid to a tap line owned by the manufacturing plant, to a departure from the lawful rate.^" V. V. S. & P. Ry. Co.. 10 I. C. C. 206 U. S. 441, 444, 51 L. Ed. 1128, 193, 199. 27 Sup. Ct. 700. 143. Illinois C. R. Co. v. I. C. C, 144. Tap Line Cases, 23. I. C. C. <^ 171] Equality in Eates. 473 The Supreme Court, referring to the fact that the trans- portation of lumber was excepted from the commodities clause"" of the Comineree Act, reversed the Commission and held that if the tap line, although owned by the manufactur- ing plant was a common carrier the payment of a division thereto was not illegal. The Court also held that not the extent to which a railroad is used, but the right of the public to demand service of it, determined its character as a com- mon carrier/" The holding of the Supreme Court does not deprive the Commission of the power to regulate tap lines participating in interstate commerce. As to rates, rules and practices, the Commission has power over these short lines to the same extent as over other common carriers subject to ita jurisdiction.*" § 171. Allowances to Industrial Tracks. — Except for the proviso of the Commodities clause which excepts from its provisions thereof "timber and the manufactured products thereof," the principles applicable to allowances to industrial railroads are similar to those applicable to divisions to tap line roads. In the first Industrial Kailways case*" the Com- mission said: "The allowances are made to the industries or to their subsidiary railways in the form of (a) divisions out of the rate, (b) per diem reclaims, (c) remission of demurrage and (d) furnace allowances." It was held that these vari- ous allowances depleted the revenues of the carriers and were generally unlawful. Following the decision of the Supreme Court in the tap line cases, the Commission modified its hold- ing, saying:'** "Since the Supreme Court decided the tap line 277, 549. Kaul Lumber Co. v. C. 55 I. C. C. 113; 111. C. R. Co. v. of Ga. Ry. Co., ."^O I. C. C. 450. Brooks-Scanlon Co., 241 Fed. 445, 145. Sec. 343, post. 154 C. C. A. 227. 146. Tap Line Cases, 234 U. S. 148. Industrial Railways Case, 1, 58 L. Ed. 1185, 34 Sup. Ct. 741. 29 I. C. C. 212. 147. Tap Line Case, 31 I. C. C. 149. Industrial Railways Case, 490; Joint Rates with Birming- 32 I. C. C. 129, 131; and see ham Southern R. Co., 32 I. C. C. Manufacturer's Railway Case, 32 110; Davis Bros. Lumber Co. v. I. C. C. 100; General Electric Co. C. R. I. & P. R. Co., 46 I. C. C. V. N. Y. C. & H. R. R. Co., 14 501; "Wasteful Service by Tap I. C. C. 237; Solvay Process Co. Lines, 53 I. C. C. 656; New Orleans v. D. L. & W. R. Co., 14 I. C. C. N. & N. Ry. Co. V. I. C. R. Co, 246. 474 Equality in Rates. [^ 171 cases, we have given effect to the court's decision by fixing the maximum divisions of rates or switching allowances which the tap line roads may receive from the trunk line carriers. Since that time we have also decided In re Joint Rates with the Birmingham Southern R. R. Co., 32 I. C. C. 110, and the Manufacturers Railway Case, 32 I. C. C. 100, giving effect in each instance, under the facts there found, to the prin- cii)les announced by the Supreme Court. The General Elec- tric Compan.y case,supra, the Solvay Process Company case, supra, and the Crane Iron "Works case, 17 I. C. C. 514, were decided upon the facts, circumstances, and conditions ap- pearing in connection with each. Those cases, however, dif- fered from the tap line cases and from the instant case in that in each of the former cases the industrial railway, or the industrial corporation which in fact owned it, sought to have us require the trunk line roads to accord the industrial roads allowances or divisions which the trunk line roads were un- willing to accord and which they contended would be unlaw- ful." The Supreme Court referred to the distinction drawn by the Commission between "allowances" and "absorptions" as "ab- struse," and when applied to tap lines and industrial roads these words and "divisions" mean essentially the same thing."" By whatever name called they may not be pro- hibited by the Commission, they must be reasonable and free from unlawful discrimination and they could probiably, when not included in the rates charged, be withdrawn by the car- riers. Mr. Commissioner Harlan for years advocated plans under which many of the accessorial services performed or paid for by the carriers, would have been discontinued; or, if continued, paid for in addition to the regular rates. That, under the law, the carriers could adopt such plans is free from doubt. Whether the change should be made is an economic question. The Commission may not compel the adoption of the plans, but it can prevent unlawful discrimina- tion and improper payments."^ 150. Manufacturers R. Co. v. I. C. C. 578; St. Louis Terminal United States, 246 U. S. 457, 482; Case, 34 I. C. C. 453; Second In- 62 L. Ed. 831, 844, 38 Sup. Ct. 383. dustrial Railways Case, a4 I. C. C. 151. Car-Ferry Allowances, 32 596, and cases there cited; Five ^ 172] Equality in Rates. 475 § 172. Illegal for Carriers to Transport Commodities Pro- duced or Owned by Them or in Which They Are Interested. — The ownership or control by carriers of a particular commodity (gives such carriers an opportunity to transport such com- modity and sell it at less than can its competitors who have no means of transportation and must pay the carrier to trans- port their commodity of like kind. The carrier can do this because it can forego some of the rate its competitor must pay and, therefore, undersell such competitor. This evil was prevalent and the Commission had sought to remedy it so far as it could with the limited power it had in this respect before the passage of the Hepburn amendment. Prior to the passage of the amendment containing this clause the Interstate Com- merce Commission brought its bill seeking to enjoin a contract described in the allegation 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 already been delivered and the remainder was in process of delivery. It was averred that the price of the coal at the mines where the Chesapeake & Ohio bought it, and the cost of transportation from Newport News to Connecticut, would aggregate $2,47 per ton, thus leaving to the Chesa- peake & Ohio only about 28 cents a ton for carrying the coal from the Kanawha district to Newport News, whilst the pub- lished tariif for like carriage from the same district was $1.45 per ton." Upon this allegation, the court formulated the question in- volved as follows : "The question, therefore, to b)e decided is this: Has a car- rier engaged in interstate commerce the power to contract and sell and transport in completion of the contract the com- modity sold, when the price stipulated in the contract does Per Cent Case 31 I. C. C. 351, 408, Tube Co. v. Lake Ter. R. Co., 56 409; Mitchell Coal & Coke Co. v. I. C. C. 272 and cases there cited. P. R. R. Co., 38 I. C. C. 40; West- 152. New York, N. Y. & H. R. Co. port Stone Co., Second Industrial v. Int. Com. Com., 200 U. S. 3C1, Case, 38 I. C. C. 316. National 50 L. Ed. 515, 26 Sup. Ct. 272. 476 Equality in Rates. [^ 173 not pay tlie cost of the purchase, the cost of delivery, and the published freight rates?" The evils of carriers engaging in the purchase and sale of commodities transported by them were forcibly pointed out in the course of the opinion. Cases "were cited, and the conclusion was to direct the court below to issue a decree "perpetually enjoining the Chesa- peake & 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." § 173. Commodities Clause of Act 1906. — It is obvious that the evils pointed out so forcibly by the Supreme Court apply equally where the carrier puts the ownership of the com- modity 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 corpora- tion owning the commodity. Congress, by virtue of its plenary power to regulate interstate commerce, sought to prevent 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. This construction is as fol- lows: "We then construe the statute as prohibiting a railroad company engaged in interstate commerce from transporting in such commerce articles or commodities under the following circumstances and conditions: (a) When the article or com- modity has been manufactured, mined or produced by a car- rier or under its authority, and at the time of transportation the carrier has not in good faith before the act of transporta- tion dissociated itself from such article or commodity; (b) When the carrier OAvns the article or commodity to be trans- ported in whole or in part; (c) When the carrier at the time of transportation has an interest, direct or indirect, in a legal therefore, articles or commodities manufactured, mined, pro- 153. United States v. Delaware opinion of lower court, see 164 & H. Co., 213 U. S. 366, 415, 53 Fed. 215. L. Ed. 836, 29 Sup. Ct. 527. For § 174] Equality in Eates. 477 or equitable sense in the article or commodity, not including, duced or owned, etc., by a bona fide corporation in which the railroad company is a stockholder." "In my judgment the act, reasonably and properly con- strued, according to its language, includes within its prohibi- tions 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 — in the company which mined, manufactured or produced, and then owns, 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 transporting company from doing injustice to other owners of coal.", In construing the clause when brought before it the second time the Supreme Court held that when the carrier so exer- cised its power as a stockholder in a corporation owning the commodity as to deprive such corporation of actual indepen- dent existence, the commodities so owned were within the pro- hibition of the law."* AVhen a carrier organized a coal company to which its coal properties were leased and, although the stock of the com- pany so organized was not owned by the carrier, such com- pany was in substance controlled by the carrier, it was held that the commodities clause was violated.^''^ § 174. Cars Must Be Furnished Without Discrimination. — Transportation includes in its meaning "cars," and section one of the Act provides: "Cars shall be furnished irrespec- tive of ownership or any contract, express or implied, for the use thereof." '" It, therefore, is the duty of the carriers subject to the Act to furnish cars without any unlawful preference. In the Pitcairn Coal case,'^' the Circuit Court of Appeals 154. United States v. Lehigh 873. For further history of the Valley R. Co., 220 U. S. 257, 55 litigation relating to this clause, L. Ed. 458, 31 Sup. Ct. 387. see U. S. v. L. V. R. Co., 225 155. post. Sec. 343, U. S. v. Dela- Fed. 399. ware, L. & W. R. Co., 238 U. S. 156. Post, Sec. 337. 516, 59 L. Ed. 1438, 35 Sup. Ct. 157. United States ex rel. Pit- 478 Equality in Kates. [§ 174 prescribed rules for coal car distribution. The Supreme Court, however, held that the courts had no jurisdiction prior to action b}^ the Interstate Commerce Commission, and the lower court was reversed. The Supreme Court said: ''The distribution to shippers of coal cars including those owned by the shippers and those used by the carrier for its own fuel is a matter involving preference and discrimination and within the competency of the Interstate Commerce Com- mission, and the courts cannot interfere with regulations in regard to such discriminations until after action thereon by the commission." ^^^ In the ]\Iorrisdale Coal Co. case, cited note supra, it was con- tended that "all cars in the district should be distributed according to the capacity of the mine, without deducting pri- vate cars, foreign fuel cars, or the carrier's own fuel cars." AnsAvering this contention, the Supreme Court said: "Whe- ther this should be done as a general rule, or under the pe- culiar conditions prevailing on defendant's road at that time, was, as we have seen, an administrative question, and to be decided by the Commission as preliminary to the right to maintain this suit." While the question of the reasonableness of a rule for the distribution of cars is an administrative one over which, when interstate commerce is involved, the Commission alone has primary jurisdiction, the courts, state or federal, have juris- diction to determine whether or not a plaintiff has been damaged by the failure of a carrier to furnish cars "upon the basis of the carrier's own rule of distribution.""^ In other words, what is a reasonable rule is for determination by the Commission ; whether or not an established rule has been violated with resulting damage is a judicial question within the purview of the courts. cairn Coal Co. v. Baltimore & 0. Co. v. Pennsylvania R. Co., 230 R. Co., 165 Fed. 113. U. S. 304, 57 L. Ed. 1474, 33 Sup. 158. Baltimore & O. R. Co. v. Ct. 938. United States, 215 U. S. 481, 54 159. Penn. R. Co. v. Puritan L. Ed. 292, 30 Sup. Ct. 164. The Coal Co., 237 U. S. 121, 59 L. Ed. same ruling was made in Int. 867, 35 Sup. Ct. 484; affirming Com. Com. v. Illinois C. R. Co., same styled case, 237 Pa. 420, 85 215 U. S. 452, 54 L. Ed. 280, 30 Atl. 426, Ann. Cas. 1914B, 37. Sup. Ct. 155; Morrisdale Coal <^ 174] Equality in Eates. 479 A state statute requiring a railroad corporation to furnish cars within a reasonable time after they are required, recog- nized that "a reasonable time in any case would depend upon all the circumstances and conditions existing, including the requirements of the interstate commerce carried on by the corporation," was held valid by the Supreme Court in a suit originally brought in a state court, in which court plaintitf made no attack whatever upon the carrier's rules for car dis- tribution."" The Commission in a decision rendered prior to the court's decision in the Mullberry Coal case (note supra), said:"^ "It is the duty of carriers to furnish cars suitable to transport in safety traffic which they hold themselves out to carry." The claim of exclusive jurisdiction made in that case is probably too broad a claim, although there is little doubt that the Commission has concurrent jurisdiction with the courts in cases where there is a refusal upon reasonable request to furnish cars for interstate transportation. "Cars must be furnished" is the language of the statute, and for any viola- tion of the statute the shipper may recover damages. If the claim presents an administrative question, the Commission alone has jurisdiction. If no administrative question is pre- sented, the "person or persons claiming to be damaged * * * may either make complaint to the Commission * * * or may bring suit * * * in any district or cir- cuit court of the United States," or under the reservation of section 22, in any state court of competent jurisdiction."^ The Commissiion may not, however, reqtiir>e carriers to furnish a tank car, as the words "cars," "transportation" and "practices" alone nor all together used in the Interstate Commerce Act do not confer such power."^ The "car ser- vice" provision of the Act of May 29, 1917, as reenancted and 160. Illinois C. R. Co. v. Mul- Florida Citrus Exchange v. A. C. berry Hill Coal Co., 238 U. S. L. R. Co., 39 I. C. C. 325, 326; 275, 59 L. Ed. 1306, 35 Sup. Ct. Farmers Elevator Co. v. C. M. & 760; affirming same styled case St. P. Ry. Co., 47 I. C. C. 475; 257 111. 80, 100 N. E. 151. Menasha Paper Co, v. C. & N. W. 161. Vulcan Coal & Mining Co. Ry. Co., 241 U. S. 55, 60 L. Ed. V. I. C. C. Co., 33 I. C. C. 52, 64. 885, S6 Sup. Ct. 501. 162. Sees. 8, 9 and 22 of the 163. United States v. P. R. Co., Act. Sees. 382, S83 and 443, post. 480 Equality in Rates. [§ 175 amended l3(.y the Transportation Act 1920 provides how cars shall be distributed and used, but does not attempt to compel carriers to furnish special types of cars.'" § 175. Same Subject — Principles Applied by the Commis- sion. — It- being within the administrative functions of the Interstate Commerce Commission to determine whether or not a particular distribution violates the law. the same question is presented as in other cases of discrimination. In deter- mining the question as to coal cars the Commission has ac- cepted and applied certain general rules. Obviously one coal mine may need and be entitled to more cars than another. This fact makes necessary the rating of mines. This rating can be made by determining the physical and commercial capacity of the mine. Clearly to consider only physical capa- city would be unjust, as that capacity might not be even approximately reached. How this physical capacity has been determined was described by the Commission as follows : "The physical capacity is determined by the thickness of the coal seam, the number of rooms or working places, the capacity of the underground tram tracks, and the facilities for getting the coal out of the mine into the tipple, and from the tipple into the cars. A fixed per diem value is assigned to a man's labor, taking into consideration the character of the seam upon wdiich the work is to be done ; and the number of places in which a man can work is taken into account regard- less of the number who were actually employed. The methed of determining the commercial capacity was described by the Commission as follows : "The commercial capacity, or the requirements of a mine for cars as tested by its actual shipments, is arrived at by taking the volume of the shipments made by a mine during a period of free-car supply, usually of four months and gener- ally from April 1 to Augustl, in each of the two proceding years. The three figures expressed in coal tons, namely, the physical capacity, the commercial capacity for the first year, 242 U. S. 208, 61 L. Ed. 251, 37 165. Rail & River Coal Co. v. Sup. Ct. 95, 227 Fed. 911. Baltimore & O. R. Co., 14 I. C. C. 164. Sec. 344A to F, post. 86, 93, 94. '^ 175] Equality in Rates. 481 and the commercial capacity for the second year, are added to- gether and the sum is divided by three.""" In the Hillsdale Coal & Coke Co. case, supra, speaking of the methods of rating by thus determining the physical and* commercial capacity of the mines, the Commission said : "After a careful consideration of the system as applied to interstate shipments, we are inclined to think * * * that a methed of rating coal mines based upon a combination of their physical and commercial capacities more closely approxi- mates their actual car requirements than a system based upon physical capacity only." The Commission in the Hillsdale case, supra, in summing up the principles adopted in previous cases, said : "The general status of the question before the Commission may be readily ascertained by an examination of our decisions in one or two formal proceedings since the passage of the so- called Hepburn Act. In Railroad Commission of Ohio v. H. V. Ry. Co., 12 I. C. C. Rep. 398, we held that while a carrier during periods of car shortage might not assign privately owned cars to operators other than their own owners, and might not assign foreign railway fuel cars to any mines except those to which they had been manifested by the foreign lines, it must nevertheless count all such cars against the distribu- tive share of the respective mines to which the private cars belonged or to which the foreign railway fuel cars had been consigned ; and in case the private cars or foreign railway fuel cars so delivered to a mine were not sutficient to fill out its distributive share of available coal cars, it should have in addition only so many of the system cars of the carrier as might be necessary, when added to the private or foreign railway fuel cars so received by it, .to make up its full ratable proportion to the total available coal cars of all classes. "We also held that all foreign railway fuel cars consigned to a particular operator, and all private cars owned by a particular operator, must be delivered to that operator, even though their number might exceed the ratable proportion of the parti- cular mine in the distribution of available cars." 166. Hillside Coal & Coke Co. C. 356, 359, 360. V. Pennsylvania R. Co., 19 I. C. 482 Equality in Bates. [§ 175 These general principles were held by the Supreme Court to be sucli as the Commission might legally apply."' but that court in the Morrisdale Coal Co. case, supra, summed up the Commission's cases by saying: "It was, however, recognized that there could be no hard and fast rule, and that circumstances might arise which would otherwise warrant a departure so as to enable the car- rier to meet emergencies arising from a strike on its road, or embargoes by connecting lines." The duty to furnish cars, a facility of transportation, with- out undue discrimination or unjust preference, applies, of course, to all kinds of traffic moved by the carriers."* 1G7. Int. Com. Com. v. Illinois C. R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. 155; Int. Com. Com. V. Chicago & A. R. Co., 215 U. S. 479, 54 L. Ed. 291, 30 Sup. Ct. 163. For cases of the Commiss- ion discussing the general ques- tion see: Richmond Elevator Co. V. Pere Marquette R. Co., 10 I. C. C. 629, 636, 637; Gallo- gly V. Cincinnati, H. & D. R. Co., 11 I. C. C. 1; Parks v. Cin- cinnati & M. V. R. Co., 10 I. C. C. 47; Thompson v. Pennsyl- vania R. Co., 10 I. C. C. 640; Hawkins v. Wheeling & L. E. R. Co., 9 I. C. C. 212; Glade Coal Co. V. Baltimore & O. R. Co., 10 I. C. C. 226, and cases there cited and discussed; Powhatan Coal & Coke Co. v. Norfolk & W. Ry. Co., 13 I. C. C. .69; Traer v. Chicago & A. R. Co., 13 I. C. C. 451; Jacoby v. Pennsyl- vania R. Co., 19 I. C. C. 392; Bulah Coal Co. v. Pennsylvania R. Co., 20 I. C. C. 52; Re Coal Rates Stony Fork Branch, 26 I. C. C. 168. For other than Com- mission cases see: Logan Coal Co. V. Pennsylvania R. Co., 154 Fed. 497; United States ex rel. Coffman v. Norfolk & W. Ry. Co. (C C), 109 Fed. 831; United States ex rel. Kingwood Coal Co. V. West Virginia & N. R. R. Co. (C. C.) 125 Fed. 252; West Vir- ginia & N. R. Co. V. United States ex rel. Kingwood Coal Co., 134 Fed. 198, 67 C. C. A. 220; United States ex rel. Greenbrier Coal & Coke Co. V. Norfolk & W. Ry. Co., 143 Fed. 266, 74 C. C. A. 404; State ex rel. v. Cincinnati, N. O. & T. P. Ry. Co., 47 Ohio St. 130, 23 N. E. 928; United States ex rel. Pitcairn Coal Co. v. Balti- more & O. R. Co., 154 Fed. 108; Illinois Cent. R. Co. v. Mulberry Hill Coal Co., 238 U. S. 275, 59 L. Ed. 1306, 35 Sup. Ct. 760; Vulcan Coal Mining Co. v. I. C. R. Co., 33 I. C. C, 52 and cases cited. Pennsylvania Parafine Works V. P. R. Co., 34 I. C. C, 179. The Supreme Court failed to sustain the Commission in the two last cited cases. See note 163, supra. 168. Re Advance Rates on Po- tatoes, 25 I. C. C. 159, 169; Gal- veston Commercial Assn. v. At- chison, T. & S. F. Ry. Co., 25 I. C. C. 216, 228. § 176] Equality in Rates. 483 § 176. Freight Charges Must be Collected Without Dis- crimination. — One, if not the principal, purpose of the Act to Regulate Commerce being to prevent every form of discrimi- nation, favoritism and inequality,"" and it being the purpose of Congress ''that all shippers should be treated alike," and the intention of the Act being "to prohibit any and all means that might be resorted to obtain or receive concessions and rebates from the fixed rates duly posted and pub- lished," ^'° it would seem to be clear that a carrier should not extend to one shipper a credit and refuse another shipper in like situation the same extension. It would seem to be equally clear that whatever privilege was extended must be stated in the published tariffs :"^ 177. Right of Carrier to Route Shipments beyond Its Own Terminus.— In the absence of a contract specifying the rout- ing, the carrier may route freight passing beyond its own lines over any other reasonably convenient line. If there is a contract on the subject, or if the shipper gives instructions, the carrier must of course, comply therewith. In the absence of instructions, the carrier should route by the most direct and cheapest route. ^" There was nothing in the Act to Regu- late Commerce before the Amendment of June 29, 1906, that would make illegal a contract by which an initial carrier re- served to itself, as a condition of guaranteeing the through rates, the right of routing the shipment beyond its own line as it miglit determine."'' The Hepburn Amendment, not pro- hibiting such right nor specifically granting the power to the 169. Louisville & N. R. Co. v. Ry. Co., 168 Fed. 161, 94 C. C. A. Mottley, 219 U. S. 467, 55 L. Ed. 217, 21 L. R. A. (N. S.) 982, 16 297, 31 Sup. Ct. 265. Ann. Cas. 613; United States v. 170. Armour Packing Co. v. Erie R. Co., 209 Fed. 283. United States, 209 U. S. 56, 52 Transportation Act 1920, post L. Ed. 681, 28 Sup. Ct. 428; Mos- Section 346 A requires Carriers to hassuck Valley Railroad Case, 37 collect freight charges before de- I. C. C. 566; Northampton & livering the freight. Bath Railroad Case, 41 L C. C. 68, 172. Dewey Bros. Co. v. Balti- 72; Hocking Valley Ry. Co. v. more & O. R. Co., 11 I. C. C. 481; United States, 210 Fed. 735. Hennepin Paper Co. v. Northern 171. So held in the United Pac. R. Co., 12 I. C. C. 535. States V. Hocking Valley R. Co., 173. Southern Pac. Co. v. Int. 194 Fed. 234. See Gamble-Robin- Com. Com., 200 U. S. 536, 50 L. son Com. Co. v. Chicago & N. W. Ed. 585, 26 Sup. Ct. 330. 484 Equality in Rates. [§ 178 Commission to j^rohibit same, the carrier may yet excercise 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. The 1920 Amendment gives the Commission power over routing,''* and provides for the recovery of damages for divert- ing shipments contrary to routing instructions.^'^ § 178. Discrimination in Billing. — An unjust discrimination may be committed by billing one commodity under a classi- fication to which it does not belong, by giving it a false weight or value, 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 are pro- hibited by section 10 of the Act to Regulate Commerce (see post, § 384.) 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 practices mentioned, all of which are but devices violating the Act, and subjecting those who are guilty to punishment. The offense 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.^'* One who in good faith by mistake incorrectly describes the goods is not subject to the penal provision of the Act."* § 179. Tariffs of Rates Must Be Printed, Posted and Main- tained. — Xo carrier can engage in interstate transportation of goods "unless the rates, fares, and charges upon which the same are transported bV said carrier have been filed and published." The act requires not only the filing and publishing of such "rates, fares and charges," but demands that the 174. Sec. 344g, post. 178, Missouri, K & T. R. Co. 175. Sec. 401, jiost. v. Trinity Lumber Co., 1 Tex. Civ. vGalley 155. 26367. Templeton. App. 553, 21 S. W. 290. 176. Procter & Gamble v. Cin- 179. Atchison, T. & S. F. Ry. cinnati, H. & D. R. Co., 9 I. C. Co. v. Goetz, 51 III. App. 151; C. 440, 484. Davis v. Pere IMarquette R. Co., 177. Davis v. United States, 10 I. C. C. 105. 104 Fed. 136, 43 C. C. A. 448. § 179] Equality in Rates. 485 published tarififis must be charged and collected. (See post, §§ 358, 364). No change in the tariff can be made without reasonable notice. No provisions of the Act are more effec- tive to prevent discrimination and promote equality than are these. The courts and the Commission have sustained and enforced these provisions. It has sometimes been con- tended that they are unjust when applied to import or ex- port traffic. It is true that such provisions Avould be in- applicable to purely water traffic. It is little or no more ex- pensive for a ship to carry her full, than it is to carry her mininuim cargo. For this reason, as a ship's sailing day ap- proaches and her cargo has not beeii 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 carriers. Ships, as well as individuals, are entitled to know what the land movement will cost and have this cost based upon equality of charge. There is nothing in the law that makes the rail carrier transport its dimestic freight at the same rate as its proportion of an import or export movement.^*" On this subject the Commission, in its twenty- second annual report, pp. 14 and 15, says : "Effective April 15, 1908, and in exact harmony with the decision of the Commission in the case of Cosmopolitan Ship- ping 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 countries 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 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 pre- pared they should also show the inland rate or fare of the carrier subject to the act. 180. Tex. & Pac. Ry. Co. v. Int. Ed. 940, 16 Sup. Ct. 666. Com. Com., 162 U. S. 197, 40 L. 486 Equality in Rates. [^ 179 "Representations were made to the Commission that trans- continental rail carriers reaching our Pacific coast ports were, on account of the long rail haul, at a disadvantage in com- petition with other carriers serving Atlantic ports and trans- porting Asiatic traffic via the Suez Canal route. They there- fore requested modification of the requirements as to notice of changesin rates, and were given permission to make changes in their rates, applicable 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 advance in rates. Subsequently, by supplemental order, the same permission was extended to carriers subject 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 exportrates via the Pacifie ports and applied to the inland carriage of export and im- port 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 T'''nited States with lines east of the Mississippi River, published and filed proportional class and commodity inland rates applicable to Vancouver, British Columbia, on traffic destined to oriental ports, the Philippines, 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 foreign ports in connection with certain named steamship lines. "The rule of the Commission was freely commented upon and for the information of shippers, show through rates to in the newspapers, bhit almost without exception from an en- tirely erroneous standpoint and a total misunderstanding or misconception as to what the rule required. No opinion was expressed by the Commission that the inland portion of ex- port and import rates might not reasonably and properly be less than the domestic rates to the ports. The order simply required the carriers to conform to the plain requirements of the law and to publish, in the manner prescribed by law, what- ever rates thev saw fit to establish on this traffic." § 180] Equality m Rates. 487 § 180. Same Subject. — Misquoting- Rates. — If a carrier makes a mistake and quotes the wrong rate, the shipper must never- theless pay the correct tarifif 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. 418, 421, 422, Mr. Com- missioner Harlan gives the reason for this decision as follows : "And of necessity no other conclusion was possible if the integrity of this regulative legislation is to be preserved. If a mistake in naming a rate between two given points is to be accepted 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 statutes, 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 ship- ment, for the lawfully published rate, the effectiveness of such legislation is at an end and its whole purpose destroyed. For past experience shows that billing clerks and other agents of carriers might easily become experts in the making of errors and mistakes in the quotation of rates to favored shippers, while other shippers, less fortunate in their rela- tions with 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 commercial interests than reduced rates. It was instability and inequality 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 than another shipper that led to the more string- 181. Tex. & Pac. Ry. Co. v. R. Co. v. Dumas, 43 S. W. 609; Mugg, 202 U. S. 242, 50 L. Ed. Chicago, R. I. & P. Ry. Co. v. 1011, 26 Sup. Ct. 628; Gulf C. & S. Plubbell, 54 Kans. 232, 38 Pac. F. R. Co. V. Hefley, 158 U. S. 266, 5 I. C. R. 241; Pond-Decker 98, 39 L. Ed. 910, 15 Sup. Ct. Lumber Co. v. Spencer, 86 Fed. 802; Poor Grain Co. v. Chicago. 846, 30 C. C. A. 430; Mobile & B. & Q. R. Co., 12 I. C. C. 418, 0. R. Co. v. Dismukes, 94 Ala. 421, 422; Suffern, Hunt & Co. v. 131, 10 So. 289, 4 I. C. R. 200; Indiana, D. & W. Ry. Co., 7 I. Atchison, T. & S. F. Ry. Co. v. C. C. 255, 278; Houston & T. O. Holmes, 18 Okla. 92, 90 Pac. 22, 488 Equality in Rates. [§ 180 ent letiislation. That evil the present amended statute meets in substantially the language of previous legislation." While Mr. Commissioner Harlan was undoubtedly correct in his conclusion as the law then stood, the ruling was one that frequently worked 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 wdiich the shipper has acted. "The practical hardship of this rule is illustrated by the last ease in which it w^as applied by that court. Texas and Pacific Eailway Company v. Mugg, 202 IT. S. 242, 50 L. Ed. ion, 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 been said, held that no recovery could be had." It is undoubtedly true that shippers ordinarily do not know and it would sometimes take an expert to find out what a particular rate is, and, therefore, reliance must be had on the information furnished by the agents of the carriers. The Commission points out the evil but suggests no remedy. It would probably be an effective remedy to allow the Com- mission to award reparation in such eases as it might find were based upon an honest mistake of the carrier. The Com- mission would be able to prevent the evils that Mr. Commis- sioner Harlan points out; and, if necessary to prevent discrim- ination, the rate mistakenly given might be open to all who ship contemporaneously with the shipper who relied on the misquoted rate. § 181] Equality in Rates. 489 The Act of 1910 prescribing a penalty for misquoting a rate under certain prescribed conditions makes it illegal to mis- state a rate. This provision taken in connection with Sec- tion 8 of the Act, presents a situation different from that existing prior to this Amendment and now when the amended provision is violated it is believed that a shipper may re- cover his damages/"" § ]81. Different Rates over the Same Line in Opposite Di- rections. — 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 available rate, and there was no discrimination against him on his shipments east to Douisville, as he was charged the general rate exacted of all shippers. His complaint in refer- ence 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 tihe reasonableness of the higher rate. The claim is in substance, that the rate of $350 eastward is unreasonable in view of the fact that the rate over the same line and between the same points westward is only $263. This fact alone is relied upon to support tlie charge. The two rates have no necessary con- nection 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 be- tween the same points in the opposite direction does not, as in the case of hauls over the same line in the same direc- tion, establish prima facie the unreasonableness of the higher rate. This Avould appear to be especially true where the hauls are of as great length as those now under consideration. It is moreover in evidence, as remarked above, that the "west- bound movement of the traffic termed "emigrants' movables" is double the east-bound movement,' and the goods shipped west a.s 'emigrants' movables' are 'materially lower in value' 182. Sees. 368, and 382, posi, 183. Duncan v. Atchison, T. & and St. Louis S. W. Ry. Co. v. S. F. R. Co., 6 I. C. C 85, 4 L Lewellen Bros., 192 Fed. 540. C. R. 385. 490 Equality in Rates. [§ 181 than those shipped east. It may be conceded that the much greater volume of the traffic moved west than east is to some extent attri])utable to the lower 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 unreasonable- ness of this rate in itself has been offered." This ruling has been repeated several times by the Com- mission. 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 towa'rds 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 con- dition. 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 practically equal and there are no other differentiating circumstances, 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 op- posite direction does, as in the case of hauls over the same line in the same direction, establish prima facie the unreason- ablenes.? of the higher rate. The facts in the MacLoon case'" while stated by the Com- mission to be practically the same as in the Duncan case, do not so clearly support 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 later cases"" the MacLoon case is cited 184. MacLoon v. Boston & M. Co., 28 I. C. C. 619; Cadillac R. Co., 9 I. C. C. 642, 645. Lumber Ex. v. V. A. R. R. Co., 185. Hewins v. New York. N. 4,1 I. C. C. 636; Little Rock H. & H. R. Co , 10 I. C. C. 221, Freight Bureau v. Mo. Pac. Ry. 224; Hull Vehicle Co. v. S. Ry. Co., 51 I. C. C. 23 ^ 182] ■ Equality in Rates. 491 and followed. It will be conceded that circumstances may exist justifying a difference in rates over the same line in opposite directions; but, in the absence of proof of such cir- cumstances, such difference is evidence of unjust discrimina- tion, and requires exiilanation/*" § 182. Discrimination by Granting Free Service. — Free tic- kets, fares, passes, or free transportation for passengers are prohibited, with certain exceptions, bj^ paragraph four of sec- tion one of the Act to Regulate Commerce as amended by the Act of April 13, 1908'". The provisions requiring the tariff rates to be charged and collected would prevent the free transportation of property, except such as may be had under section 22 of the Act. The purpose and history of these provisions of the law are given by the Commission in an investigation of the subject of granting passes in Colorado and Montana. In the report of this investigation it was held that to grant an interstate ship- per an intrastate pass violates the Act and prosecutions were recommended. It was also shown that a free pass dissipates revenues and when carriers seek rate advances this fact is proper to be considered."^ In the Mottley Case"* the Supreme Court had for deter- mination the validity of a contract for transportation made by Mottley in consideration of the settlement of his claim for damages. The contract, although made prior to the stat- ute prohibiting free passes, was held void, the court saying: "The passenger has no right to buy tickets with service, advertising, releases or property, nor can the railroad com- pany buy services, advertising, releases or property with trans- portation. The statute manifestly means that the purchase 186. Int Com. Com. v. Louis- 187. Sec. 342, 2yost. ville & N. R. Co., 118 Fed. 613, 188. Re Issuance and Use of 623. Weil v. Penn. R. Co., 11 I. Passes, 26 I. C. C. 491; Re Issue C. C. 627, 629, 630; Phillips v. and Use of Passes — Montana Grand Trunk W. R. Co., 11 I. C. Situation — 29 I. C. C. 411. C. 659, 664, 665; Pacific Coast 189. Louisville & N. R. Co. v. Gypsum Co. v. O. W. R. Co., 30 I. Mottley, 219 U. S. 467, 477, 55 C. C. 135. Heider Mfg. Co. v. C. & L. Ed. 297, 31 Sup. Ct. 265, 34 G. W. R. Co., 39 I. C. C. 556, 558; L. R. A. (N. S.) 671; Tripp v. Merchants Freight Bureau v. M. M. C. R. Co., 238 Fed. 449, 455, P. R. Co., 50 I. C. C. 247, 248. 151 C C. A. 385. 492 ^ Equality in Rates. [^ 183 of a transportation ticket by a passenger and its sale by the company shall be consummated only by the former paying cash and by the latter receiving cash of the amount specified in the published tariffs." While such a contract cannot be specifically enforced, if valid when made, the holder, after the law has prevented its enforcement, may recover damages for its breach.'*" Although the decisions are not uniform and the Supreme Court has not yet decided the question, it would seem that in a suit by a carrier for freight charges the shipper could by plea in re- coupment recover damages for loss or injury to the property shipped."'. § 183. Basing Points, Group Rates and Zone Rates. — In discussing the reasonableness of rates the questions of basing the rate of one locality on that of another, grouping ter- ritory and giving the whole group the same rate, and mak- ing rates to or from particular zones were diseussed.^*^ The description of these systems of rate making there given need not l>:e here repeated .It has there seen that discrimination could result from such practices, and it is obvious that either of the systems may be so applied as unduly to discriminate for or against a particular locality. But it was shown that the systems were not necessarily illegal, the illegality, if existing, arising from the application of the system. Generally speaking, competition may force a lower rate at one point than at another. What competition must be considered and the force that must be given thereto present questions having the difficulties which accompany the deter- mination of all questions relating to making or judging rates. Definite water competition is a fact which carriers may consider, and water competition at one point which forces a low rate thereat may be met by a carrier without being compelled to accord the same low rate to another point where 190. New York C. & H. R. R. Cimeo, 241 Fed. 727, 730 — con- Co. V. Gray, 239 U. S. 583, 60 L. tra, .Johnson-Brown Co. v. V. V. Ed. 4.51, 36 Sup. Ct. 176; Irvin L. & W. R. Co., 239 Fed. 590 V. Postal Tel. & Cable Co., 173 and cases cited 592. Pac. 487. 192. 108, supra, 191. AVells Fargo & Co. v. § 184] Equality in Rates. 493 no such competition exists.'". But, "every city is entitled to the advantage of its location and may not lawfully be sub- jected to high freight charges merely because carriers, for reasons of convenience or otherwise, include it with a num- ber of other points in surrounding territory which latter points are not similarly situated. ' ' '" Carriers cannot of their own initiative, nor can they be compelled, "to equalize natural advantages." '^^ In speaking of group rates, the Commission said: "When general rate adjustments in and between large territories, which contemplate subsltantial justice between all shippers generally, result in individual instances of dis- proportionate inequality, they fail in their purpose to that extent, and their strict observance in such cases upon no other ground than the arbitrary theory of their existence, should yield to the extent necessary to prevent gross in- justice, just as many other general rules are necessarily sub- ject to exceptions.""" The report of the Commission in the Carrollton Board of Trade ease, "' discusses the general subject and holds that distance is a fact requiring consideration. This system following action under the 1910 Amendment has practically ended in the southeast.'"* § 1S4. How Far a Rate Made by a State Relieves a Carrier from the Duty to Serve Commodities with Legal Equality. — That discrimination which the statute prohibits, may result 193. Int. Com. Com. v. Ala- v. Baltimore & O. R. Co., 22 I. bama M. Ry. Co.. 168 U. S. 144, C. C. 84, 88. 42 L. Ed. 414, 18 Sup. Ct. 45; 196. Alpha Portland Cement Int. Com. Com. v. Louisville & Co. v. Baltimore & O. R. Co., N. R. Co., 190 U. S. 273, 47 L. Ed. 22 I. C. C. 446, 449; Kaufman 1047, 23 Sup. Ct. 687; Int. Com. Commercial Club v. T. & N. O. R. Com. V. Western & A. Ry. Co., Co., 31 I. C. C. 167; Coffeyville 181 U. S. 29, 45 L. Ed. 729, 21 Commercial Club v. A. T. & S. Sup. Ct. 512; Columbia Grocery F. R. Co., 33 I. C. C. 122, 34 Co. V. Louisville & N. R. Co., 18 I, C. C. 231. I. C. C. 502. 197. Board of Trade of CarroH- 194. Corporation Com. of North ton v. Central of Ga. Ry. Co., 28 Carolina v. Norfolk & W. Ry. I. C. C. 154. Co., 19 I. C. C. 303, 307. 198. Green v. A. & V. Ry. Co., 195. Elk Cement & Lime Co. 43 I. C. C. 662, 677. 494 Equality in Rates. [§ 185 from the fact that state made rates applying within a pra- ticular state are lower than interstate rates applicable to interstate shipments which are made to compete with like shipments moving under intrastate rates. If Congress has no power to prohibit discrimination when one class of the discriminatory rates is made by a state, there could be the most injurious discrimination from which no remedy would exist. This and similar arguments influenced the Commission in the Shreveport case to direct the carriers there defendant to remove an unlawful discrimination resulting from rates prescribed by the Railroad Commission of Texas. Such an order the courts held was valid."" The doctrine of the Shreveport case has become the ac- cepted rule and the Transportation Act 1920 "'"' has recognized the doctrine and prescribed rules of procedure for its enforce- ment. § 185. Commutation, Mileage and Party Rate Ticket. — Sec- tion 22 of the Act provides: "Nothing in this act shall pre- vent * * * the issuance of mileage, excursion or commu- tation tickets." The right, however, to issue these special contracts for passenger travel is subject to the provisions of other sections of the Act requiring that all in similar situation shall be accorded like treatment. Commutation tickets must not be accorded to some and denied to other similarly sit- uated.^"^ A dictum of Mr. Justice Holmes supports the conclusion that commutation tickets might be limited in their use to school children, while the opinion of the Commission seems to favor the opposite view.""' While the question is not free 199. Houston, E. & W. Ry. Co. Sec. 393b, post — . V. United States-Shreveport case, 201. Commutation Tickets to 234 U. S. 342, 58 L. Ed. 1341, 34 School Children, 17 I. C. C. 144; Sup. Ct. 833, affirming Texas & Re Restricted Rates, 20 I. C. C. P. R. Co. V. United States, 205 426; Commutation Rate Case, 21 Fed. 380, and the order of the I. C. C. 428; Bitzer v. W. V. Ry. Commission in Railroad Com. of Co., 24 I. C. C. 225. La. V. St. L. S. W. Ry. Co., 23 202. Interstate Ry. Co. v. Mas- I. C. C. 31. See also Sec. 44, sachusetts, 207 U. S. 79, 52 L. Ed. supra. 111. 28 Sup. Ct. 26; affirming 200. Transportation Act 1920; Commonwealth v. Interstate Ry. <§ 1S6] Equality in Rates. 495 from doubt, the public purpose served, and the absence of damage to any one tends to justify a classification of school children for the purpose of conceding to them special com- mutation fares. The Commission has said "commutation tickets will benefit a large number of persons, without operating to the undue prejudice of others.'""'' It is not an unjust discrimination to give lower rates for each individual when several travel on one ticket than is accorded each individual traveling alone.""* § 186. Rebates. — A rebate within 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 tariffs of charges. The most frequent 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 re- bate was sometimes affected 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 are illegal and punishable under the Elkins law. The desire to obtain equality to shippers and to prevent favoritism was probably the strongest reason for the enactment of the Act to Regulate Commerce. By the unjust and preferential pay- ment of rebates the incomes of carriers were dissipated and the unfortunate 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. & H. R. Co. v. Interstate Commerce Commission, 200 U. S. 361, 391, 52 L. Ed. 515, 521, 26 Sup. Ct. Rep. 272, 277,'°' are apposite here : "It can not be challenged that the great purpose of the act to regulate commerce, whilst seeking to prevent unjust and unreasonable rates, was to secure equality of rates to all and to destroy favoritism, these last being accomplished Co., 187 Mass. 4^6, 73 N. E. 530; R. Co., 145 U. S. 263, 36 L. Ed. Commutation Tickets to Scliool 699, 12 Sup Ct. 844, 4 I. C. R. 92. Children, 17 I. C. C. 144. 205. New York, N. H. & H. R. 203. St. Louis, Mo. Illinois Pas- Co. v. Interstate Com. Com., 200 senger Fares, 41 I. C. C. 584, 600, U. S. 361, 391, 50 L. Ed. 515, 521, 601. 26 Sup. Ct. 272, 277. 204. Int. Com. Com. v. B. & O. 496 Equality in Rates. [§ 186 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 interpre- tation -which reasonably accomplishes the great public pur- pose which it was enacted to subserve * * * The all-em- bracing prohiV)ition against either directly or indirectly charg- ing less than the published rates shows that the purpose of the statute Avas 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. ease,""" said : "The Elkins act proceeded upon broad lines and was evid- ently intended to effectuate the purpose of Congress to re- quire 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 particu- lar 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 conces- sions and rebates from the iixed rates, duty posted and pub- lished." Emphasis was given to these principles by the Supreme Court in holding that land cannot be purchased and paid for by conceding to the grantor a rebate although the amount of the rebate is less than the value of the land. Said Mr. Justice Lamar in the opinion of the court: "The commerce act prohibits the payment of rebates, and its command can not be evaded by calling them differentials or concessions, nor by taking the money from the railroad itself or from a company that is proved to be the same as the railroad."'" 206. Armour Pack,ing Co. v. 207. Fouche River Lumber Co. United States, 209 U. S. 56. 52 v. Bryant Lumber Co., 230 U. S. L. Ed. 681, 28 Sup. Ct. 428. 816, 57 L. Ed. 1498, 33 Sup. Ct. <§ 187] Equality in Rates. 497 The law applies to demurrage charges^"* and each distinct shipment, transportation or transaction constitutes a separate oflPense.""" The venue of suits in prosecutions for granting rebates is in any federal district through which moves the transporta- tion on which the rebate is paid."" 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 rebat- ing."' § 187. Same Subject Corporation Punishable. — In New York C. & n. R. R. Co. V. United States,''' it was contended that the law could not impute to a corpforation the commission of a crime and that the conviction of a corporate common 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 trans- action, and can only act through its agents and officers, shall be punishable by fine because of the know^ledge 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 knowledge 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 887, citing Louisville & N. R. Co. United States v. Lehigh Valley V. Mottley, 219 U. S. 467, 55 L. R. Co., 184 Fed. 546. Ed. 397, 31 Sup. Ct. 265, 34 L. R. 209. United States v. Standard A. (N. S.) 671; United States v. Oil Co., 192 Fed. 438; New York Lehigh Valley R. Co., 220 U. S. C. & H. R. R. Co. v. United 257, 55 L. Ed. 458, 31 Sup. Ct. States, 212 U. S. 481, 53 L. Ed. 387; United States v. Union Stock 613, 29 Sup. Ct. 304. Yards Co., 226 U. S. 286, 57 L. 210. See note 185, supra, this Ed. 226, 33 Sup. Ct. 83, and re- chapter. versing Fouche Lumber Co. v. 211. Chicago B. & Q. R. Co. v. Bryant Lumber Co., 97 Ark. 623, United States, 157 Fed. 830. Af- 135 S. W. 790. fi'-med 209 U. S. 90, 52 L. Ed. 208. Lehigh Valley R. Co. v. 098, 28 Sup. Ct. 439. United States, 188 Fed. 879, at- 212. New York C. & H. R. R. firming United States v. Philadel- Co. v. United States, 212 U. S. phia & R. Co., 184 Fed. 543, and 481, 53 L. Ed. 613, 29 Sup. Ct. 304. 498 Equality in Rates. [§ 188 corporations no less than to those of individuals, it can not shut its ej'es to the fact that the great majority of business transactions in modern times are conducted through these bodies, and particularly that interstate commerce is almost entirely in their hands, and to give them immunity from all punishment because of the old and exploded doctrine that a corporation cannot commit a crime would virtually take away the only means of effectually controlling the subject-matter and correcting the abuses aimed at. "There can be no question of the power of Congress to regulate 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 can not 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 act in the premises." This section and the one preceding it are limited to the question of discrimination as the result of rebates. The pro- cedure for determining and punishing rebating will be more fully discussed in a subsequent chapter."" § 188. Summary. — Obviouslj^ many of the facts which must be considered in determining whether a particular rate is reasonable or unreasonable must also be considered in deter- mining whether or not a particular rate is unjustly discrimin- atory or unduly preferential. Some, therefore, of the prin- ciples discussed in section 131, supra, are applicable here. A common carrier performs a public function; the Gov- ernment permits the carrier to do what the Government itself could do. The charges exacted by the carrier are analogous to taxation. The Government taxes, that it may perform its governmental duties. The Government, it is true, exacts no profit for the service rendered, the common carrier using, private capital is permitted to receive, in addition to the actual cost of the service it performs, a fair return on the capital necessarily used to enable it to perform such service. The Government itself would, were it to undertake to perform the service directly, have to obtain capital to supply the 213. Sec. 371, post. § 188] Equality in Rates. 499 necessary facilities. The Government could furnish the serv- ice free to all, obtaining the cost thereof from general taxa- tion, or it could as with the mails make all who use the service pay therefor. This analogy between taxation and charges by common car- riers is sufficient to require that the rule of uniformity ap- plicable to taxation should be observed in fixing the charges which the common carrier may exact. But uniformity does not mean that every charge must be the same. It means no more than that under the same or simi- lar circumstances the charge exacted shall be guaged alike. There are different kinds of taxes, but there must be uni- formity in the tax on the same or a similar subject-matter. To get just uniformity, either in taxation or in charges by public service corporations, there must be classification ; classi- fication as to the service rendered considering the cost and extent thereof, and classification as to the value the service is to him for whom it is performed. It has been the aim of the author of this chapter to present the principles which have been applied in making this classi- fication of commodities and distinction in rates. That these principles must yield sometimes is true. That the known facts are not sufficiently comprehensive to justify definite generalizations and a fixed standard to be applied to the prob- lem, must be admitted. But the general rules which have been empirically deduced justify the statement of the Commission that "it is not fanciful to say that a schedule of rates may be made which will approach justice as between services." CHAPTER V. ENFORCEMENT BY THE COMMISSION OF THE ACT TO REGU- LATE COMMERCE. § 189. General Statement of the Functions of the Interstate Com- merce Commission. 190. Appointment and General Duties of the Commission. 191. Switch Connections. Duty of Carriers. 192. Switch Connections. Powers of the Commission. 193. Industrial Switches and Railways. 194. Switch Connections with Carriers by Water. 195. Through Routes. 196. Division of Joint Rates. 197. Allowances to Shippers for Services and Facilities. 198. Distribution of Cars. 198a. Furnishing Cars, Car Service. 199. Long and Short Haul Provisions, History of. 200. Relationship of Intermediate and Through Rates. 201. Water Competition. 202. Power of the Commission under the Fourth Section. 203. Ownership of Water Carriers by Railroads. 204. The Commission's Duties with Reference to Schedules of Rates. 204a. Bills of Lading. 205. Damages. 206. Damages — Power of the Commission to Make Award of. 207. Awards of Damages for Charging an Unjust and Unreasonable Rate. 208. Awards of Damages for Unlawful Discrimination. 209. Damages under the Fourth Section. 210. Damages for Misrouting. 211. Damages — General Statement. 212. Damages for Misquoting a Rate. 213. Damages, to Whom Paid. 214. Damages, by Whom Paid. 215. Damages — Protest Unnecessary. 216. Damages — Interest and Attorney's Fees. 217. Award of Damages an Inadequate Remedy. 218. Damages, Limitation on Complaint for. 219. General Investigation by tbe Commission. 220. Same Subject. Amendments of 1910 and 1920. 221. Commission May Ask the Aid of the Courts to Enforce the Law. 222. Commission Has Power to Prescribe Rates for the Failure. (50O) § 189] Of the Act to Regulate Commerce. 501 223. Suspension of Rates, Regulations and Practices. 224. Through Routes and JoJnt Rates. 225. Allowance for Services or Instrumentalities. 226. Powers Enumerated, Not Exclude Others. 227. Effect of Commission's Orders. 228. Commission's Control Over Its Orders. 229. Commission May Employ Attorneys. 230. Records of Commission. 231. Valuation of Railroad Property. 232. Valuation, How Made. 233. Finality and Effect of Valuation. 234. Office of Commission. 235. Annual Reports from Carriers. 236. Examiners. 23.7. Reports by the Commission. 238. Lake Erie and Ohio River Ship Canal. 239. Paftel Post. 240. Government Aided Railroads and Telegraph Companies. 241. Common Law Remedies. § 189. General Statement of the Functions of the Commis- sion. — In discussing the scope and validity of the Act to Regulate Commerce infra chapter two, it was seen that the Interstate Commerce Commission was an administrative body, v^ith 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 prescribing rates for the future. In the performance of its administrative duties, it exer- cises certain functions in the exercise of which it adopts forms and procedure similar to those in use by courts when enforc- ing the judicial powers of the government. "VVliile in a loose way it is frequently said that the Commission exercises quasi judicial powers, it cannot be said that any of the judicial powers conferred by the Constitution of the United States are, or can be, exercised by the Commission. Its duties under existing law naturally divide themselves into two distinct branches. The first of these are purely administrative in their nature. The second is the exercise of its delegated legislative power and consists of prescribing rules, regulations and rates for the future. Under the first head, upon complaint, the Commission, after hearing, may decide that the past practice of a carrier has not been in accord with the law. and it may determine that by such practices the complainant has bteen 502 Enforcement by the Commission. [^ 189 damaged in an amount which the Commission fixes. Its find- ings 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 the justice thereof or fears that the courts may do so. If obedi- ence 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 Commission. When the matter is brought to the at tention of the proper court in such a way as to invoke its action, a hearing is had de novo, the findings of the Com- mission being, by a rule of evidence prescribed by the legis- lative department, prima facie true. Exercising its full and unlimited judicial power, the court may give weight to the findings of the Commission like it might to any other admin- istrative body ; but the power to enforce the order is wholly in the courts. The Commission prescribes forms of accounting which the carriers must obey, prescribes the forms of tariffs and methods of publishing same, and makes conference rulings applicable to the general enforcement of the Act. By the Amendment of March 1, 1913, the Commission is directed to investigate, ascertain and report the value of all the property owned or used by every common carrier subject to the provisions of the commerce acts. The Transportation Act 1920 materially increases the pow- ers of the Commission, modifies the language of the former act as to existing poAvers, gives a right to initiate rates and adds the duty to prescribe minimum rates, makes more defi- nite the duty of the Commission in respect to giving railroads a "fair return" on investment, increases its duties as to the service and distribution of cars, changes from the principle of competition required by former laws, and adopts the principle of cooperation, and adds the right to supervise the issuance of securities and the increase or decrease of exist- ing facilities.^ 1. For an historical sketch of 1920 see articles by the writer former statutes and an analy- hereof Columbia Law Review, Bis of the Transportation Act March 1919, p. 47, ct scq; Rail- § 190] Of the Act to Regulate Commerce. 503 § 190. Appointment and General Duties of the Commission. • — The Interstate Commerce Commission is composed of eleven members, whose terms of officer are seven years each, and each of whom receives an annual salary of twelve thousand dollars. They are appointed by the President by and with the advice and consent of the Senate. Not more than six of the com- missioners may be of the same political party, and they may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. They shall not engage in any other business, vocation, or employment. The principle office of the Commission shall be in Washington, where its general ses- sions shall be held ; but whenever the convenience of the public or of the parties may be promoted, or delay or ex- pense 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 of the act. It shall inquire into the management of the business of all common carriers sub.ject to the act, and is authorized and required to enforce such act. 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 Commission shall be forthwith served by mailing to any one of the principal officers or agents of the carrier at his usual place of business a copy thereof; and the registry mail receipt shall be prima facie evidence of the receipt of such order by the carrier. It may suspend or modify its orders and grant re- hearings. It has power to require reports from ca^Vriei's subject to 'the act and to prescribe forms for accounting by carriers. It must itself make annual reports to Congress. § 191. Switch Connections — Duty of Carrier. — It is the duty of any common carrier subject to the provisions of the In- terstate Commerce Act, upon application of any lateral, branch line of railroad, or of any shipper tendering inter- state traffic for transportation, to construct, maintain, and op- erate upon reasonable terms a switch connection with any such lateral, branch line of railroad, or private side track which may 504 Enforcement by the Commission. [<§> 192 be constructed to connect with its railroad, where such connec- tion 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 to furnish cars for the move- ment of such traffic to the best of its ability without discrim- ination in favor of or against any such shipper." Under section one of the Act of March 4, 1887, as amended by the Act of June 29, 1906, the Supreme Court held that the Interstate Commerce Commission had power to compel switch connections with lateral branch roads only at the instance of shippers and that it had no power to compel switch con- nections on the application of a branch railroad.^ The amendment of June 18, 1910, however, gives the right to ''any lateral, branch line of railroad," as well as to any ship- per. In construing the words "lateral branch line," the Supreme Court gave as examples of such lines, "those that are depend- ent upon and incident to the main line — feeders, such as may be built from mines or forests to bring coal, ore or lumber to the main line for shipment," and the court held that the question of whether or not a particular line comes within the meaning of the statutory language must be determined by what the line is, and not by what it may become.* § 192. Switch Connections — Povrer of the Commission. — Should a carrier fail to perform the duty to make switch connections, on application therefor in writing by any ship- per or owner of such lateral, blranch line of railroad, such shipper or owner of such lateral, branch line of railroad, may make complaint, and the Commission shall hear and in- vestigate the same and shall determine as to the safety and practicability thereof and the justification and the' reasonable compensation therefor, and the Commission may make an road Herald April 1920, p. , 4. United States v. Baltimore et seq. & O. R. Co., 226 U. S. 14, 57 L. 2. Paragraphs 4 and 9 of Sec- Ed. 104, 33 Sup. Ct. 5, affirming tion 1 of Interstate Commerce Act Baltimore & O. R. Co. v. United sections 338, 344, post. States, 195 Fed. 962, Opinion 3. Interstate Com. Com. v. Commerce Court No. 60, p. 431. Delaware, L. & W. R. Co., 216 For order of the Commission U. S. 531, 54 L. Ed. 605, 30 Sup. see, Cincinnati & Columbus Trac- Ct. 415, tion Co. V. Baltimore & O. R. <§ 192] Of the Act to Regulate Commerce. 505 order directing the common carrier to comply with the pro- visions of the statute in accordance with such order.^ This provision is supplemented by the Transportation Act 1920 which authorizes the Commission, when in the public interest and practicable, to require that existing terminal facilities, including main line track or tracks for a reasonable distance, to be opened to a joint use under such terms and for such compensation as may be agreed on or fixed.* Wlien there is an application for a switch connection made as provided by statute and the evidence shows an existing siding from which interstate freight is tendered, that there is sufficient business to justify the construction and mainten- ance of the switch and the connection is reasonably prac- ticable and safe, the Commission will order a connection.^ There must, however, be an existing side track or lateral branch line of railroad with which the connection can be made,* and the Commission has no jurisdiction to enforce a contract for such connection.* The prohibition against requiring a carrier to give the use of its tracks, terminals and facilities to a competing car- rier, does not prevent the Commission in a proper case from requiring a carrier to receive cars from a connection for trans- portation over its tracks and terminals. Such a requirement when the haul is "a substantial part of a continuous trans- portation routing" and necessary to such movement, is a proper regulation of the bKisiness of the carrier and not an appropriation of terminal facilities for the use and benefit Co., 20 I. C. C. 486. Following Co., 26 I. C. C. 240, 243, 244; Louis- the Supreme Court see, St. Louis, ville Board of Trade v. L. & N. S. & P. R. Co. V. Peoria & P. U. R. Co., 40 I. C. C. 679, 688 and Ry. Co., 26 I. C. C. 226; Morris cases cited; Giiyton & Harring- Iron Co. V. Baltimore & 0. R. ton l\Iule Co. v. L. & N. R. Co., Co., 26 I. C. C. 240. 50 I. C. C. 546. 5. Par. 9 of section 1 as num- 7. Ridgewood Coal Co. v. Lehigh bered by Transportation Act Valley R. Co., 21 I. C. C. 183, 1920. 185. 6. Transportation Act 1920, 8. Winters Metallic Paint Co. section 405, paragraph 4 of sec- v. Chicago, M. & St. P. Ry. Co.. tion 3 of Interstate Commerce Act. 16 I. C. C. 687. section 347a, j)ost. See for old 9. Ralston Townsite Co. v. law Morris Iron Co. v. B. & O. R. 506 Enforcement by the Commission. [^ 193 of another road.^" For the transportation over its tracks the carrier performing the service is entitled to a reasonable coni- jiensation/^ The provision of Transportation Act 1920 under which a joint use of terminals may be required supersedes the former law prohibiting the requirement that a carrier should be com- pelled to give the use of its terminals. Under the amendment the use of terminals are not given; but may, in analogy to tlie right of eminent domain, be opened to a joint use upon fair compensation. § ]93. Industrial Switches and Railways. — The jurisdiction of the Commission to require switch connections includes the power and imposes the duty to regulate such connections. Many industries own private switch tracks connecting with a carrier ; some of the tracks privately owned have developed so far as to become incorporated as railways. That connec- tions may in proper cases be required to be made by the carriers with these industrial tracks or industrial railways has been shown in the preceding section. When such connections are made, cars are delivered from the line of the carrier to the industrial track or railway, and sometimes the line car- rier delivers incoming cars over and takes outgoing cars from the plant tracks. Obviously such delivery and receipt of cars is valuable to the industry and costs the carrier some- thing. Carriers have made allowances from their rates to such industries or to their subsidiary railways in the form of rate divisions, per diem reclaims, remission of car demurrage, furnace allowances, and have performed services without ad- ditional charges over the line rate by placing cars at points on the tracks or railways of the industry. Missouri Pac. Ry. Co., 22 I. C. C. Penn. Co. v. U. S. 236 U. S. 351, S54. 59 L. Ed. 616, 35 Sup. Ct. 370; 10. Grand Trunk R. Co. v. 111. Cent. R. Co. v. Railroad Com. Michigan Railroad Com., 231 U. of La., 236 U. S., 157, 59 L. Ed. S. 457, 58 L. Ed. 310, 34 Sup. Ct. 517, 35 Sup. Ct. 275. 152; Michigan C. R. Co. v. Michl- 11. So. Ry. Co. v. St. Louis Hay gan Railroad Com., 236 U. S. 615, & Grain Co., 214 U. S. 297, 53 59 L. Ed. 750. 35 Sup. Ct. 422; L. Ed. 1004, 29 Sup. Ct. 678. § 194] Of the Act to Regulate Commerce. 507 These allowances and remissions were discussed by the Com- mission in the First Industrial Kailways case/^ and held to be illegal, "Spotting cars" in so far as the phrase has a definite meaning, is the service performed by a line carrier of placing or receiving cars for a plant beyond the point of interchange between the rails of the carrier and the tracks of the in- dustry, and, as such practice is so defined, it was held illegal unless a reasonable charge was made for the service/^ In prior sections it has been shown that allowances some- times called absorptions, at other times called divisions, are not unlawful/* § 194. Switch Connections with Carriers by Water. — The Panama Canal Act gives jurisdiction to the Commission over interstate transportation "by rail and water through the Panama Canal or otherwise," and "of the carriers, both by rail and by water, which may or do engage in the same," and gives the Commission power to establish physical connections between the lines of the rail carrier and the dock of the water carrier at which interchange of passengers or property is to be made when such "connection is reasonably practicable" 12. Industrial Railways Case, Ry. Co., 18 I. C. C. 310. Com- 29 I. C. C. 212. merce Court reversed, Interstate 13. Industrial Railway Case, Com. Com. v. Atchison, T. & S. 29 I. C. C. 212, 234. Spotting F. Ry. Co., 234 U. S. 294, 58 L. was defined in a tariff suspended Ed. 1319, 34 Sup. Ct. 814; Sees, by the Commission as "service 170, 171, supra. Tap Line Cases, beyond a reasonable convenient 234 U. S. 1, 58 L. Ed. 1185, 34 point of exchange." In a brief it Sup. Ct. 741; Manufacturers' was defined as "placing a car at Railway Co. v. St. L. I. M. & S. a particular spot." See also Ry. Co., 32 I. C. C. 578; Indus- Alan Wood Iron & Steel Co. v. trial Railways Case, 32 I. C. C. Pennsylvania R. Co., 22 I. C. C. 129; Car Ferry Allowance at Che- 540; National Tube Co. v. Lake boygan, 32 I. C. C. 578; Trap or Tex. R. Co., 56 I. C. C. 272. Ferry Car Service Charges, 34 I. 14. Atchison, T. & S. F. Ry. Co. C. C. 516; Second Industrial Rail- V. Interstate Com .Com., 188 ways Case. 34 I. C. C. 596; Car Fed. 229 and 929, Opinion Com- Spotting Charges, 34 I. C. C. 609; merce Court No. 2, p. 3, enjoin- Manufacturer's R. Co. v. United ing the order of the Commission States, 246 U. S. 457, 62 L. Ed. in Associated Jobbers of Los 831, 38 Sup. Ct. 383. Section 170 Angeles v. Atchison, T. & S. F. and 171, supra. 508 Enforcement by the Commission. [^ 195 and "can be made with safety to the public, and the aniiount of business to be handled is sufficient to justify the outlay." ^^ It was argued before the Commission that the words "or otherwise" modified the phrase "by rail and water" and not the phrase "through the Panama Canal." This construction was not adiopted and it was held that by reason of the words "or otherwise," the Commission had jurisdiction to establish through routes and joint rates between rail carriers and water carriers, those operating tlirough the Canal and those operat- ing on other waters. Not to adopt the construction ^given the statute by the Commission would leave the words "or other- wise" mere surplusage, to do which would violate the funda- mental canons of statutory construction." The change made by Transportation Act 1920 in this pro- vision makes more specific than the old law, the dock at which interchange may be required. Paragraph 4 of section 15 as amended provided, as the Commission had already held in the Baltimore and Carolina Steamship Case, note 16, supra, that the short haul limitation of section 15 did not apply when one of the connecting "carriers is a water line." § 195. Through Routes. — It is made the duty of the carriers subject to the Act "to establish through routes."" The Commission may, after hearing on a complaint, estab- lish through routes and joint rates as the maximum to be charged and prescribe the division of such rates 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 the Act, and the carriers complained to have re- fused or neglected voluntarily to establish such through routes and joint rates. This jurisdiction exists when one of the carriers is a water line. 15. Act March 24, 1912, Sec. Bowling Green Bus. Men's Pro- 377, post. tective Asso., v. L. & N. R. Co., 16. Augusta & SavanAali 31 I. C. C. 1; Pacific Nav. Co., v. Steamboat Co. v. Ocean Steam- S. P. Co., 31 I. C. C. 472; Port ship Co., 26 I. C. C. 380, 385; Fed- Huron & Duluth S. S. Co. v. P. eral Sugar Refining Co. v. Central R. Co., 35 I. C. C. 475; Baltimore R. Co., of New Jersey, 35 I. C. C. & Carolina S. S. Co. v. A. C. L. 488; Decatur Navigation Co. v. R. Co., 49 I. C. C. 176, 179. L. & N. R. Co.. 31 I. C. C. 281; 17. Sec. 1 of Act, Sec. 338, post. § 195] Of the Act to Regulate Commerce. 509 The Panama Canal Act, as shown in the preceding section, extended the power of the Commission over transportation by water and also gave the Commission power to establish through routes and maximum joint rates between and over such rail and water lines, and to determine all the terms and conditions under which such lines shall be operated in the handling of the trafific embraced/" The Amendment of June 18, 1910, omitted from the statute the words, ''provided no reasonable or satisfactory through route exists." Under the old law, the non-existence of a rea- sonable or satisfactory through route was jurisdictional, and M^here there was such through route the Commission had no power to order another.^" Under the old law it was said : ''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 estal^lished for the movement 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."" A limitation as to the character of the through route was prescribed by the Amendment of 1910 by the provision that 18. A,ct of August 24, 1912, 222; Southern California Sugar Sees. 376, 377, jwst : Augusta & Co. v. San Pedro, L. A. & R. Savannah Steamboat Co. v. Ocean Co., 19 I. C. C. 6; Cedar Hill Steamship Co., 26 I. C. C. 380; Coal & coke Co. v. Colorado & Truckers Transfer Co. v. Charles- S. Ry. Co., 17 I. C. C. 479; ton & W. C. Ry. Co., 27 I. C. C. Spring Hill Coal Co. v. Erie R. 275. See also note 16, supra. Co., 18 I. C. C. 508; Pacific Coast 19. Interstate Com. Com. v. Lumber Mnfg. Assn. v. Northern Northern Pac. Ry. Co., 216 U. Pac. R. Co., 14 I. C. C. 51, 53. Ct. 417; Enterprise Transporta- 20. Cardiff Coal Co. v. Chicago, tion Co. V. Pennsylvania R. Co., M. & St. P. Ry. Co., 13 I. C. C. S. 538, 54 L. Ed. 608, 30 Sup. 460. As sustaining the text see 12 I. C. C. 326; Enterprise P. R. Co. v. United States, 236 Transportation Co. v. Pennsyl- U. S. 351, 59 L. Ed. 616, 35 Sup. vania R. Co., 16 I. C. C. 219, Ct. 370. 510 Enforcement by the Commission. [§ 195 no compan.y without its consent should be required to embrace in such route substantially less than the entire length of its railroad and of any intermediate railroads operated in con- junction and under a common management or control there- with.""' By the Transportation Act 1920 this limitation does not apply when one of the carriers is a water carrier/^ While the limitation is stated positively, a carrier could not use it to discriminate in violation of other provisions of the Act/^ nor is it a protection to the carrier in charging an un- reasonable rate between two given points. It means that a carrier "shall not be deprived of a haul which it is capable of providing by a reasonably direct route."* Other than this limitation under the law as it now exists, the Commission has discretionary power. "^ The Commission refused to establish a through route with tugs and barges operated by the owner of practically the whole freight which would use the route if one were estab- lished f^ but the mere fact that only one shipper may at the outset use the connection, does not prevent the connection from having a public purpose.^^ The Commission having no .jurisdiction of railroads and steamship lines located, owned and operated entirely in an adjacent foreign country, cannot establish through routes therewith."^ 21. Sec. 401, post, for full text 238, Commerce Court Opinion of provision. No. 55, p. 453, 461, not appealed. 22. Transportation Act 1920, For report of the Commission in Sec. 418; Int. Com. Act, Sec. 15, the same case see: Crane Iron par. 4. Works v. Central R. Co. of New 23. Proposition urged but not Jersey, 17 I. C. C. 514; and Crane decided, Hughes Creek Coal Co. R. Co. v. Philadelphia & R. Ry. V. Kanawha & M. Ry. Co., 29 I. Co., 15 I. C. C. 248. C. C. 671, 679. 26. Gulf Coast Navigation Co. 24. Meridan Fertz. Factory v. v. Kansas City Sou. Ry. Co., 19 Texas & Pac. Ry. Co., 26 I. C. C. I. C. C. 544. 351, 352. 27. Union Lime Co. v. C. & N. 25. Truckers Transfer Co. v. W. Ry. Co., 233 U. S. 211, 58 L. Charleston & W. C. Ry. Co., 27 Ed. 924, 34 Sup. Ct. 522; Federal I. C. C. 275, 277, quoting the Sugar Refining Co. v. C. of N. Commerce Court in Crane Iron J. Ry. Co., 35 I. C. C. 488. Works V. United States, 209 Fed. 28. Humbolt Steamship Co. v. § 196] Of the Act to Eegulate Commerce. 511 Agreements between connecting railway and steamship car- riers to establish through routes and joint rates and to refuse such an arrangement with other connecting carriers, resulting in high and discriminatory charges, with the intent and result of eliminating competition, violates the anti-trust laws of the United States. AATiether or not the giving or refusing joint traffic arrangements is in violation of the commerce acts, is a question which the courts have no jurisdiction to determine in advance of action by the Interstate Commerce Commission.^' The broad purpose of this provision is well stated by the Commission as follows : ''The railroads of the country are called upon to so unite themselves that they will constitute one national system; they must establish through routes, keep these routes open and in operation, furnish the necessary facilities for transpor- tation, make reasonable and proper rules of practice as be- tween themselves and the shippers, and as between each other."'" A carrier publishing a joint through rate is responsible therefor.'^ Electric railways are entitled to through routes and joint rates. ^^ § 196. Division of Joint Rate. — When joint rates are estab- lished by order of the Commission, or otherwise, and carriers fail to agree among themselves upon the apportionment or di- vision thereof, the Commission may, after hearing, prescribe the just and reasonable proportion of such joint rate to be re- ceived by each carrier party thereto.'^ Speaking of this power White Pass & Yukon Route, 25 32. Louisville Board of Trade I. C. C. 136. V. Indianapolis, C. & S. T. Co., 27 29. United States v. Pacific & I. C. C. 499, and cases cited. Arctic Ry. Nav. Co., 228 U. S. That a through route could not 87, 57 L. Ed. 742, 33 Sup. Ct. 443. be made with the Columbus 30. Missouri & Illinois Coal Co. Traction Co. was placed on the V. Illinois Cent. R. Co., 22 I. C. ground that such company was C. 39, 45. not a lateral branch road. United 31. Black Horse Tob. Co. v. II- United States v. Baltimore & O. linois Cent R. Co., 17 I. C. C. R. Co., 226 U. S. 14, 57 L. Ed., 104, 588; Texico Transfer Co. v. 33 Sup. Ct. 5. Louisville & N. R. Co., 20 I. C. 33. Sees. 397, and 400, post. C. 17. 512 Enforcement by the Commission. [^ 197 Mr. Commissioner Harlan, delivering the opinion of the Com- mission, said i''* ''The phrase 'the jnst and reasonable proportion of such joint j-ate to be received by each carrier' necessarily implies that it is the duty of the commission in fixing divisions to take into consideration all the circumstances, conditions, and proper adjustment of the situation as between the two roads, and precludes the idea that joint rates must be divided be- tween the participating carriers on a mileage or any other fixed basis." In note 34, suprn, the opinion was expressed in the second edition of this book that the Commission was competent to prescribe divisions of rates even though the rates had not been established by it. At first the Commission did not take this view, but subsequently it adopted the correct view.*^ The Transportation Act 1920 ^'' specifically gives the Commis- sion the power which it had already come to hold that it possessed. § 197. Allowance to Shippers for Services and Facilities. — The statute reads:" "If the owner of property transported under this Act di- rectly or indirectly renders any service connected Avifh such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is 34. star Grain & Lumber Co. v. 35. Morganton & Kingwood Atchison, T. & S. F. Ry. Co., 14 Divisions, 40 I. C. C. 509, 49 I. I. C. C. 364, 370. Without giving C. C. 540. For cases illustrating force to the vi^ords "or other- the exercise of the power see wise" in the statute the Com- Western P. R. Co. v. S. P. Co. mission expressed a doubt as to 55 I. C. C. 71; Chestnut Ridge its power to prescribe divisions Ry. Co. v. United States 247 Fed. of rates not fixed by it. Re 791. Wharfage Charges at Galveston, 36. Transportation Act 1920, 23 I. C. C. 535, 546. Giving force Sec. 418; Int. Commerce Act Sec. to all the words of the statute 15, par. 6. there seems to be no room to 37. Sec. 15 being added thereto doubt the jurisdiction of the by Act June 29, 1906, post, Sec. Commission in all cases where 404. there is a failure of the carriers to agree. 37 I. C. C. 231. § 11)7] Of the Act to Recui^ate Commerce. 513 just and reasonable, and the Commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and to fix the same by appropri- ate order." This statute has received consideration in many cases. It is not open to question that when a shipper renders services con- nected with the transportation of his goods or furnishes any instrumentality used therein, a charge and allowance therefor is recognized by the law. This charge and allowance must be just and reasonable, that is, it must not be too high nor dis- criminate against another shipper rendering a like service or furnishing a like instrumentality."* The Commission has held that this charge and allowance must be limited to the cost of the service.'"' The Commission in the Sugar Lighterage case'" did not deny the vadidity or application of the statute, but held the the fact that one sugar refinery owned and operated a dock and ter- minals for the railroad did not justify an allowance thereto when such allowance was denied another refinery owning no cS. Central Stock Yards Co. v. Co. v. Pennsylvania R. Co., 3 I. Louisville & N. R. Co., 67 Fed. C. C. 577: In re Transportation 339; Railroad Cora, of Kentucky of Fruit, 10 I. C. C. 360; Peavey v. Louisville & N. R. Co., 10 I Co. v. Union Pac. R. Co. (C.C.) S. 568, 48 L. Ed. 565, 24 Sup. Ct. 176 Fed. 409, affirmed 222 U. S. Louisville & N. R. Co., 192 U. 42, 56 L. Ed. 83, 32 Sup. Ct. 22; C. C. 173; Cattle Raisers Assn. Interstate Com. Com. v. Diffen- V. Chicago, B. & Q. R. Co., 11 baugh, 222 U. S. 42, 56 L. Ed. 8S, Ed. 73, 11 Sup. Ct. 461; Butch- 32 Sup. Ct. 22; Fouche River ers, etc., Stock Yards Co. v. Lumber Co. v. Bryant Lumber 35, 14 C. C. A. 290; United States Co., 230 U. S. 816, 57 L. Ed. 1498, V. Keith, 139 U. S. 128. 35 L. 33 Sup. Ct. 887; Mitchell Coal R. A. 213, affirmed, 192 U. S. & Coke Co. v. Pennsylvania R. I. C. C. 277; Central Stock Yards Co., 230 U. S. 247, 57 L. Td. 1472, Co. V. Louisville & N. R. Co., 118 33 Sup. Ct. 916. Fed. 113, 55 C. C. A. 63, 63 L. 39. Re Allowances to Elevators, 568, 48 L. Ed. 565, 24 Sup. Ct. 12 I. C. C. 85; Federal Sugar Re- 339; Covington Stock Yards Co. fining Co. v. Baltimore & 0. R. V. Delaware, L. & W. R. Co. (C. Co., 17 I. C. C. 40, 47. C), 40 Fed. 101; Consolidated 40. Federal Sugar Refining Co. Fordg. Co. V. Southern Pac. Co., v. Baltimore & O. R. Co., 20 I. 9 I. C. C. 182; Excursion Car C. C. 200. 514 Enforcement by the Commission. [§ 197 such terminals but tendering sugar brought by boat to the same pier as that to which the first company brought its sugar. The issue of law in this case was therefore whether or not undue discrimination existed. This issue of law was determined by the Commerce Court differently from the Commission. The Commerce Court said :" "AVe find Arbuckle Bros, owning the Jay Street terminal, used as a public terminal of petitioners within the light'Crage limits. We find the Federal Sugar Refining Company, with its refinery at Yonkers, 10 miles north of the lighterage limits, owning and operating no public terminal for petitioners, and tendering petitioners no freight at any of their public ter- minals. So that we cannot see how any violation of either section 2 or section 3 can be predicated of the facts stated in the record." The Supreme Court held there was no undue discrimination and affirmed the decision of the Commerce Court.'' The Supreme Court held allowances to grain elevators proper,'" but that such allowances should be free from dis- crimination.*^ The so-called tap line allowances or divisions to short roads owned or controlled by a shipper must be without discrimina- tion, otherwise, said the Supreme Court, "it amounts to a re- bate."" "What this allowance means Avas considered and discussed by the Commission in the tap line case.'" The Supreme Court reversed the order of the Commission and held that tap line allowances were legal. '^ Industrial railways present similar questions. These have been discussed sections 171 & 193 supra. 41. Baltimore & O. R. Co. v. dike, 222 U. S. 215, 56 L. Ed. 171, United States, 200 Fed. 779, 32 Sup. Ct. 39. Opinion Commerce Court No. 45. Illinois Cent. R. Co. v. In- 38, p. 499. terstate Com. Com., 206 U. S. 42. United States v. Baltimore 441, 444, 51 L. Ed. 1128, 27 Sup. &_ O. R. Co., 231 U. S. 274, 58 Ct. 700. L. Ed. 218, 34 Sup. Ct. 75. 46. Tap Line Case, 23 I. C. C. 43. Interstate Com. Com. v. Dif- 277 and 549 and see section 170, fenbaugh, 222 U. S. 42, 56 L. Ed. supra. 83, 32 Sup. Ct. 22. 47. United States v. Louisiana 44. Union Pac Ry. Co. v. Up- & P. R. Co. — Tap Line Cases, 234 § 198] Of the Act to Eegulate Commerce. 515 The meaning of the word "transportation" in this connec- tion was defined by District Judge Rellstab in an opinion which as to this question seems to be comprehensive, clear and accurate. Under his definition, draying sugar from a refinery to a railroad was not transportation nor service in connection therewith within the legislative meaning, but was a drayage service falling normally upon the shipper." The decision of Judge Rellstab was reversed, but the opinion on appeal is not inconsistent with the definition of the court below, but is ex- plainable on the theory that the Circuit Court of Appeals held that a payment made to all in like condition was not a rebate, whether an allowance within the meaning of section 15 or not/" § lf'8 Distribution of Cars.— Transportation includes cars and other vehicles and all instrumentalities and facilities of shipment or carriage, and it is the duty of every carrier sub- ject to the provisions of the Act to Regulate Commerce to pro- vide and furnish transportation. The Commission is given jurisdiction to enforce this duty. AVhere carriers fail to fur- nish cars without discrimination this jurisdiction may be in- volved that the governmental power of regulation may be used in compelling a just and equal distribution of cars and the prevention of an unjust and discriminating one. In determining whether a particular car distribution is just and equal or unjust and discriminatory, the Commission may consider the producing capacity of the shippers and all cars used in the transportation Avhether private cars or cars used by the carrier for its own fuel, and the courts have no juris- diction over the question until after action thereon by the Commission.^" U. S. 1, 58 L. Ed. 1185, 34 Sup. Angeles v. Atchison, T. & S. F. Ct. 741, 34 I. C. C. 116. Ry. Co., 18 I. C. C. 310. Com- 48. American Sugar Refining Co. merce Court reversed, Interstate V. Delaware, L. & W. Ry. Co., Com. Com. v. Atchison, T. & S. 200 Fed. 652. See also, Atchl- F. Ry. Co., 234 U. S. 294, 58 L. son, T. & S. F. Ry. Co. v. Ed. 1319, 34 Sup. Ct. 814. Interstate Com. Com., 1S8 Fed. 49. American Sugar Refining Co. 229 and 929, Opinion Com- v. Delaware, L. & W. Ry. Co., merce Court No. 2, p. 3, enjoin- 207 Fed. 733, 125 C. C. A. 251. ing the order of the Commission 50. Interstate Com. Com. v. II- in Associated Jobbers of Los linois Cent. R. Co., 215 U. S. 452, 516 Enforcement by the Commission. [§ 198A Where, however, the question involved is not the adminis- trative question of what is a reasonable rule, but the judicial question of whether or not the rule in force has been complied with, the courts have jurisdiction without prior action by the Commission/' § 198A. Furnishing Cars — Car Service. — The duty to fur- nish cars and the limitations in respect thereto on the power of the Commission was discussed in sections 24 to 26, supra. The Transportation Act 1920 gives the Commission powers properly withihn its functions over car service/" The method of exercising these powers is similar to the procedure adopted in enforcing the other powers of the Commission/^ § 199. Long and Short Haiil Provisions, History of. — Sec- tion four of the original Act lO Regulate Commerce''* prohib- ited "under substantially similar circumstances and condi- tions" a greater charge for a shorter than for a longer dis- tance over the same line in the same direction, the shorter be- ing included wathin the longer distance. The proviso to this section gave power to the Commission to relieve carriers from the requirements thereof. Judge Cooley in construing this section and provision an- nounced principles which may be quoted, as such principles finally became the settled construction of the law. He said /^ 54 L. Ed. 280, 30 Sup. Ct. 155; ing Co., 2?.8 U. S. 456, 59 L. Ed. Interstate Com. Com. v. Chicago 1406, 35 Sup. Ct. 896. & A. R. Co., 215 U. S. 479, 54 52. Transportation Act 1920, L. Ed. 291, 30 Sup. Ct. 163; Bal- Sec. 402; Interstate Commerce timore & O. R. Co. v. United Act, Sec. 1, paragrapli 10 to 17, States ex rel. Pitcairn Coal Sees. 344a to 344h, post. Co., 215 U. S. 481, 54 L. Ed. 292, 53. See Car Supply Investiga- 30 Sup. Ct. 164; Vulcan Coal tion, 42 I. C. C. 657, and comments Mining Co. v. I. C. R. Co., 33 of Mr. Commissioner McChord 47 I. C. C. 52. I. C. C. 760, et seq. 51. Morrisdale Coal Co. v. Penn. 54. Act. Feby. 4, 1887, Chap. 104, R. Co., 230 U. S. 304, 57 L. Ed. 24 Stat. L. 379 U. S. Comp. Stat. 1474, 33 Sup. Ct. 938; Penn. R. 1916 Sections 8563 et seq. 3 Fed. Co. V. Puritan Coal Co., 237 U. Stat. Ann. 809, et seq. See post S 121, 59 L. Ed. 867, 35 Sup. Ct. Sections 348 to 351. 484; 111. C. R. Co. v. Mulberry 55. Re Petition Louisville & N. Hill Coal Co., 238 U. S. 275, 59 R. Co., and Southern Pacific Rail- L. Ed. 1306, 35 Sup. Ct. 760; Penn. way and Steamship Co., 1 I. C. C. R. Co. V. Clark Bros. Coal Min- 31, 57, 1 I. C. R. 278. § 199] Op the Act to Regulate Commerce. 517 "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 permissio)i 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 conditions ; and, therefore, if in any case the carrier, without first obtaining an order of relief, shall depart from the general rule, its doing so will not alone convict it of illegality, since if the circumstances and conditions of the two hauls are dis- similar the statute is not violated. "Should an interested party dispute that the action of the carrier was warranted, an issue would be presented for ad- judication, and the risks of that adjudication the carrier would necessarily assume. The later clause in the same sec- tion, which empowers the Commission to make orders for re- lief in its discretion, does not in doing so restrict it to a find- ing of circumstances and conditions strictly dissimilar, but seems intended to give a discretionary 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 section may be en- forced without serious embarrassment." In a later case the Commission refused to follow the opinion of Judge Cooley," but subsequently the Supreme Court adopted the Cooley rule," with Mr. Justice Harlan vigorously 56. Railroad Com. of Georgia, N. W. Ry. Co., 167 U. S. 447, 42 Trammell et al. v. Clyde S. S. L. Ed. 231, 17 Sup. Ct. 887: Int. Co., 5 I. C. C. 324, 4 I. C. R. Com. Com. v. Detroit, G. H. & 120, 150. M. Ry. Co., 167 U. S. 633, 42 L. 57. The history of the judicial Ed. 306, 17 Sup. Ct. 986; Louis- construction appears from the ville & N. R. Co. v. Behlmer, 175 following cases: Int. Com. Com. U. S. 648, 44 L. Ed. 309, 20 Sup. V. Alabama M. R. Co., 168 U. Ct. 209; East Tenn., Va. & Ga. S. 144, 42 L. Ed. 414, 18 Sup. Ct. Ry. Co. v. Int. Com. Com., 181 45; Int. Com. Com. v. Cincinnati, U. S. 1, 45 L. Ed. 719, 21 Sup. N. O. & T. P. Ry. Co., 162 U. Ct. 516. See also Int. Com. Com. S. 184, 40 L. Ed. 935, 16 Sut>. v. Clyde S. S. Co., 181 U. S. 29, Ct. 700; Parsons v. Chicago & 45 L. Ed. 729, 21 Sup. Ct. 512; 518 Enforcement by the Commission. [^ 200 dissenting. It was held that the burden of proof to show dis- similarity of circumstances was on the carrier, and that "line" used in the statute meant a physical line and not a mere business arrangement. § 200. Relationship of Intermediate and Through Rates.— The amended fourth section also makes it unlawful "to charge any greater compensation as a through route than the aggre- gate of intermediate rates subject to the provisions" of the Act to Regulate Commerce. This rule but makes statutory what was a general principle applied by the Commission. § 201. Water Competition. — The second paragraph of sec- tion four of the amended Act provides : "Whenever a carrier by railroad shall in competition with a water route or routes reduce the rates on the carriage of any species of freight to or from competitive points, it shall not be permitted to increase such rates unless after hearing by the Commission it shall he found that such proposed increase rests upon changed conditions other than the elimination of water competitioii." § 202. Power of the Commission under the Fourth Section. — The fourth section prohibits three things, (a) a greater charge for a shorter than a longer haul under the circum- stances named, (b) a greater charge for a through route than the aggregate of the intermediate rates subject to the Act, (c) an increase of rates which had been lowered in competition with water routes. These provisions leave carriers no discretion. They must be obeyed unless the Commission orders otherwise. The ex- ceptions to this absolute provision must be such as the Com- mission may prescribe. This is the fundamental diflference between the old section as construed and the present law. Int. Com. Com. v. Louisville & N. & D. R. Co., 2 I. C. C. 304, 2 I. R. Co., 190 U. S. 273, 47 L. Ed. C. R. 193: Boston & A. R. Co. 1047, 23 Sup. Ct. 687; Brewer v. v. Boston & L. R. Co., 1 I. C. C. Central of Ga. R. Co., 84 Fed. 158, 1 I. C. R. 500, 571; Daniels 258; Int Com. Com. v. Western v. Chicago R. I. & P. R. Co., 6 & A. R. Co., 88 Fed. 186; Spartans- I. C. C. 458, 476. See sections 152 burg Board of Trade v. Richmond to 155, supra and 348 to 351, post. § 202] Of the Act to Regulate Commerce. 519 The power is given the Commission upon application, after investigation, to authorize the carrier "to charge less for longer than for shorter distances," and to "prescribe the ex- tent to which such designated common carrier may be re- lieved from the operation of the section." The provision giving the right to prescribe the extent of re- lief which may be granted, might with reason be construed as being limited by the language giving authority to "charge less for longer than for shorter distances;" although the prac- tice of the Commission has been to relieve from the provision relating to through routes and aggregate intermediate rates as well as limiting the relation of charges in the long and short haul clause. Eates lawfully in existence when the amended law was passed were not required to l)e changed prior to the expira- tion of six months after such time, nor then, when application for relief was filed, "until a determination of such application by the Commission." The Commission also has power to permit an increase of rates loAvered hi meet water competition "upon changed condi- tions other than the elimination of water competition." In determining its power under this statute the Commission held the law constitutional, that the provision for exceptions to the general clause did not give the Comnussiori arbitrary or absolute power, that the burden was on the carrier to show facts authorizing an exception to the general rule, and that the object of the law was to make "a rule of well nigh univer- sal application," deviation from which could only be au- thorized "to meet transportation circumstances which are be- yond the carrier's control," and then only to the extent necessary to meet such conditions.^** The orders of the Com- mission in the cases in which these principles were announced were set aside by the Commerce Court. ^° Upon appeal the Supreme Court reversed the Commerce Court and sustained the jurisdiction of the Commission."" 58. Railroad Com. of Nevada v. v. United States, 191 Fed. 856, Southern Pac. Co., 21 I. C. C. 329, Opinion Commerce Court Nos. 341; Spokane, City of, v. North- 50, 51, p. 229. ern Pac. R. Co., 21 I. C. C. 400. 60. United States v. Atchison, T. 59. Atchison, T. & S. F. Ry. Co. & S. F. Ry. Co., Intermountain 520 Enforcement by the Commission. [§ 203 The further limitations on the right of the Commission to grant relief from the long-and-short haul provision of section 4 contained in Transportation Act 1920 are discussed in sec- tions 152 to 155, supra. § 203. Ownership of Water Carriers by Railroads. — The Panama Canal Act makes it unlawful after July 1, 1914, for "any railroad company or other common carrier subject to the act to regulate commerce to own, lease, operate, control, or have any interest whatsoever (by stock ownership or other- wise, either directly, indirectly, through any holding com- pan3% or by stockholders or directors in common, or in any other manner) in any common carrier by water operated through the Panama Canal or elsewhere with which said rail- road or other carrier aforesaid does or may compete for traffic or any vessel carrying freight or passengers upon said water route or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic ; and in case of the violation of this provision each day in which such violation continues shall be deemed a separate offense." Jurisdiction was given the Commission after hearing "to determine questions of fact as to the competition or possibility of competition." This determination was authorized to be made on the application of the carrier, or shipper, or on the initiative of the Commission itself, and in all cases the Com- mission's order is final."^ If an "existing specified service by water other than through the Panama Canal is being operated in the interest of the public and is pf advantage to the convenience and com- merce of the people," and if "such extension will neither ex- elude, prevent, nor reduce competition on the route by water," the Commission may extend the time beyond July 1, 1914, under the conditions prescribed in the statute.'^ The principles upon which the Commission has acted in de- termining applications under this statute were stated in Cases, 234 U. S. 47(5, 58 L. Ed. 61. Act August 24, 1912; Sees. 1408, 34 Sup. Ct. 986; Sec. 154, 353, 354, post. ante. 62. Act August 24, 1912; Sec. 355, i)ost. § 204] Of the Act to Regulate Commerce. 521, Application of Soutlierii Pacific Co. in re Operation of Steam- ship Company/^ § 204. The Commission's Duty with Reference to Schedule 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 whicli they have established a through route and joint rates. Changes in these schedules cannot 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 inspection shall be prepared and arranged, and may change the form from time to time as shall be found expedient. Under the power given with respect to the schedules of rates to be charged by common carriers it issues administrative orders from time to time. Carriers are prohibited from engaging or participating in interstate transportation "unless the rates, fares, and charges * * * have been filed and published" as provided by the statute. The Commission has power to reject tariffs under certain conditions,"* and those so rejected are void. Tariffs provisions relating to interchangeable mileage tickets must likewise be published.*"^ Discrimination was one of the evils most complained of prior to the original Act to Regulate Commerce and since, 63. Sec. 355, and see Application 64. Sec. 6 of Act; Sees. 364 and S. P. Co. re Operation S. S. Co., 366, 2>ost; Brown & Sons Lumber 32 I. C. C. 692. S. P. Co. Own- Co. v. L. & N. R. Co., 37 I. C. C. ership of Oil Steamers, 34 I. C. 507, 509. C. 377; Steamer Lines on Ches.H- 65. Sec. 22 of Act; Sec. 444, peake Bay, 35 I. C. C. 692. aiid post. see post section 353 and auJ o tations. 522 Enforcemen • by the Commission. [§ 204 and that Act and the supj lemental and amendatory Acts have been framed to aflford an effective means for reducing the wrongs resulting from unjust discrimination and undue pre- ference. One of the means of effectuating this purpose, is that of placing upon all carriers the positive duty of establish- ing, filing and publishing schedules of reasonable rates with a uniform application and of a definite meaning, and of main- taining and collecting such rates so long as they remain un- altered in the manner provided by law."" Where the tariff shows no joint through rate, carriers par- ties to a through bill of lading must collect the sum of the local rates shown by the local tariffs." Where an agent of a carrier gives a shipper a rate less than that prescribed in the legally filed tariff, the shipper must nevertheless pay the full tariff rate,"* and a rate in a bill of lading less than the tariff rate will 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 Mil of lading specified."" That a schedule of rates has been duly filed will not prevent the Commission from declaring such rates unreasonable and awarding reparation for the amount charged and collected in excess of what was a reasonable rate.^" 66. Texas & Pac. Ry. Co. v. Abi- U. S. 573, 56 L. Ed. 556, 32 Sup. lene Cotton Oil Co., 204 U. S. Ct. 316; New York C. & H. R. 426, 51 L. Ed. 553, 27 Sup. Ct. R. Co. v. United States, 212 U. 350; Cincinnati, N. O. & T. P. S. 500, 53 L. Ed. 624, 29 Sup. Ry. Co. V. Interstate Com. Com., Ct. 309; but the Act of 1910 pro- 162 U. S. 184, 40 L. Ed. 935, 16 vides a penalty for misquoting a Sup. Ct. 700, 5 I. C. R. 391, 167 rate. Sec. 180, ante. Sees. 205, 212, U. S. 479, 42 L. Ed. 243, 17 Sup. and 368, post. Ct. 896. 69. Gulf C. & S. F. Ry. Co. v. 67. United States v. New York Hefley, 158 U. S. 98, 39 L. Ed. C. & H. R. R. Co., 212 U. S. 509, 910, 15 Sup. Ct. 802; Spratlin v. 53 L. Ed. 629, 29 Sup. Ct. 313. St. L. & S. W. Ry. Co., 76 Ark. 68. Texas & Pac. Ry. Co. v. 82, 88 S. W. 836; St. L. & S. W. Mugg, 202 U. S. 242, 50 L. Ed. Ry. Co. v. Carden, 34 S. W. (Tex) 1011, 26 Sup. Ct. 628: Illinois C. 145. R, Co. V. Henderson Elevator Co., Galley 181 26367. Templeton, 226 U. S. 441, 57 L. Ed. 290, 33 70. Nicola, Stone & Myers Co. v. Sup. Ct. 176; Kansas City Sou. Louisville & N. R. Co., 14 I. C. C. Ry. Co. V. Albers Com. Co., 223 R. 199, 204. § 204A] Of the Act to Regulate Commerce. 523 Transportation Act 1920'' requires common carriers "by water in foreign commerce whose vessels are registered under the laws of the United States" to file certain schedules and authorizes the Commission to make "rules and regulations with respect thereto." § 204. A. Bills of Ladings. — In a comprehensive and able opinion i\Ir. Commissioner Wooley in announcing the judg- ment of the Commission, after quoting parts of Sections 12, and 35 of the Interstate Commerce Act. said:" "Thus th*» Commission has power and authority under the Act to deter- mine the reasonableness of rules, regulations, and practices of the carriers, and to require them to cease and desist from the enforcement of rules and regulations, and the continuance of practices found to be unreasonable or unjustly discrimina- tory, or unduly prejudicial. And herein lies the Commission's power to lay hands upon the 'issuance, form and substance' of bills of lading. The act specifically requires carriers subject thereto to issue bills of lading. The Commission has undoubted authority to enforce this requirement in a proper proceeding. It can require carriers to file with it the rules and regulations which they write into their bills of lading. It can, by due process, require that uniform rules and regulations be adopted by car- riers subject to its jurisdiction. It can determine whether such are, in and of themselves, or as interpreted in the prac- tices of the carriers, reasonable and nondiscriminatory, and, if otherwise, condemn them and prescribe reasonable rules and regulations, in which event the carriers must obey." It is believed that this conclusion is sound, although a Dis- trict Court of the United States has held otherwise." The issue is now before the Supreme Court.^* The statute penalizing the forgery of interstate and foreign bills of lading, confers no jurisdiction on the Commission ,but the decision holding that such statute is constitutional sup- 71. Transportation Act, Sec. 73. Alaska S. S. Co. v. United 441; Int. Com. Act, Sec. 25, para- States, 259 Fed. 713. graphs 1 to 5; Sections 446a to 74. United States v. Alaska 446e, post. Steamship Co., 251 U. S. , 64 72. Bills of Lading, 52 I. C. C. U. S. , 40 Sup. Ct. . 671, 686. 524 Enforcement by the Commission. [§ 205 ports the contention that Congress could, as it did in sections of the Interstate Commerce Act referred to above, commit au- thority to the Commission to regulate the form of such con- tracts." The Commission in the Bills of Lading Case held that un- der the Cummins Amendment, which in this respect is un- changed by the Transportation Act 1920, the shipper's meas- ure of recovery for loss or damage to his freight is based on the value of the property at the point where the contract re- quires its delivery. That such is the law has been held by a District and Circuit Court of Appeals of the United States'" and the Supreme Court by r,efusing an application for writ of certiorari approved the decision of the Circuit Court of Appeals, § 205. Damagfes, — In addition to the public penalties pre- scribed by the Act, a carrier is liable to any person or persons injured by its violation of the Act for the full amount of dam- ages sustained in consequence of such violation, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery. The only damages recoverable un- der this Act by application to the Commission are damages, for a violation of the provisions thereof, consequently the Commission has no jurisdiction to award damages for breach of contract by a carrier. The Commission has no jurisdiction to aw^ard damages against a shipper, nor can a carrier set off a claim for undercharges or other damages against the claim of a shipper for reparation." 75. United States v. Ferger, 250 can v. Atchison, T. & S. F. Ry. U. S. 199, 207, 63 L. Ed. 609, 612, Co., 6 I. C. C. 85, 4 I. C. R. 385; 39 Sup. Ct. 445, 447. Carstens Packing Co. v. Oregon 76. Note 72 supra, and McCaull- R. & N. Co., 17 I. C. C. 125; Blume Dinsmore Company v. Chicago, M. & Co. v. Wells-Fargo & Co., 15 I. & St. P. Ry. Co., 252 Fed. 664; C. C. 53; damage caused by delay; Chicago M. & St. P. Ry. Co. v. Shiel & Co. v. Illinois Cent. R. Co., McCaull-Dinsmore Co., 260 Fed. 12 I. C. C. 210, breach of contract; 835^ — C. C. A. — ; affirmed 251 LaSalle & B. Co. v. Chicago & U. S. — , 64 L. Ed. — , 40 Sup. Ct. N. W. R. Co., 18 I. C. C. 610; — . General Electric Co. v. New York 77. Lanning-Harris C. & G. Co. C. & H. R. R. Co., 14 I. C. C. 237, V. St. Louis & S. F. R. Co., 15 breach of contract: Colorado Fuel I. C. C. 37, 38; Falls & Co. Co. v. M. K. & T. Ry. Co., 39 T. V. Chicago, Rock Island & P. Ry. C. C. 491, 493; Southwestern Port- Co., 15 I. C. C. 269, 27S; Dun- land Cement Co. v. T. & P. Ry. § 206] Op the Act to Regulate Commerce. 525 The language of the statute is broad and makes the carrier liable for damages sustained in any case where such carrier does or causes to be done any act, matter, or thing, prohibited or declared unlawful by the statute. Such liability exists when there is a failure to do any act, matter, or thing, required by the law/* The foregoing right stated in section 8 of the Act in so far as it permits a recovery of damages for an unlawful charge was not created by the section, although some uncertainty as to the full extent of the right was removed by the statute. In England it had been held that a shipper paying a reasonable rate could not recover damages because of a discriminatory rate favoring another,'" but in this country the weight of au- thority was the other way. The statute removed any doubt which might have existed on the subject.*" The amount of recovery is stated in the statue to be the ''full amount of dam- ages sustained," which is not different from the common law measure of damages in cases where damages are recoverable. ''The right to recover," as said hj the Supreme Court, "is limited to the pecuniary loss suffered and proved.*^ § 206. Damages — Power of the Commission to Make Award of. — Any person or persons claiming to be damaged by any common carrier subject to the provisions of the Act to Regu- late Commerce may make complaint to the Commission,*^ by petition which shall briefly state the facts. After service and hearing of which*"" it shall be the duty of the Commission to Co., 41 I. C. C. 39, 40; Pacific Exch. N. S. 177, 22 L. T. N. S. Creamery Co. v. Sou. Pac. Co., 43, 18 Week. Ref. 92. 42 I. C. C. 93, 100; Trexler Lum- 80. Parsons v. Chicago & N. W ber Co. v. Sou. Ry. Co., 42 I. C. R. Co., 167 U. S. 447, 42 L. Ed C. 719; Galloway Co. v. G. B. & 231, 17 Sup. Ct. 887; Pennsylvania W. R. Co., 48 I. C. C. 455, 456: R. Co. v. International Coal Min Wilson V. P. R. Co., 50 I. C. C. 571, ing Co., 230 U. S. 184, 57 L. Ed who liable for under charges; 1446, 33 Sup. Ct. 893. Pittwood V. N. P. Ry. Co., 51 I. 81. Cases noted supra and, Knud C. C. 535. sen-Ferguson Fruit Co. v. Michi 78. Sec. 8 of the Act; Sec. 382, gan Cent. R. Co., 149 Fed. 973 post. 79 C. C. A. 483; St. Louis, S. W 79. Great Western R. Co. v. Sut« R. Co. v. Lewellen, 192 Fed. 540 ton L. R., 4 H. L. 238, 38 L. J. 82. Sec. 9 of Act; Sec. 383, post 83. Sec. 13 of Act; Sec. 392, post 526 Enforcement by the Commission. [§ 206 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 such report shall, when there is an award of damages, include the findings of fact on which the award is made/* When the Commission shall determine that any party com- plainant is entitled to an award of damages, it shall make an order directing the carrier to pay the complainant the sum to which he is entitled on or before a day named. These findings of fact and the order based thereon are prima facie evidence of the facts therein stated/' Prior to the Amendment of March 2, 1889, the Commission held that a claim for damages "presents a case at common law in which the defendants are entitled to a jury trial," and under the then law awards for damages were not made/' Since the Amendment to section 16, awards may be made." Of these provisions for award of damages, it has been said: *'As to the provisions covering reparation cases, Congress is no longer dealing with those matters which concern the practical management and conduct of the business of carriers and the regulation thereof in futuro, in the interests of the public generally, but is conferring a private right of action upon those who have suffered actual damage, by reason of such carriers' violation of some requirement of the Act. The conferring of such right of action, though incident to its power to regulate commerce, is not a regulation thereof. It makes redress of a private injury, actually suffered, possible. It concerns the past and not the future conduct of the carrier, and, though this right of action for damages is qualified by making it dependent in certain cases upon the precedent a- ward of reparation by the Commission, such award is not of the nature of the administrative functions conferred on that 84. Sec. 14 of Act; Sec. 394, posf. 125 C. C. A. 235; Note 77 below. 85. Sec. 16 of Act; Sec. 407, post 87. Rawson v. Newport N. & M. 86. Heck v. East Tennessee, Va. V. R. Co., 3 I. C. C. 266, 2 I. C. & Ga. Ry. Co., 1 I. C. C. 495, 1 R. 626; MacLoon v. Chicago & I. C. R. 775; Riddle v. New York, N. W. R. Co., 5 I. C. C. 84, 3 L. E. & W. R. Co., 1 I. C. C. 594, I. C. R. 711, and practice of the 1 I. C. R. 787; Lehigh Valley R. Commission since. Co. V. Clark, 207 Fed. 717, 720, § 207] Of the Act to Regulate Commebce. 527 body.'^ Ill reversing the Circuit Court of Appeals the Su- jjreme Court without discussing the principles quoted found that the report of the Commission conlormed to the statute, Misrouting violates the law^s and damage suffered may be a- warded by the Commission.''" § 207. Awards of Daina,ges for Charging an Unjust and Un- reasonable Rate. — The statute provides that charges subject to the Act must be "just and reasonable.""" When this law is violated the Commission may make an "award of dam- ages." The Circuit Court of Appeals held that before such an award can be made there must be a finding that the rate charged was unreasonable and the Commission must prescribe "a reasonable maximum rate to be observed by all," and "an order of reparation without such establishment of a reasonable maximum rate is beyond the power of the Commission and void. ' ' " This decision was reversed by the Supreme Court in an opinion written by Mr. Justice Lamar who said -."^ "But however desirablle it may have been to deal with the entire matter at one time, the joinder of the two subjects was not jurisdictional. There was no such necessary connection between the two as to make the order of reparation void be- cause of the absence of a concurrent provision establishing a a rate for the future. ' ' When a rate is advanced and the increased rate is con- demned the shipper, having the legal right to have transpor- tation at a reasonable rate, is clearly entitled to an award of damages by way of reparation measured by the amount paid 88. Lehigh Valley R. Co. v. 423; Newman Lumber Co. v. Clark, 207 Fed. 717, 723, 125 C. Mississippi C. R. Co., 26 I. C. C. A. 235, District Court affrmed C. 97; Sec. 15 of Act; Sec. 402, except as to a portion of the at- j)ost. torney's fees, and Circuit Court 90. Sec. 1 of Act; Sec. 339, post. of Appeals reversed, Mills v. Le- 91. Denver & R. G. R. Co. v. high V. R. Co., 238 U. S. 473, Baer Bros. Mer. Co., 187 Fed. 485, 59 L. Ed. 1414, 35 Sup. Ct. 888. 109 C. C. (A. 337; Commercial 89. McCaull-Dinsmore Co. v. Chi- Club of Omaha v. A. & S. Ry. cago G. W. Ry. Co., 14 I. C. C. Co.. 27 I. C. C. S02, 314. 527; Gus Momsen & Co. v. Gila 92. Baer Bros. Mer. Co. v. Den- Valley, G. & N. Ry. Co., 14 I. ver & R. G. R. Co., 233 U. S. C. C. 614; Goodman Mfg. Co. v. 479, 58 L. Ed. 1055, 34 Sup. Ct. Pennsylvania R. Co., 26 I. C. C. 641. 528 Enforcement by the Commission. [§ 207 in excess of the rate found to be unreasonable."'' AVTiere, how- ever, complaint is made of a rate already in existence and such rate is declared unreasonable at the date of the order of the Commission, a different question is presented. At what exact time did the rate become reasonable? Discussing this question in the Anadarko Cotton Oil Co. case,'* the Commission said : "The Commission is not justified in awarding damages in any case except on a basis as certain and definite in law and in fact as is essential to the support of a final judgment or decree requiring the ]jayment of a definite sum of money. * * * The test of reasonableness can be applied only by reference to and upon consideration of all pertinent facts, circumstances, and conditions affecting the rate in effect at any particular time. * * * A rate reasonable in view of the circum- stan(res and conditions when it is established may in course of time become unreasonable by virtue of changed circumstances and conditions. It is manifestly impractical for the carriers or the Commission in such a case to determine at what exact time in the gradual process of charges the rate becomes unrea- sonable." In the Burnham-Hanna-Munger case,'^ no reparation was awarded for shipments moving prior to the date of the order, but awards were made for shipments moving after that date and during the time the order was enjoined. After two years from the date of the order therein advances were made some of which were held to increase rates to a point where they were unreasonable. In determining the question arising in an 93. Tift V. Southern Ry. Co., 10 Interstate Com. Com., 193 Fed. I. C. C. 548; Tift v. Southern 678. Op. Com. Ct. No. 18 p. 311; Ry. Co., 138 Fed. 753; Southern Chicago, B. & Q. R. Co. v. Fein- Ry. Co. V. Tift, 148 Fed. 1021; tuch, 191 Fed. 482, 112 C. C. A. Southern Ry. Co. v. Tift, 206 U. 126. S. 428, 51 L. Ed. 1124, 27 Sup. 94. Anadarko Cotton Oil Co. v. Ct. 709; Nicola, Stone & Myers Atchison, T. & S. F. Ry. Co., Co. V. Louisville & N. R. Co., 14 20 I. C. C. 43, 49, 50, 51. I. C. C. 199; Central Yellow 95. Burnham-Hanna-Munger Dry Pine Assn. v. Illinois Cent R. Goods Co. v. Chicago, R. I. & P. Co., 10 I. C. C. 505; Illinois Cent. Ry. Co., 14 I. C. C. 299, order R. Co. V. Interstate Com. Com., enjoined in Chicago, R. I. & P. 206 U. S. 441, 51 L. Ed. 1128, 27 Ry. Co. v. Interstate Com. Com.. Sup. Ct. 700; Russe & Surges v. 171 Fed. 680, and the Commission § 207] Op thk Act to Regulate Commerce. 529 investigation of these increases the Commission said: "We are now ijrescribing what may well be considered a new rate adjustment," and under such conditions reparation was de- nied."' The Commission having found a rate unreasonable from the date of that order, reparation should be allowed, the Commis- sion saying: "In every case like this the Commission must fix the point of time at which the rate becomes unreasonable, must determine when shippers were entitled, and when car- riers ought to have established the rate found reasonable. Manifestly each ease must depend upon its own facts, and the complainant must assume the burden of showing that the rates paid have been unreasonable."" When a shipper owning a commodity employs a common carrier to transport it, it is his right to have such transporta- tion at a reasonable charge. If the carrier exacts more than a reasonable charge, the shipper's rights have been invaded to the extent that the charge exacted exceeds a reasonable one. The shipper is entitled to have his injury wiped out by a return to him of the amount paid in excess of what he was lawfully bound to pay. This is the measure of his minimum recovery. Under some circumstances this amount may be augmented to recoup the shipper for the loss of his business maliciously caused by the common carrier . This rule has not been consistently followed by the Commis- sion. In some cases reparation has been denied, as in the Anadarko Cotton Oil Case, supra, because there was a general readjustment of rates. In order cases rates have been held unreasonable, but although the facts remained unchanged for two years prior to the order, reparation was denied or dated from some date other than that prescribed in the statute of limitations. The later decisions of the courts have refused so to limit a shipper's rights and sustained the rule as given above.*' sustained in Interstate Com. Com. 97. Re Wool, Hides and Pelts, V. Chicago, R. I. & P. Ry. Co., 25 I. C. C. 675, 678; National 218 U. S. 88. 54 L. Ed. 946, SO Wool Growers Assn. v. Oregon Sup. Ct. 651. S. L. R. Co., 23 I. C. C. 151. 96. Re Advances in Rates be- 98. The principle is settled by tween Mississippi and Missouri the courts: Southern Pac. Co. v. Rivers, 21 I. C. C. 546. Darnell-Taenzer Lumber Co., 245 530 Enforcement by the Commission. [§ 208 And reparation may be ordered for an unreasonable charge although no tariff is provided therefor/" Damages may be awarded "where a carrier collects a greater sum on an intermediate shipment than is fixed by its published tariffs/"" "Damages" and "Reparation" have been used interchange- ably in the reports of the Commission, although in the later volumes the word damages is generally adopted. § 208. Awards of Damages for Unjlawful Discrimination. — Sections two"" and three^"" of the Act prohibit unjust dis- U. S. 531, 62 L. Ed. 451, 38 Sup. Ct. 186. (For the history of this case see 13 I. C. C. 668, 190 Fed. 659, 221 Fed. 890, 137 C. C. A. 460, 229 Fed. 1022, 143 C. C. A. 6G3); N. Y. N. H. & H. R. Co. v. Ballou & Wright, 242 Fed. 862, 155 C. C. A. 450, P. U. R. :918A, 149. See as illustrating the lack of a definite adherence to the rule stated in the text: Rules unreasonable but re- paration denied; Hires Condensed Milk Co. V. P. R. Co., 38 I. C. C. 441 and cases cited 448; Scott v. Cape Charles R. Co., 38 I. C. C. 467; Brick from New Hampshire, 42 I. C. C. 231; Arlington Heights Fruit Exchange \. Sou. Pac. Co., 39 I. C. C. 88, 45 I. C. C. 248. 250; Coca-Cola Co. v. A. T. & S. F. Ry. Co., 45 I. C. C. 461. Reparation de- nied because general system of rates involved: Western Gro. Co. V. B. & O. R. Co., 40 I. C. C. 53 and cases cited p. 55; Alleged Un- reasonable Rates on Live Stock, 41 I. C. C. 514 and cases cited; Cudahy Packing Co. v. A. T. & S. F. Ry. Co., 42 I. C. C. 579; Dela- ware, etc. Coal Co. v. D. L. & W. R. Co., 46 I. C. C. 506 and cases cited. Reparation granted: Federal Glass Co. V. C. R. I. & P. Ry. Co., 38 I. C. C. 331; Fruit Despatch Co. V. P. & R. Ry. Co., 48 I. C. C. 634; Cotton Mfrs. Assn. v. C. C. & 0. Ry. Co., 53 I. C. C. 741. General statement of claim suf- ficient: Morgan's L. & T. R. & S. S. Co. V. Joseph Iron Co., 243 Fed. 149; Commercial Club of Omaha v. A. & S. Ry. Co., 41 I. C. C. 480, cases cited 482; But some certainty is required, A. T. & S. Ry. Co. V. Spiller, 246 Fed. 1, 158 C. C. A. 227, 249 Fed. 677; Montgomery v. C. B. & Q. R. Co., 228 Fed. 616. Injury to business: Louisville & N. R. Co. v. Ohio Valley Tie Co., 242 U. S. 288, 61 L. Ed. 305, 37 Sup. Ct. 120. No defense that shipper adds freight to selling price: Nitro Powder Co. V. W. S. R. Co., 44 I. C. C. 596, 597; Ballou & Wright Case, supra, this note. 99. Laning-Harris Coal & Grain Co. V. St. Louis & S. F. R. Co.. 15 I. C. C. 37; Wheeler Lumber, Bridge & Supply Co. v. Astoria & C. R. Co., 20 I. C. C. 10. 100. Memphis Freight Bureau v. Kansas C. S. Ry. Co., 17 I. C. C. 90; Hampton Mnfg. Co. v. Old Dominion Steamship Co., 27 I. C. C. 666, 668. 101. post, Sec. 345. 102. post. Sec. 346. § 208] Of the Act to Regulate Commerce. 531 crimination and imdue or unreasonable preference. When these sections are violated the transgressing carrier is liable to the ''person or persons injured thereby for the full amount of damages sustained in consequence of any such violation." ^°' The jurisdiction of the Commission to make on award of damages in discrimination cases was at one time denied in an opinion by a bare majority of the commissioners/"* but the courts having decided otherwise, the Commission now exer- cises jurisdiction over claims for such awards.^"" That such jurisdiction exists cannot now be doubted."*' In the Coal Car Supply cases shippers Avere damaged by being prevented from selling coal as a result of discrimination against them in furnishing cars. This discrimination was found illegal and the carriers ordered to desist therefrom."' Subsequently, and after the courts had held that the Com- mission had jurisdiction so to do, the Commission he^rd 103. Sec. 8 of Act; Sec. 382, j^ost 104. Joynes v. Pennsylvania R. Co., 17 I. C. C. 361. 105. Hillsdale Coal & Coke Co. V. Pennsylvania R. Co., 23 I. C. C. 186. 106. Dissenting Opinion of Com- missioner Lane in Joynes v. Pennsylvania R. Co., 17 I. C. C. 361, et seq.; Morrisdale Coal Co. V. Pennsylvania R. Co., 176 Fed. 748; Morrisdale Coal Co. v. Penn- sylvania R. Co., 183 Fed. 929, 106 C. C. A. 269. affirmed, same styled Case, 230 U. S. 304, 57 L. Ed. 1474, 33 Sup. Ct. 938; Baltimore & 0. R. Co. V. United States (Pitcairn Case), 215 U. S. 481, 54 L. Ed. 292, 30 Sup. Ct. 164; Robinson v. Baltimore & O. R. Co., 222 U. S. 506, 56 L. Ed. 288. 32 Sup. Ct. 114, affirming same styled case, 64 W. Va. 406, 63 S. E. 323. Mr. Justice Pitney in his dissenting opinion in Pennsylvania R. Co. V. International Coal Mining Co., 230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 893, 914, 915, appends a list of cases where the Commis- sion had granted reparation for unlawful charges "because dis- criminatory, irrespective of whether they were otherwise extortionate," because "in excess of rate afterward voluntarily es- tablished by the carrier" because of error in routing," because "rates held unreasonable per se," "unreasonable because higher than obtainable by another route," and "because of exceeding the sum of the locals," see pages 242 and 243 of opinion. 107. Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 19 I. C. C 356; Jacoby v. Pennsylvania R. Co., 19 I. C. C. 392; Bulah Coal Co. V. Pennsylvania R. Co., 20 I. C. C. 52, order sustained, Penn« sylvania R. Co. v. Interstate Com. Com., 193 Fed. 81; Opinion Com. Ct. No. 31, p. 275. 532 Enforcement by the Commission. [§ 208 evidence, determined the amount of damages suffered and en- tered an award therefor in favor of the shippers/"^ The jurisdiction is settled, but the difficult question is one of proof. What must be showm to establish the fact of the damage? In the International Coal Mining case,^"" damage was claimed because the defendant carrier had rebated part of the published rate to a competitor of the plaintiff. The discrimination resulting from a less charge than that pre- scribed in a legally filed tariff, no prior action by the Com- mission was necessary to give the courts jurisdiction. In the Supreme Court, the shipper contended that it was unneces- sary to allege or prove that it had suffered an injury, for the reason that, as a matter of law, it was entitled to recover as damages the same rate per ton on all its shipments as had been paid by any other person, on his tonnage shipped at the same time over the same route. There was "neither allegation nor proof that it (plaintiff) suffered any injury." What plaintiff there claimed was its right to receive the same rebate which had been paid its competitor. The pleadings, the evidence and this contention must not be lost sight of in considering the opinion of a majority of the court in denying such contention. Delivering the opinion of the court, Mr. Justice Lamar said : "Making an illegal undercharge to one shipper did not license the carrier to make a similar undercharge to other shippers. * * * The measure of damages was the pecuni- ary loss inflicted on the plaintiff as the result of the rebate paid. These damages might be the same as the rebate or less than the rebate, or many times greater than the rebate; but unless they were proved they could not be recovered." The ease was remanded for a new trial, and all that the opinion holds is that a plaintiff's rights are not measured by the benefits another shipper receives, but are measured 108. Hillsdale Coal & Coke Co. 109. Pennsylvania R. Co. v. In- V. Pennsylvania R. Co., 23 I. C. C. ternational Coal Mining Co., 230 U. 186. See also, Hillsdale Coal & S. 184, 57 L. Ed. 1446, 33 Sup. Ct. Coke Co. V. Pennsylvania R. Co., 893, reversing Pennsylvania R. 229 Pa. 61, 78 Atl. 28. Co. v. International Coal Mining Co., 173 Fed. 1, 97 C. C. A. 383. § 208] Of the Act to Regulate Commerce. 533 by the actual damages he suffers, proof of which damages must be made as in other suits therefor. The Commission held that rates on tobacco for export were discriminatory in violation of the Act, and entered an order requiring the carriers to desist from such discrimina- tion, but made no finding tliat the rate was unreasonable in violation of section one."^ On a supplemental hearing, com- plainants sought to recover an award of damages. On such hearing it appeared that the complainants shipped to foreign ports other than those to which the shippers in whose favor the discrimination existed shipped, and no evidence of dam- ages was offered. It was contended that an award should be made of the difference between the rate paid by com- plainants and that paid by other shippers shipping to points to which complainants made no shipments. The Commission denied reparation, but its opinion should be construed as limited by the facts of the case."^ In a later case involving the same principle, the Commission stated the rule as follows : "Reparation may properly be awarded when a discrimina- tory freight rate has been exacted, but it does not necessarily follow tliat because a rate is found to be unjustly discrimina- tory and unduly prejudicial, that the complaining parties are the ones who have been damaged through its exaction." "^ That it may be difficult to prove damages is no reason for denying the right thereto if the damages are reasonably certain and can be proved with reasonable exactitude."' In awarding general damages, the courts meet with the same difficulty and the rules for fixing other kinds of damages should apply when a shipper is damaged by a rate illegally discriminatory against him. The Meeker case"* is decisive 110. New Orleans Board of 113. Weinman v. De Palma, 232 Trade v. Illinois Cent. R. Co., 29 U. S. 571, 58 L. Ed. 733, 34 Sup. I. C. C. 465. Ct. 370. 111. New Orleans Board of 114. Meeker v. Lehigh Valley R. Trade v. Illinois Cent. R. Co., 29 Co., 21 I. C. C. 129, 23 I. C. C. I. C. C. 32. 480, 211 Fed. 785, 128 C. C. A. 112. Curry & Whyte Co. v. Du- 311, 236 U. S. 412, 434, 59 L. Td. luth & I. R. R. Co., 30 I. C. C. 644, 659, 35 Sup. Ct. 328, 337. 1, 14. See also Becker v. Pere See also Mills v. Lehigh V. Marquette R. Co., 28 I. C. C. 645, R. Co., 238 U. S. 473, 59 L. Ed. 657. 1414, 35 Sup. Ct. 888; So. Pac. 534 Enforcement by the Commission. [§ 208 only of the question of the prima facie effect of an order oC the Commission. In that case the Commission had awarded damages both for a violation of section one and of section three of the act. The carrier being sned presented no testi- mony but relied on the claim that the report of the Commission showed that the amount of the award corresponded in one instance to the amount of the rebate and in the other to the amount of the overcharge, and that therefore the Com- mission had applied an erroneous and inadmissible measure of damages. To this contention the Supreme Court replied: "The Commission was authorized and required by section 8 of the act to regulate commerce to award the full amount • of damages sustained, and that, of course, was to be deter- mined from the evidence. If it showed that the damage cor- responded to the rebate in one instance and to the overcharge in the other, the claimant was entitled to an award upon that basis. The case of Pennsylvania R. Co. v. International Coal Min. Co., 230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. Rep. 893, is cited as holding otherwise, but it does not do so. There a shipper, without proving that he sustained any dam- age, sought to recover from a carrier for giving a rebate to another shipper, and this court, referring to section 8, said (p. 203) : "The measure of damages was the pecuniary loss inflicted on the plaintiff as the result of the rebate paid. Those damages might be the same as the rebate, or less than the rebate, or many times greater than the rebate ; but unless they were proved, they could not be recovered. Whatever they were they could be recovered.' There is nothing in either report of the Commission which is in conflict with what was said in that case. On the contrary, the plain im- port of the findings is that the amount awarded represents the claimant's actual pecuniary loss; and, in view of the recital that the findings were based upon the evidence adduced, it must be presumed, there being no showing to the contrary, that they were justified by it." Co. V. Goldfielfl Consol. Milling Fed. 659. As misconstruing the & Transportation Co., 220 Fed. International Coal case supra, see 14; Darnell-Taenzer Lumber Co. Lehigh V. R. Co. v. Clark, 207 V. So. Pac. Co., 221 Fed. 890, Fed. 717, 125 C. C. A. 235, re- 137 C. C. A. 460, reversing 190 versed in Mills Case supra; Le- § 208] Of the Act to Regulate Commerce. 535 In the case of Mills v. Lehigh Valley R. Co., note supra, the Commission found that the complainant was entitled to a stated amount "as reparation.""^ It was contended that such a finding was not equivalent to a finding that he was damaged. Of this contention the Court said: "What the Commission decided was that the shippers were entitled to reparation ; that is, to be made whole, — to be compensated for a loss because of an illegal and unreasonable exaction ; and the amount which they stated as the sum to be paid "as reparation' on the specified shipments was the amount which they found necessary to accomplish the reparation, — to af- ford the compensation. The statute was not concerned with mere forms of expression, and in view of the decision that a finding of the ultimate fact of the amount of damage is enough to give the order of the Commission effect as prima facie evidence, we think that the trial court did not err in its ruling. The statutory provision merely established a rule of evidence. It leaves every opportunity to the defendant to contest the claim. But when the Commission has found that there was damage to a specified extent, prima facie the dam- age is shown ; and, according to the fair import of its decision, the Commission did find the amount of damage in this case." A shipper's damages as the ajuthorities now stand are not ordinarily measured by the difference between the rate paid by him and a lower and unlawfully preferential rate paid by his competitor. In such cases the shipper must be able to show just wherein and to what extent he has been damaged. There are many cases in the reports of the Com- mission in which reparation has been disallowed under the authority of the International Coal case, snpra, solely be- cause the complainant failed to offer the necessary proof, and that in eases where the proof existed. It may be said that the business charged an unlawful rate in violation of sections 2 or 3 of the Act to Regulate Commerce may be seriously in- jured without any shipment having moved under such unlaw- ful rate. To prove this and other injuries, and to measure high V. R. Co. V. American Hay 115. Naylor & Co. v. Lehigh V. Co., 219 Fed. 539, 135 C. C. A. R. Co., 15 I. C. C. 9, 18 I. C. C. 307. 624. 536 Enforcement by the Commission. [§ 209 the amount necessary to repair the injury, the same principles that the courts are constantly applying to suits for injuries to business, nmst be brought into action."" § 209. Damages under the Fourth Section. — Under section foiu- of the Act, as has been shown,"' relief may be granted from the long and short haul provision, and the Commission lias granted relief from the provision requiring that the rate for the through routes shall not exceed the aggregate of the intermediate rates. Ihider these circumstances, where the carrier has followed the statute and applied for relief, the existing rate for the shorter haul is the legal rate until adjudged otherwise by the Commission after hearing. Until such adjudication the car- rier has not "done any act, matter or thing * * * pro- hibited or declared to be unlawful," nor has there been an omission to "do any act, matter or thing" required to be done. Discussing the question and of the applications filed for relief under the section, the Commission said : "Tender this provision over 11,000 applications were tiled before the date fixed, and these two applications were among that number. Noav, we think that it plainly appears, from 116. Graustein v. B. & M. R. R. That it is possible to make proof Co., 45 I. C. C. 393. Recent cases sufficient to obtain an order for discussing the general principles damages for charging a discrim- are: Manufacturers & Merchants inatory rate appears from the fol- Asso. V. A. & A. R. R. Co., 37 I. C. lowing cases: Pittsburg Steel Co. C. 350, 351; California Corrugated v. P. & L. E. R. R. Co., 39 I. C. Culvert Co. v. A. G. S. R. R. Co., C. 312; McGowan-Foshee Lumber 38 I. C. C. 568; Greenbaum v. Co. v. F. A. & G. R. R. Co., 43 I. Sou. Ry. Co., 38 I. C. C. 715; C. C. 581; Valley Smokeless Coal Brooks Coal Co. v. Wabash Ry. Co. v. P. R. R. Co., 43 I. C. C. Co., 39 I. C. C. 426; Wilkes & 654; Buffalo Union Furnace Co. v. Company v. A. G. S. R. R. Co., L. S. & M. S. Ry. Co., 44 I. C. C. 39 I. C. C. 447; Union Lumber 267; Penn. R. Co. v. Minds, 250 Co. V. G. C. & S. F. Ry. Co., 41 U. S. 368, 63 L. Ed. 665, 39 Sup. I. C. C. 411; Omaha Alfalfa Mill- Ct. -531; Penn. R. Co. v. Stineman ing Co. V. U. P. R. R. Co., 43 I. C. Coal Min. Co., 242 U. S. 298, 61 C. 264; and Delaware, L. & W. L. Ed. 316, 37 Sup. Ct. 118; Penn. Coal Co. V. R. R. Co., 46 L C. C. R. Co. v. Jacoby & Co., 242 U. S. 506, where the Commission did 89, 61 L. Ed. 163, 37 Sup. Ct. 49. what was designated as "sub- 117. Ante Sees. 154, 155; j)ost. stantial" and "essential" justice. Section 349. § 210] Of the Act to Regulate Commerce. 537 the action of Congress in providing that no carrier should be proceeded against for a violation of the fourth section until its application had been acted upon, that "it was the intent of Congress to say that matters should be left in statu quo until that time. It would be inconsistent, to grant reparation for a disregard of the rule of the fourth section during that period within wliich the law-making authority had expressly san- ctioned existence of such disregard. "AVithout undertaking, therefore, to lay down any rule as to tlie granting of reparation for violations of the fourth section, we hold that no damages can be given up to the time when the Commission passes upon these fourth section ap- plications, unless, possibly, a case is made out under the third section, which might carry with it an award of damages, or unless under the first section the rate to the intermediate point has been found unreasonable.""* The Commission has with practical unanimity and in hun- dreds of eases awarded reparation Avhere through rates have exceeded the aggregate of the intermediate clause of the fourth section.'** § 210. Damages for Misrouting. — The law prior to 1920 stating the shippers' rights provided: "subject to such rea- sonable exceptions and regulations as the Interstate Commerce Commission shall from time to time prescribe, shall have the right to designate in writing by which of such through routes such property shall be transported to destination, and it shall thereupon be the duty of the initial carrier to route said prop- erty and issue a through bill of lading therefor as so directed, and to transport said property over its own line or lines and 118. Appalachian Lumber Co. v. C. C. 524, 529; Lust's Digest, Vol. Louisville & N. R. Co., 25 I. C. C. 1, p. 864, et seg., for several hund- 1S3, 197, followed in Jonesville red cases. If the long-and-short Clothing Co. v. Chicago & N. W. haul provision were absolute, re- Ry. Co., 26 I. C. C. 628, 630. paration should be awarded for 119. Section 154, suj)ra. Lindsay its violation. Sou. Pac. Co. v. Cali- Bros. v. B. & 0. S. W. R. Co., 16 fornia Adjustment Co., 237 Fed. I. C. C. 6, 8; Windsor Turned 954, 150 C. C. A. 604, 248 U. S. Goods Co. v. C. & O. Ry. Co., 18 595, 63 L. Ed. 226, 39 Sup. Ct. I. C. C. 162, 164; Alabama Pack- 182. ing Co. v. L. & N. R. Co., 47 I. 538 Enfoecement by the CoMMissioisr. [^ 210 deliver the same to a connecting line or lines according to such through route, and it shall be the duty of each of said connecting carriers to receive said property and transport it over the said line or lines and deliver the same to the next succeeding carrier, or consignee according to the rout- ing instructions in said bill of lading : Provided, however, that the shipper shall in all instances have the right to deter- mine, where competing lines of railroad constitute portions of a through line or route, over which of said competing lines so constituting a portion of said through line or route his freight shall be transported,"'"" Under the authority granted by the statute, the Commission passed certain conference rulings in which it is stated that it has exclusive jurisdiction over claims for damages arising from the misrouting of freight.''^ Carriers could not dis- regard instructions of shippers as to intermediate routing, except when the tariff of the initial line reserved the right to the carrier to dictate intermediate routing. When such reservation was made in the tariff: (1) where all-rail rates and rail-and-water rates are available the agent of the car- rier must have had the shipper designate which of the two he wished to use; and (2) the agent could not route ship- ment via a route which will be more expensive to the shipper than the one desired by him, or which did not furnish sub- stantially as good and expeditious service. In the absence of specific routing which the carrier is will- ing to observe, the routing was via the cheapest reasonable route of the class designated by the shipper. The initial carrier had the duty to protect the routing.^" When a bill of lading was presented by a shipper showing both routing and rate, and the rate was not available by the prescribed routing, a routing applicable to the rate had to be adopted.^"' When a carrier routed by a higher interstate rate and there was available a lower reasonable intrastate rate, damages for 120. Sec. 15 ofAct; Sec. 402, 122. Conf. Rulings 214, 91, 93, post. 140, 190, 192, 198, 205, 214d. 286, 121. Conf. Ruling 286. 316. 123. Com. Ruling 286f. •^i 211] Of the Act to Regulate Commerce. 539 the difference between the lower and higher rate may be allowed, unless the route over the interstate line was pre- scribed by the shipper.'"^ The routing instructions were not absolutely binding and the obligation of the carrier was to deal justly with the ship- per.''' While the Transportation Act 1920"' gives the Com- mission power to make orders affecting the routing of freight, unless and until such orders are made carriers are obligated to observe instructions and rules relating to routing as here- tofore. § 211. Damages — General Statement. — Carriers may volun- tarily make rates lower than they could be compelled to make them, but the Commission will not award reparation on the basis of a rate lower than that which it would prescribe, even though the shipper and carrier may agree thereto.'^' Where complainant operates an industrial road which is a plant facility, originating shipments and receiving an allow- ance from the carrier therefor or participating in the joint rate under which shipments moved, reparation has been denied by the Commission."* If, however, the industrial railroad was legally entitled to an allowance, and some may be, and,"* if the allowance did not exceed a reasonable compensation, it would seem that where the rate, other than the portion al- lowed the industrial railroad, is unreasonable, that reparation should be awarded. 124. Lathrop Lumber Co. v. Ala- Sec. 15, Par. 4, 5, 9 and 10; Sees. bama G. S. R. Co., 27 L C. C. 396b, 396c, 401 and 402, post. 250; Conf. Ruling 140. See also: 127. Pacific Elevator Co. v. Chi- McCaull-Dinsmore Co. v. Chicago, cago, M. & St. P. R. Co., 17 I. C. G. W. Ry. Co., 14 I. €. C. 527; C. 373, 374. Gus Momsen & Co. v. Gila Valley 128. Kaul Lumber Co. v. Central G. & N. Ry. Co., 14 L C. C. 614; of Ga. Ry. Co., 20 I. C. C. 450; Goodman Mfg. Co. v. Penn. R. Co., Tap Line Case, 23 I. C. C. 277, 26 I. C. C. 423; Newman Lumber 549; Commercial Club of Omaha Co. V. Mississippi C. R. Co., 26 v. Anderson & Saline River Ry. I. C. C. 97; Sec. 15 of Act; Sec. Co., 27 I. C. C. 302, 324. The 402, post. Kaul Case is hardly sustained by 125. Northern P. R. Co. v. the Tap Line Cases; United States Solum, 247 U. S. 477, 62 L. Ed. v. Louisiana & Pac. Ry. Co., 234 1221, 38 Sup. Ct. 550. U. S. 1, 58 L. Ed. 1185, 34 Sup. 126. Int. Com. Act, Sec. 1, Par. Ct. 741. 15, 16; Sees. 344b to 344g, post; 129. Sec. 171, ante. 540 Enforcement by the Commission. [^ 212 § 212. Damages for Misquoting a Rate. — Prior to the Amendment of 1910 it was held that should a carrier's agent make a mistake and quote a wrong rate, the shipper re- ceiving such quotation of a rate must nevertheless pay the correct rate even though he suffer severe loss thereby."" Nor does the fact that there was no rate on file change the rule."^ Discussing this subject, the Commission, in its twenty- second Annual Report, pp. 16, 17, showed the hardship of the rule and said : "The Commission feels that to require the shipper to as- certain for himself at his peril the rate imposes upon him an undue burden. The railway should know what its established charges are, and may be fairly required to state in writing, when a written request is made by the shipper, the rate which it lias published and maintains in force. We call special at- tention to this matter as one of immediate and general con- cern, which discloses the need of an appropriate remedy, and urgently request that a suitable measure be promptly en- acted." In the first edition hereof, referring to the quotation above, it w^as said : "It is undoubtedh' true that shippers ordinarily do not know, and it would sometimes take an expert to find out, what a particular rate is, and therefore, reliance must be had on the information furnished by the agents of the carriers. The ISO. Poor V. Chicago, B. & Q. R. Ala. 131, 10 So. 289, 4 I. C. R. Co., 12 I. C. C. 418, 421, 422; 200; Atchison, T. & S. F. Ry. Co. Tex. & Pac. Ry. Co. v. Mugg, 202 v. Holmes, 18 Okla. 92, 90 Pac. 22, U. S. 242, 50 L. Ed. 1011, 26 Sup. New York C. & H. R. R. Co. v. Ct. 628; Gulf C. & S. F. R. Co. v. United States, 212 U. S. 500, 53 Hefley, 158 U. S. 98, 39 L. Ed. L. Ed. 624, 29 Sup. Ct. 309; lUi- 910, 15 Sup. Ct. 802; Suffern nois Cent R. Co. v. Henderson Hunt & Co. V. Indiana, D. & W. Elevator Co., 226 U. S. 441, 57 L. Ry. Co., 7 I. C. C. 255, 278; Hous- Ed. 290, 33 Sup. Ct. 176, revers- ton & T. C. R. Co. V. Dumas, 43 ing same styled case, 138 Ky. 220, S. W. 609; Chicago, R. I. & P. 127 S. W. 779. Ry. Co. v. Hubbell, 54 Kans. 232, 131. Kansas City S. R. Co. v. Al- 38 Pac. 266, 5 I. C. R. 241; Pond- bers Com. Co., 223 U. S. 573, 56 Decker Lumber Co. v. Spencer, L. Ed. 556, 32 Sup. Ct. 316, re- 86 Fed. 846, 30 C. C. A. 430; Mo^ versing same styled case, 79 Kan. bile & O. R. Co. v. Dismukes, 94 59, 99 Pac. 819. § 212] Of the Act to Eegulate Commerce. 541 Commission points out the evil but suggests no remedy. It would probably be an effective remedy to allow the Commis- sion to award reparation in such cases as it might find were based upon an honest mistake of the carrier. The Commis- sion would be able to prevent the evils which Mr, Commis- sioner Harlan points out in the Poor case, supra, and, if neces- sary to prevent discrimination, the rate mistakenly given might be open to all who ship contemporaneously with the shipper who relied on the misquoted rate." By the Amendment of 1910,'"' it was made the duty of the carrier ''after written request" to give a statement of the correct rate, and should there be a refusal to comply with a request properly made, or should there be given a wrong rate, and "if the person or company making such request suffers damage in consequence of such refusal or omission, or in consequence of the misstatement of the rate," the car- rier is made liable by the statute to pay a penalty of two hun- dred and fifty dollars, which penalty shall accrue to the United States. As such refusal, omission or misstatement would come within the provisions of section eight of the Act, the shipper could recover and the Commission or a court could award "the full amount of damages sustained in con- sequence of any such violations." This statement is not in conflict with the decisions of the Supreme Court in the Albers Commission case and the Hen- derson Elevator case, cited note supra. In the Albers Com- mission Co. case the court was careful to limit its opinion to the law in efi'ect prior to 1910, and at page 598 of the opinion it wa.s said: "To avoid any misapprehension in respect to the character of the liability sought to be enforced in this case, -Ci^e deem it well to repeat that there was no claim of any right to reparation or damages under the Inter- state Commerce Act, * * * b^t only an attempt to en- force a supposed liability for a breach of the special agree- ment." A like limitation could be stated as to the Henderson Elevator case. The Commission in a case decided in 1913, re- fused reparation, but in that case there was no application 132. Act June 8, 1910; Sec. 368, post. 542 Enfoecement by the Commission. [^ 213 made and refused, and no misstatement under the amended law."' § 213. Damages, to Whom Paid. — Keparation is paid to him who pays the unlawful advance or exaction. For the wrong of being required to pay that which is unlawful under the Act, he who makes such payment has suffered legal damage to the extent of the amount paid in excess of the lawful rate or to the extent that he is damaged by an unlawful prefer- ence to another. It is the person who sustains damages who is given the right to an award by way of reparation, and that the injured owner may add to the price of his commodity the amount of his damages does not relieve the carrier causing the damage and keeping the unlawful exaction of an excessive rate. For, as said by ]\Ir. Commissioner Prouty :"* "If complainants were obliged to follow every transaction to its ultimate result and to trace out the exact commercial effect of the freight rate paid, it Avould never be possible to show damages with sufficient accuracy to justify giving them. Certainly these defendants are not entitled to this money which they have taken from the complainants, and they ought not to be heard to say that they should not be required to refund this amount because the complainants themselves may have obtained some portion of this sum from the consumer of the commodity transported." This statement of the Commission applies with more force to cases where the rate is unreasonable than to discrimination cases where there must be proof of damages by the shipper who suffers the loss."^ The manufacturer who sells his produce f. o. h. his plant pays no freight tbereon, although the value of his product may be affected by the rate of carriage from his plant to the market. His damage, if any, however, is not subject of as- certainment. "When he sells free on board cars at his place of 13.3.. Franke Grain Co. v. Illinois 134. Burgess v. Transcontin- Cent. R. Co., 27 I. C. C. 625. As ental Freight Bureau 13 I. C. C. supporting the principle announ- 668, 679, 680. ced in the test. See St. Louis S. 135. Sec. 208, supra. W. Ry. Co., V. Lewellen, 192 Fed. 540. <§> 213] Of the Act to Eegulate Commekce. 543 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 Avould not suffer, but such loss or injury must be adjusted between the owner and the carrier. It may be that the higher rate affects the selling price at the point of manufacture, but to what extent cannot be definitely ascer- tained. Besides, the manufacturer does not fix his selling price according to the final destination of the commodity. He frequently does not know 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 manifest that the legal in- jury 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 com- modity wliile in transit and who has undertaken to deliver it at a point requiring its shipment over the lines of the car- rier who collects the unlawful charge. Frequently a manu- facturer will sell his goods delivered at a particular point, but allow the consignee to advance the freight thereto, deducting the amount advanced 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 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 bound to pay"" 136. Commercial Club of Omaha Co., 14 I. C. C. 199, 208; Sunny- V Anderson & S. R. R. Co., 27 side Coal Mining Co. v. Denver I. C. C. 302, 323; Nicola, Stone & & R. G. R. Co., 19 I. C. C. 20; Meyers Co. v. Louisville & N. R. Mountain Ice Co. v. Delaware. L. 544 Enforcement by the Commission. [§ 214 Cases of unlawful discrimination may present a different issue and one where a manufacturer could show loss of business because a competitor had a less rate. The Commission declined to award reparation before a complainant had paid the lawful rate.'" The right to recover damages under the Act may be as- signed/" but by conference ruling 362 the Commission said : "In awarding reparation the Commission will recognize an assignment by a consignor to a consignee or by a consignee to a consignor, but will not recognize an assignment to a stranger to the transportation records." § 214. Damages, by Whom Paid. — Where the illegal rate is a joint rate over a through route consisting of several car- riers, 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 illegal rate, or is each carrier liable for only the proportion of the illegal charge received by it? The charg- ing 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 liable. Where, as was found to be a fact in the Tift case, supra, an illegal advance was made by ' a combination of carriers by concerted and concurrent action in violation of the Sherman 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 damages by such illegal ad- vance. The Commission does not fully agree with this proposi- tion, and in the Nicola, Stone and Myers ease, announced the rule as follows : & W. R. Co., 21 I. C. C. 596; Cent. R. Co., 20 I. C. C. GOC. South- Baker Mnfg. Co. V. Chicago & N ern R. Co. v. Darnell Taenzer W. R. Co., 21 I. C. C. 605; Caro- Lumber Co., 245 U. S. 531, 62 L. Una Portland Cement Co. v. Ed. 451, 38 Sup. Ct. 196. Chesapeake & O. Ry. Co., 21 I. 137. Rosenblatt v. Chicago & N. C. C. 533; Lamb, McGregor & W. Ry. Co., 18 I. C. C. 261. Co. V. Chicago & N. W. Ry. Co., 138. Edmunds v. Illinois Cent R. 22 L C. C. 346; Deming Lumber Co., 80 Fed. 78; Jubitz, Assignee, Co. V. Southern Pac. Co., 24 I. v Southern Pac. Co., 27 I. C. C. C C. 598; Sondheimer v. Illinois 44. The Commission declined to § 215] Of the Act to Regulate Commerce. 545 "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 resulted. We cannot 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 movement of the commodity should be liable to refund the whole or any part of the rate for the movement of a ship- ment in Avhich they did not participate. AVe think that the liability is restricted to those carriers who participated in the transportation of the lumber via their respective routes over which the several shipments 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.'"'" The rule announced in concluding the foregoing quotation has been followed by the Commission whose orders are issued against the carriers jointly.^^" § 215. Damage — Protest Unnecessary, — It is not necessary that a rate be paid under protest in order to enable a shippei' paying it to recover the excessive and unlawful portion thereof. This is true because the law requires no useless thing. express an opinion on tliis point, necessary that all the parties lia- O'Brien Com. Co. v. Chicago & ble should be defendants, Inde- N. W. Ry. Co., 20 I. C. C. 68. The pendent Refiners Assn. v. West- Commission has adhered to its ern N. Y. & P. R. Co., 6 I. C. C. conference ruling but the assign- 378; Webster Grocery Co. v. Chi- ability of the right to recover cago & N. W. Ry. Co., 21 I. C. has been recognized by the Courts. C. 20. A. T. & S. F. Ry. Co. v. Spiller, 140. Green & Son v. Sou. Ry. 246 Fed. 1, 19, 158 C. C. A. 227. Co., 40 I. C. C. 157. 159; River- 139. Osborne v. Chicago & N. W. side Mills v. A. & S. S. S. Co., 40 Ry. Co., 48 Fed. 49; Interstate I. C. C. 501, 502; Squire & Co. Com. Com. v. Louisville & N. R. v. A. S. R. Co., 44 I. C. C. 509, Co., 118 Fed. 613; Nicola, Stone 511. The Circuit Court of Appeals & Meyers Co. v. Louisville & N. acted on a contrary principle but R. Co., 14 I. C. C. 199; Blackhorse probably without careful consider- Tobacco Co. v. Illinois Cent. R. ation as the amount was trifling Co., 17 I. C. C. 588. Nor is it and the question arose only in- 546 Enforcement by the Commission. [^ 215 and in no case where a rate is fixed in the schedules filed ac- cording to law, would protest avail anything. The carrier could not, if it wished, yield to the protest and charge less tiian the tariff rates. This question has been before the Com- mission and has been decided in harmony with the principles stated/" The holding of the Commission is not in conflict with the decision of the courts. It may be admitted that ordinarily where a payment is voluntarily made it cannot 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, pro- test is neither necessary nor effective. The case of Knudsen- Ferguson Fruit Co. v. Chicago, St. P., M. & 0. Ry. Co.'" il- lustrates the distinction between changes collected under the force of a tariff 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 transportation, the cidentally Mo. Pac. R. Co. v. Fer- guson Saw Mill Co., 235 Fed. 474, 481, 149 C. C. A. 20. 141. Southern Pine Lumber Co. V. Southern Ry. Co., 14 I. C. C. 19.5; Baer Bros. v. Mo. Pac. Ry. Co., 13 I. C. C. 329; National Refining Co. v. Atchison, T. & S. F. Ry. Co., 18 I. C. C. 389; Penn- sylvania R. Co. V. International Coal Co., 173 Fed. 1, 97 C. C. A. 383. While this case was reversed by the Supreme Court, same styled case, 230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 893, that court did not discuss this ques- tion and remanded the case, which would have been useless if protest had been necessary; Mitchell Coal & Coke Co. v. Penn- sylvania R. Co.., 181 Fed. 403. The subsequent history of this case, though not affecting this question, is: Dismissed, same styled case, 183 Fed. 908, appeal dismissed, same styled case, 192 Fed. 475, 112 C. C. A. 637, Writ of certiorari denied 223 U. S. 733. 56 L. Ed. 635, 32 Sup. Ct. 528. On appeal affirmed in part and reversed in part, 230 U. S. 247, 57 L. Ed. 1472, 33 Sup. Ct. 916. The statement in Denver & R. G. R. Co. V. Baer Bros. Mercantile Co., 209 Fed. 577, 580, 126 C. C. A. 399, was directed to the subject of interest and can- not be claimed as a precedent against the principles stated in the text. See Baer Bros. Mer- cantile Co. V. D. & R. G. R. Co , 233 U. S. 479, 58 L. Ed. 1055, 34 Sup. Ct. 641. Sou. Pacific Co. v. California Adjustment Co., 237 Fed. 954, 955. 150 C. C. A. 604. 142. Knudson-Ferguson Fruit Co. V. Chicago, St. P. M. & 0. Ry. Co., 149 Fed. 973, 79 C C. A. 483, 204 U. S. 670, 51 L. Ed. 672. Peti- . tion for writ of certiorari denied. § 216] Of the. Act to Regulate Commerce. 547 schedules stating "that the published charge for transporta tion did not include the cost of icing in transit, but that the carrier would impose an additional charge for such serv- ice." Such a tariff would not comply with the present law as to filing tariffs, but it is clear 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 thereafter, that he could not recover. AVhile it is true that protest is not necessary, a shipper, when an illegal advance is made, should not continue paying it, without objection or protest until a large claim has accumulated against the car- rier. § 216. Damages — Interest and Attorneys Fees. — It is the practice of the Commission to allow interest at six per cent on awards of damages. The statute makes no provision for interest, but the loss of money is an injury and to give "the full amount of damages" must include interest. That the Commission has this power, has been asserted when a protest was made,""* though it would seem from the authori- ties discussed in the next preceding section that a protest is immaterial.^" Attorneys fees are provided for by the statute and may be fixed by the court when the award of the Commission is sued on and recovery is had. The statute is a valid law/" The Commission has no authority and does not assume to award attorney's fees,"' nor can attorney's fees be allowed by the courts for the services of an attorney before the Com- 143. Denver & R. G. R. Co. v. R. Co. v. Baer Bros. Merc. Co., Baer Bros. Merc. Co., 209 Fed. 577, 209 Fed. 577, 581 and cases there 580, 126 C. C. A. S99; Chicago M. cited, 126 C. C. A. 399. No at- & St. P. Ry. Co. V. Harmel, 240 torney's fees in suits in state court Fed. 381, 153 C. C. A. 307. for excess rate, Kansas City Sou. 144. Mo. Pac. Ry. Co. v. Fergu- Ry. Co. v. Tonn, 102 Ark. 20, 143 son Saw Mill Co., 235 Fed. 471, S. W. 577. and cases cited 482, 149 C. C. A. 20. 146. Council v. Western & A. 145. Chicago, B. & Q. R. Co. v. R. Co., 1 I. C. C. 399, 1 I. C. R. Feintuch, 191 Fed. 482, 488, 489, 638; Washer Grain Co. v. Mis- 112 C. C. A. 126; Denver & R. G. souri Pac. Ry. Co., 15 I. C. C. 147, 548 Enforcement by the Commission. [§ 217 mission. The attorney's fees are allowed only for services in the conrts. 147 § 217. Award of Damages an Inadequate Remedy. — Prior to the Amendment of 1910, when a carrier increased a rate the only remedy the Commission could enforce was to in- vestigate upon complaint filed and, after hearing, award damages for the illegal exaction, if the rate increased was held unlawful. The Commission recognized this and stated the fact as follows : "While it is certainly true that the remedy by way of damages is utterly inadequate and inconsistent, it is appar- ently the remedy prescribed by the act to regulate commerce and the only remedy which the shipper has against the ex- action of an unreasonable interstate rate.""* Some of the federal courts held that an injunction could issue preventing an advance or at least staying the advance until the Commission could determine whether or not the increased rate was illegal,"" but there was uncertainty about the remedy. To meet this evil, the Amendment of 1910 was enacted, giving the Commission power to suspend an ad- vance."^^" § 218. Damages, Limitation on Complaint for. — Section six- teen of the Act to Regulate Commerce as amended by the Hepburn law fixed a limitation on the right of action for damages in the folloAving 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." '" Prior to this amendment there was no limitation in the statute and the limitation laws of the state in which a suit 152, 154, 155; Peller v. P. R. Co., high V. R. Co., 238 U. S. 473, 59 40 I. C. C. 84, 86; Minn. & On- L. Ed. 1414, 35 Sup. Ct. 888. tario P. Co. v. B. F. & I. F. Ry. 148. McGrew v. ]\Io. Pac. Ry. Co., Co., 47 I. C. C. 208. 8 I. C. C. 630. 147. Meeker v. Lehigh Valley 149. Sees. 304 and 305, post. R. Co., 236 U. S. 412, 59 L. Ed. 150. Sec. 398, post. 644, 35 Sup. Ct. 328; Mills v. Le- 151. Sec. 408, post. <^ 218] Of the Act to Regulate Commerce. 549 was filed controlled/''' No limitation ran prior to the ef- rective date of the Hepburn Amendment which date was held to be August 28, 1906, although the Act was approved June 29, 1906/^' A complaint filed by an association demanding reparation under general averments, which does not name the members on whose behalf it is filed and which does not with reason- able particularity specify and describe the shipments as to which the complaint is made, will not operate to stop the running of the period of limitation fixed by law/" When, however, an individual files a comi^laint for repara- tion in his own behalf, an informal complaint will stop the running of the statvite.'''^ The cause of action accrues when the shipment terminates and the complainant becomes liable for the freight and not when the money is actually paid/''^ 152. Ratican v. Terminal R. Asso., 114 Fed. 666. Contra holding R. S. U. S. § 1047 ap- plied. Carter v. New Orleans & N. E. R. Co., 143 Fed. 99, 74 C. C. A. 293; Cattle Raisers' Asso. V. Chicago, B. & Q. R. Co., 10 I. C. C. 83. 153. Nicola, Stone & Myers Co. V Louisville & N. R. Co., 14 I. C. C. 199, 206. See also Kile, Morgan & Co. v. Deepwater Ry. Co., 15 I. C. C. 235; Nollenberger v. Mo. Pac. Ry. Co., 15 I. C. C. 595; Re When a Cause of Action Accrues, 15 I. C. C. 201, 204. 154. Missouri & Kan. ShippeBs Asso. V. Atchison, T. & S. F. Ry. Co., 13 I. C. C. 411. 155. Venus v. St. Louis, I. M. & S. Ry. Co., 15 I. C. C. 136, 137, Woodward & D. v. Louisville & N. R. Co.. 15 I. C. C. 170; Beek- man Lumber Co. v. St. Louis, I. M. & S. Ry. Co., 15 I. C. C. 274, 276; Hartman Furn. & Car- pet Co. V. Wisconsin Cent. Ry. Co., 15 I. C. C. 5a0, 531; Duluth Log Co. V. Minnesota & Int. Ry. Co., 15 I. C. C. 627; Nicola, Stone & Myers Co. v. Louisville & N. R. Co., 14 I. C. C. 199, 206; Louisville & N. R. Co. v. Dick- erson, 191 Fed. 705, 112 C. C. A. 295; but the informal complaint must refer to the particular rate involved. Acme Cement Plaster Co. V. St. Louis & S. F. R. Co.. 18 I. C. C. 376. 156. Arkansas Fertilizer Co. v. United States, 193 Fed. 667, Com. Court Opinion No. 43, p. 283; Blinn Lumber Co. v. Southern Pac. Co., 18 I. C. C. 430; The text is true only because the Trans- portation Act 1920 so provides. Sec. 408, post; Louisville Cement Co. V. L. & N. R. Co., 50 I. C. C. 538, and case cited; Lamb-Fish Lumber Co. v. Transcontinental Freight Bureau, 53 I. C. C. 221, 222 and cases cited. 550 Enforcement by the Commission. [^ 219 The Commission has no jurisdiction unless the claim is filed in time and cannot relieve from the operation of the statute/" § 219. General Investigations by the Commission. — The In- terstate Commerce Commission is authorized and empowered to enforce the provisions of the Act to Regulate Commerce. To accomplish which it has 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 car- riers 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, agree- ments, and documents relating to any matter under investiga- tion. 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 hear- ing. And in case of disobedience to a subpoena the Com- mission, or any party to a proceeding before the Commis- sion, 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." ^"* 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 157. Werner Saw Mill Co. v. II- Ry. Co. v. Ferguson Saw Mill Co., linois Cent. R. Co., 17 I. C. C. 388; 235 Fed. 474, 484, 149 C. C. A. 20. Morrisdale Coal Co. v. Penn. R. 158. Sec. 12 of Act; Sec. 390, Co., 230 U. S. 304, 57 L. Ed. 1474. 2>\s^. 33 Sup. Ct. 938; To stop the run- 15S. Int. Com. Com. v. Brimson. ning of the statute there must 154 U. S. 447, 38 L. Ed. 1074. be a definite claim for reparation 14 Sup. Ct. 1125. in the complaint filed. Mo. Pac. "§ 219] Of the Act to Regulate Commerce. 55 L each of certain named carriers "to make and file, in its office at "Washington, a full, complete, perfect and specific verified answer setting forth all facts in regard to the mat- ters complained of and responding to" certain questions re- lating to the methods of operation of the carriers and es- pecially 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 ])y the laws of the United States. Notwithstanding these denials, the Commission continued the investigation by the examination of witnesses and books and documents. It subpoenaed "W. G. Brimson, who was president and manager of five carriers incorporated under the laws of Illinois, which carriers were among those under investigation. This witness refused to answer the question as to the ownership of his companies by the Illinois Steel Company. Other witnesses refused to answer the same ques- tion. The Commission thereupon filed its petition in the cir- cuit 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 controversy 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 remanded with direc^ tions to proceed in conformity with the opinion of the Su- preme Court. The very able opinion of ]\Ir. 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 answers of appellees, will be a legitimate exertion of judicial authority in a ease or controversy to which, by the Constitution, the judicial power of the United States extends. And a final order by that court dismissing the petition of the Commission, or requiring the appellees to answer the questions propounded to them, and to produce the btooks, papers, etc., called for, wnll be a determination of questions upon which a court of the United States is capable of acting and which may be enforced by judicial process." 552 Enforcement by the Commission. [§ 220 In the Baird case/'" which was also an application of the Commission to the court to compel the testimony of wit- nesses, the defendant urged that though a complaint was filed, the complainant "did not show any real interest in the case brought." The witnesses were required to answer. In the Harriman case'" the investigation was upon the motion of the Commission, not upon complaint. The relations between the ITnion Pacific Railroad Company and other con- necting roads, whether parallel or not, were inquired about and certain questions asked were, under advice of counsel, not answered by the witnesses. The gist of the opinion is contained in a short paragraph, which is here reproduced : "We are of the 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 investi- gations by the Commission upon matters that might have been made the object of complaint. As we have already implied the main purpose of the act was to regulate the interstate business of carriers, and the secondary purpose, that for which the Commission was established, was to enforce the regula- tions enacted. These in our opinion are the purposes refer- red to ; in other words the power to require testimony is limited, as it usually is in Englifjh-speaking countries at least, to the only cases where the sacrifice of privacy is neces- sary — those where the investigations concern a specific breach of the law." In its twenty-second Annual Report (1908) the Commission pointed out the difficulties of administering the law with the limitations stated in the Harriman ease. § 220. Same Subject— Amendment of 1910.— Section 13 of the Act in force at the date of the decision, in the Harriman case supra, after providing for hearings on complaint, in ad- dition to the power conferred by section 12 supra, gave power to the Commission to "institute any inquiry on its own motion in the same manner and to the same eflPect as 160. Int. Com. Com. v. Baird, 161. Harriraau v. Int. Com. 194 U. S. 25, 48 L. Ed. 860, 867. Com., 211 U. S. 407, 419, 420, 53 24 Sup. Ct. 563. L. Ed. 253, 29 Sup, Ct. 115. § 220] Of the Act to Regulate Commebce. 553 though complaint had been made." The same section as amended by the Act of 1910"' materially enlarges the powers of the Commission in this respect, giving it full authority and power "on its own motion in any case and as to any matter or thing concerning Avhich a complaint is authorized to be made, to or before said Commission by any provision of this Act, or concerning which any question may arise under any of the provisions of this Act, or relating to the enforcement of any of the provisions of this Act. And the said Com- mission shall have the same powers and authority to proceed with any inquiry instituted on its own motion as though it had been appealed to by complainant on petition under any of the provisions of this Act, including the power to make and enforce any order or orders in the case, or relating to the matter or thing concerning which the inquiry is had excepting orders for the payment of money." The Transportation Act 1920 increased the subjects that may be investigated, but did not change the principles which should control such investigations."'' In the Harriman case this quaere was propounded: "Whe- ther Congress has unlimited power to compel testimony in regard to subjects which do not concern direct breaches of the law, and whether, and to what extent, it can delegate such power." It need not be said that Congress has unlimited power in this respect but it would seem that the power granted to the Commission as stated herein was a proper and constitutional delegation because necessary to the perform- ance of the duties of the Commission under the Act to Regu- late Commerce. The Goodrich Transit Co. case, while not directly in point, supports this statement."* The provisions of the Act giving the Commission power to prescribe methods of accounting and to require reports from the ea'rriers subject to its jurisdiction, are complementary to 162. Sec. 393., vost. reversing Commerce Ct. in Gov.,1- 163. Transportation Act 1920; rich Transit Co. v. Interstate Coin. Sec. 416; Int. Com. Act, Sec. 13; Com., 190 Fed. 943, Commerto Sees. 393, 393 A, 393 B, post. Court Opinions Nos. 21-24, p. 9.5; 164. Int. Com. Com. v. Good- See in this connection: Smith rich Transit Co., 224 U. S. 194, v. Int. Com. Com., 245 U. S. 33, 56 L. Ed. 729, 32 Sup. Ct. 436, 62 L. Ed. 135, 38 Sup. Ct. 34. 554 F'NFORCEMENT BY THE COMMISSION. [§ 221 the po^vel■ to make general investigations, and these powers relating to *he accounts which snch carriers must keep are valid/" In making investigations into the "accounts, records and memoranda" kept by the carriers, the Commission has no power to investigate general correspondence and original documents not required to be entered on their books/'* The rather extraordinary avowal by counsel asking the questions that they were asked as the begining of "an attempt to go into the whole business of the Armour car lines — a fishing expedition into the affairs of a stranger for the chance that something discreditable might turn up," resulted in the Ellis case'"' in a refusal by the witness to answer the questions. After making the statement in the quotation above, the Su- preme Court held that the Commission had no power to de- mand answers to such questions. § 221. Commission May Ask the Aid of Courts to Enforce the Law. — AVe have seen that the Commission may apply to courts to aid it in obtaining testimony in investigations relating 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 Etates 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 the Act to Regulate Commerce and for the punishment of all violations thereof. At the request of the Commission suit was filed and an in- junction granted enjoining a carrier from engaging in inter- state commerce without filing tariffs and making reports as required by laM^ and also enjoining discriminatory practices.^'* 165. Kansas City S. Ry. Co. v. 167. Ellis v. Interstate Com. U. S., 231 U. S. 423, 58 L. Ed. Com., 237 U. S. 434, 59 L. Ed. 926, 34 Sup. Ct. 125. 1036, 35 Sup. Ct. 645. 166. United States v. L. & N. R. 168. United States v. Union Co., 212 Fed. 486; affirmed U. S. Stock Yard & Transit Co., 226 U. V. L. & N. R. Co., 236 U. S. 318, S. 286, 57 L. Ed. 226, 33 Sup. Ct. 59 L. Ed. 598, 35 Sup. Ct. 363; 83, same .styled case in Commerce rrnited States v. N. C. & St. L. Court, 192 Fed. 330, Opinion Ry. Co., 217 Fed. 254. Com. Ct. No. 15, p. 189. § 222] Of the Act to Eeguivvte Commerce. 555 § 222. Commission Has Power to Prescribe Rates for the Future. — AVhen the Act to Regulate Commerce was originally passed the Commission appointed thereunder, believing the law so authorized, exercised the power to prescribe rates for the future. That this power was not delegated to the Com- mission prior to the Hepburn amendment was definitely de- cided by the Supreme Court in Interstate Commerce Com- mission 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 describe the tariff of rates which shall control in the future." Under the old law the Commission had and exercised the power to declare a particular advance in rates illegal. The exercise of this power practically meant pre- scribing 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 il- legal, and the whole advance was held to be the measure of reparation allowed shippers."" The Amendments of 1906, 1910 and of 1920 give the Com- mission power to initiate rates, fares and charges and to prescribe minimum and maximum or minimum or maximum rates, fares and charges."^ When a rate, regulation or practice of a common carrier is within the jurisdiction conferred on the Commission it may prescribe what shall be such rate, regulation or practice for the future, and when the Commission acts on suUstantial evidence in accordance with law, its orders in respect to the questions within its jurisdiction will not be set aside by the courts."" "But," said Mr. Justice Lamar, delivering the 169. Interstate Com. Com. v. 171. Sec. 16, Interstate Com. Cincinnati, N. O. & T. P. R. Co.. Act, Sec. 15, par. 1, Sec. 395, post. 167 U. S. 479, 42 L. Ed. 243, 17 172. Interstate Com. Com. v. Sup. Ct. 896. Illinois Cent. R. Co., 215 U. S. 170. Southern Ry. Co. v. Tift, 4.^2, 54 L. Ed. 280, 30 Sup. Ct. 206 U. S. 428, 51 L. Ed. 1124, 155; Interstate Com. Com. v. Chi- 27 Sup. Ct. 109; Southern Pine cago & A. R. Co., 215 U. S. 479, Lumber Co. v. Sou. Ry. Co., 14 54 L. Ed. 291, 30 Sup. Ct. 163; I. C. C. 195; Nicola Stone & Myers Interstate Com. Com. v. Chicago, Co. V. Louisville & N. R. Co., 14 R. I. & P. Ry. Co., 218 U. S. 88, I. C. C. 199. 54 L. Ed. 946, 30 Sup. Ct. 651; 556 Enforcement by the Commission. [^ 222 opinion of the Supreme Court, "the legal effect of evidence is a question of law. A finding without evidence is beyond the power of the Commission. An order based thereon is contrary to law, and must, in the language of the statute, be 'set aside by a court of competent jurisdiction.' " ^^' The "opinion" of the Commission upon which it may act must be based upon a full hearing at which evidence is re- ceived, of which the carrier is apprised and given an oppor- tunity to meet."* The Commission has entered many orders under the au- thority granted by this provision. Illustrative of these are : distribution of cars,^'^ prescribing rates,"' division of rates,"^ terminal charges,"* ordinary switch connections/'* prohibit- Interstate Com. Com. v. Dela- ware, L. & W. R. Co., 220 U. S. 235, 55 L. Ed. 448, 31 Sup. Ct. 3.92. 173. Interstate Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 57 L. Ed. 431. 33 Sup. Ct. 185, reversing Louisville & N. R. Co. V. Interstate Com. Com., 195 Fed. 541, Opinion Com. Ct. No. 4, p. 325, 375. 174. Atlantic C. L. R. Co. v. In- terstate Com. Com., 194 Fed. 449, Opinion Com. Ct. No. 3, p. 255. 175. Traer v. Chicago & A. R. Co., 13 I. C. C. 451; Chicago & A. R. Co., and Illinois Cent. R. Co. V. Interstate Com. Com., 173 Fed. 930; Interstate Com. Com. V Illinois Cent R. Co., 215 U. 5. 452, 54 L. Ed. 280, 30 Sup. Ct. 155; Interstate Com. Com. v. Chicago & A. R. Co., 215 U. S. 479, 54 L. Ed. 280, 30 Sup. Ct. 163; Hillsdale Coal & Coke Co. V. Pennsylvania R. Co., 19 I. C. C. 356, sustained, Ptennsylvania R. Co. V. Interstate Com. Com., 193 Fed. 81, Opinion Com. Ct. No. 31, p. 275. 176. Burnham-Hanna-Munger Dry Goods Co. V. Chicago, R. I. & P. Ry. Co., 14 I. C. C. 299, order enjoined, Chicago, R. I. & P. Ry. Co. "v. Interstate Com. Com., 171 Fed. 680, Commission sustained. Interstate Com. Com. v. Chicago, R. I. & P. Ry. Co., 218 U. S. 88, 96, 54 L. Ed. 946, 30 Sup. Ct. 651, holding that the power ex- tends to the regulation of old or new rates, notwithstanding changes in business may be nec- essary. 177. Eichenberg v. Southern Pac. Co., 14 I. C. C. 250, Injunction denied. Southern Pac. Terminal Co. V. Interstate Com. Com., 166 Fed. 134, Commission sustained, Southern Pac. Terminal Co. v. Interstate Com. Com. 219 U. S. 498, 55 L. Ed. 310, 31 Sup. Ct. 279. 178. Cincinnati & C. Traction Co. V. Baltimore & O. S. W. R. Co., 20 I. C. C. 486, enjoined, Balti- more & 0. S. W. R. Co. V. United States. 195 Fed. 962, Opinion Com. Ct. No. 60, p. 431, order voided. United States v. Balti- more & O. S. W. R. Co., 226 U. S. 14, 57 L. Ed. 104, 33 Sup. Ct. 5. 179. Corp. Com. of North Caro- § 223] Of the Act to Regulate Commerce. 557 ing discrimination,""' icing charges and freecooling/" The Commission, however, has no jurisdiction to fix rates based upon estoppel of the carrier/"' AVhen relief is denied to the shipper, the order cannot be set aside by a court.""* § 223. Suspension of Rates, Regulations and Practices. — The Act of 1910 gives the Commission authority, with or without complaint or other formal pleadings, but upon rea- sonable notice, temporarily to suspend and, after hearing, to make such orders in reference to fares, charges, classifications, regulations, and practices, as would be proper in a proceediiig after such fares, etc., became eft'ective. The bfurden of proof to justify the increased rate is on the carrier at all hearings lina V. Norfolk & W. Ry. Co., 19 I. C. C. 303, order sustained, Norfolk & W. Ky. Co. v. United States, 195 Fed. 953, Opinion Com. Ct. No. 40, p. 413; New Ok leans Board of Trade v. Louis- ville & N. R. Co., 17 I. C. C. 231, order set aside, Louisville & N. R. Co. V. Interstate Com. Com., 195 Fed. 541, Opinion Com. Ct. No. 4, pp. 325, 375, Commerce Ct. re- versed. Interstate Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 57 L. Ed. 431, 33 Sup. Ct. 185; Chamber of Commerce of New- port News V. Southern Ry. Co., 23 I. C. C. 345, sustained, South- ern Ry. Co. V. United States, 204 Fed. 465, Opinion Com. Ct. No. 82, p. 603; Railroad Com. of La. V. St. Louis & S. W. Ry. Co., 23 I. C. C. 31, sustained, Texas & Pac. Ry. Co. v. United States, 205 Fed. 380, Opinion Com. Ct. No. 68, p. 655, (Shreveport Case); Houston, B. & W. T. Ry. Co. V. United States. 234 U. S. 342, 58 L. Ed. 1341, 34 Sup. Ct. 833. 180. Atchison, T. & S. F. Ry. Co. V. United States, 203 Fed. 56, 59, Opinion Com. Ct. No. 61, p. 537. For history of case, see Arling- ton Heights Fruit Co. v. South- ern Pac. Co., 22 I. C. C. 149. Atchison, T. & S. F. Ry. Co. v. Interstate Commerce Com., 190 Fed. 591, Opinion Com. Ct. No. 7, p. 83. 181. Arlington Heights Fruit Co. V. Southern Pac. Co., 20 I. C. Co. 106; Re Precooling and Pre- icing, 23 I. C. C. 267, order sus- tained, Atchison, T. & S. F. Ry. Co. V. United States, 204 Fed. 647, Opinion Com. Ct. No. 41, p. 627, affirmed, Atchison, T. & S. F. Ry. Co. V. United States, 232 U. S. 199, 58 L. Ed. 568, 34 Sup. Ct. 291. 182. Southern Pac. Co. v. Inter- state Com. Com., 219 U. S. 433, 55 L. Ed. 283, 31 Sup. Ct. 288, re- versing Southern Pac. Co. v. In- terstate Com. Com., 177 Fed. 963, and the Commission in Western Oregon Lumber Mnfg. Assn. v. Southern Pac. Co., 14 I. C. C. 61. 183. Proctor & Gamble v. United States, 225 U. S. 282, 56 L. Ed. 1091, 32 Sup. Ct. 761; Louisville & N. R. Co. V. United States, 207 Fed. 591, Opinion Com. Ct. No. 86, p. 699. See Sec. 308 A., post. 558 Enforcement by the Commission. [§ 223 involving a rate increased after January 1, 1910, or of a rate sought to be increased after the passage of the Amend- ment of June 18, 1910/'' This hearing under the Transportation Act 1920 must be concluded in 150 days, else the new individual or joint rate, fare, charge, classification or practice becomes effective ; sub- ject, however, to the carrier being required to render an ac- counting should the Commission thereafter condemn the charge."^ •The Commission has held manj^ investigations under this section, the most conspicuous of which are the Advances in Rates — Eastern case, ^*" Advances in Rates — "Western case,^*' Five Per Cent Advance,"* and in the Western Advance Rate case 1915.'-''' In the Eastern Advance case the question of the burden of proof was discussed, and it was there held that the Amendment of 1910 was unlike the English Act on a similar subject. Said the Commission: "Nor should our statute receive exactly the same interpre- tation which has been put upon the English act. That act provides that the carrier shall justify the 'increase of the rate.' Our act provides that the burden of proof shall be upon the carrier to show that the 'increased rate' is just and reasonable. The English act creates a presumption that the rates in effect on December 31, 1892, were reasonable rates, and the justice of any increase must be tried by that stan- dard. Our act does not intend to enact that all rates in ef- fect on January 1, 1910, are just and reasonable. Upon the contrary, it is open to any shipper or to this Commission to attack such a rate as unjust and unreasonable. The only effect of our statute is to cast, in certain cases, the burden of proof upon the carrier." It was also then held that rates otherwise reaosnable would not be permitted to be advanced "for the purpose of bol- 184. Re Rates on Crushed Stone, 187. Advance in Rates, West- 29 I. C. C. 136. ern Case, 20 I. C. C. 307. 185. Transportation Act 1920, 188. Five Per Cent Case, 31 I. amending Sec. 15, par. 7 2)osr. C. C. 351, 32 I. C. C. 325. sees. 398, 399. 189. Western Rate Advance Case 186. Advances in Rates, East- 1915, 35 I. C. C. 497. ern Case, 20 I. C. C. 243. § 224] Of the Act to Regulate Commerce. 559 stering np the credit of our railroads," and that ''uo general advance in rates should * * * be permitted until car- riers have exhausted every reasonable effort toward economy in their business."^"" § 224. Through Routes and Joint Rates. — The Commission has, after hearing, on a complaint or upon its own initiative, the right to establish joint rates and prescribe the divisions thereof, and the terms and conditions under which through routes shall be operated. Under what circumstances a through route and joint rate shall be prescribed has been discussed herein, section 195 supra, and need not be repeated. It is sufficient to say that when the carriers over whose lines the through route is to be established are subject to the jurisdic- tion of the Commission, the Commisison has a discretion as to whether or not it wmII establish the through route and joint rate."^ As shoAvn in section 195 this discretion must be exercised within the terms of the statute. § 225. Allowances for Services or Instrumentalities. — The Amendment of 1906 provides : "If the owner of property transported under this Act directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the Commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to- be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and fix the same by ap- propriate order." This authority of the Commission was dis- cussed in the chapter on Equality of Rates. § 226. Powers Enumerated, Not Exciude Others. — By the Amendment of 1906, concluding section 15 of the Act, it was provided, "the foregoing enumeration of powers shall not exclude any power which the Commission would other- 190. Pp. 253, 254, 255, 279 of 191. Truckers Transfer Co. v. Opinion Eastern Case, supra. Charleston & W. C. Ry. Co., 27 I. C. C. 275, 277. 560 Enforcement by the Commission. [^ 227 wise have in the making of an order under the provisions of this Act." Obviously this provision is not a grant of power; it merely evidences a legislative intention not to limit any general grant by specific provisions relating to particular powers, an intention that the Act should be construed as remedial. The general purposes of the Act were to prevent unjust rates, to require fair play between shippers, and to make rates certain in order tliat such fair play might exist, and Congress has emphasized the intention that these general purposes were not to be unduly limited. The courts have given a broad construction to the Act in determining whether or not power exists to effectuate these general purposes.'*' This principle was well stated by the Commerce Court as follows : "A statute of the scope of the interstate commerce act, designed to regulate the vast interstate transportation business of the country, is not to be narrowly interpreted in accordance with the economical or physical conditions prevailing at the time of its enactment."'"^ The outlook of the Commission must be as comprehensive as the whole country and as to all subjects within its pre- scribed authority it has power to make such orders as are necessary to enforce the great remedial purpose of the Act."* § 227. Effect of Commission's Orders. — When an award of damages is made "the findings and order of the Commission 192. Interstate Com. Com. v. 25, p. 147. This case was re- Goodrich Transit Co., 224 U. S. versed but tlie principle quoted 194, .56 L. Ed. 729, 32 Sup. Ct. not referred to, Omaha & C. B. 436, reversing Goodrich Transit Street Ry. Co. ^'. Interstate Com. Co. V. Interstate Com. Com., 190 Com., 230 U. S. 324, 57 L. Ed. Fed. 943, Opinion Com. Ct. Nos. 1501, 3.'i Sup. Ct. 890. See also 21-24, p. 95; Kansas City S. Ry. Lysaght v. Lehigh V. R. Co., 254 Co. V. United States, 231 U. S. Fed. 351. 423, 58 L. Ed. 296, 34 Sup. Ct. 194. Interstate Com. Com. v. 125, affirming same styled case, Chicago. R. I. & P. Ry. Co., 218 204 Fed. G41, and sustaining ac- U. S. 88, 54 L. Ed. 946, 30 Sup. counting orders of the Commis- Ct. 651; Interstate Com. Com. v. sion. Chicago, B. & Q. R. Co., 218 U. 193. Omaha & C. B. Street Ry. S. 113, 54 L. Ed. 959, 30 Sup. Ct. Co. V. Interstate Com. Com., 191 060. Fed. 40, Opinion Com. Ct. No. <§ 228] Of the Act to Regulate Commerce. 561 shall be prima facie evidence of the facts therein stated." AVhere orders other than an award of damages are made they are binding "nnlpss * * * suspended or set aside by a court of competent jurisdiction." In what cases and for what causes the courts may set aside these orders will be discussed in a subsequent chapter. § 228. Commission's Control over Its Orders. — The Com- mission is authorized to suspend or modify its orders upon such notice and in such manner as it shall deem proper, and it may grant rehearings. These powers will be discussed in the chapter on procedure of the Commission. Until such orders are suspended or modified, it is the duty of every common carrier, its agent and employees, to observe and comply therewith. The Commission, the United States by the Attorney-General, as well as parties to the orders made by the Commission, may apply to the United States District Courts for the enforcement of such orders. § 229. Commission May Employ Attorneys. — "The Commis- sion may employ such attorneys as it finds necessary for proper legal aid and service of the Commission or its members in the conduct of their work, or for proper representation of the public interest in investigations made by it or cases or proceedings pending before it, whether at the Commission's own instance or upon complaint, or to appear for or represent the Commission in any case in court; and the expenses of such employment shall be paid out of the appropriation for the Commission." This power the Commission exercises, its attorneys appear- ing in investigations before the Commission or in advance rate cases and other investigations of general interest, and cases where orders of the Commission are involved. § 230. Records of Commission. — Copies of schedules and classifications and tariffs of rates, fares and charges filed with the Commission, and the statistics, tables and figures con- tained in the reports of carriers made to the Commission as required by law, are public records and shall be received as prima facie evidence of what they purport to be in investi- gations by the Commission and in all judicial proceedings, 5G2 Enforcement by the Commission. [>§. 231 and certified copies shall be received in evidence witli like effect as the originals. Section 14 of the Act makes the authorized publication of the reports and decisions of the Commission competent evid- ence. The Supreme Court held this not to mean that courts sliould take judicial notice of these reports and decisions, but that they were admissible without obtaining certified copies; otherwise, the rules of evidence were not changed 196 § 231. Valuation of Railroad Property. — In the Eastern Ad- vance Rate case,"" Mr. Commissioner Prouty delivering the opinion of the Commission, speaking of the facts which must be considered in determining the question as to what net earnings the carriers are entitled, stated the well known principle: "Both the value of the property and what is a fair return upon that value must be considered," and then said: "Some states have authorized and even instructed their railway commissions to put a value upon the property of railways operating within their borders. In some instances the elements to be considered in determining that value have been prescribed by statute, and the effect of the valuation when made is indicated. This commission has no such au- thority. We cannot in this case fix in terms the value of any one of these r.^ilroads, nor Avould that value, if determined in this case, be binding in subsequent proceedings ; but, mani- festly, in order to decide the issue presented we must have a general notion of the value of the properties of these de- fendants and must form an idea of the elements which should properly enter into the determination of that value." The opinion then proceeds to state and discuss the rules established in the Smyth-Ames case,"'^ and to point out the benefit a knoAvledge of the value of the property "devoted to the pnblice service" would be to the Commission. Congress, by Act approved March 1, 1913, amending the Act to Regulate Commerce,"^ provided that the "Coramis- 195. Robinson v. Baltimore & Case, 20 I. C. C. 243, 256 to 277. O. R. Co., 222 U. S. 506, 508, 56 L. 197. Smyth v. Ames, 169 U. S. Ed. 288, 32 Sup. Ct. 114, affirm- 466, 42 L. Ed. 819, 18 Sup. Ct. ing same styled case, 64 W. Va. 418. 406, 63 S. E. 323. 198. Sec. 19a of Act; Seo. 420, 196. Advances in rates. Eastern post. § 232] Of tue Act to Regulate Commerce. 563 sioD shall * * * investigate, ascertain and report the value of all the property owned or used by every common car- rier subject to the provisions of this (the) act. * * * The Commission shall make an inventory which shall list the prop- erty of every common carrier subject to the provisions of this (the) Act in detail, and show the value thereof * * *^ and shall classify the physical properties, as nearly as prac- ticable, in conformity with the classifications of expenditures for road and equipment, as prescribed by the Interstate Com- merce Commission." § 232. Valuation, How Made. — The valuation provided bj^ the Amendment shall include in detail, (1) the original cost cf all property to date, the cost of reproduction new, the cost of reproduction less depreciation, and an analysis of the methods used and the reasons for their differences if any; (2) the original cost of all lands, rights of way and terminals and the present value of the same; (3) the same information as to property held for purposes other than those of a common carrier; (4) information relating to the issuance of stocks, bonds or other securities and other financial ar- rangements; and (5) information as to the value of gifts and grants. Except as provided by the statute, the Com- mission is given power to prescribe the method of procedure to be follow^ed in the conduct of the investigation. The carriers are required to aid in the investigation by furnish- ing information and access to the sources thereof. After such valuation is made, the Commission shall in like manner keep itself informed of all extensions and improve- ments or other changes in the condition and value of the property of such common carriers, revising its valuations from time to time to fit such changes. Application uiay be made to the District Courts of the United States to compel a performance by the carriers of the duties placed on them by the Amendment. § 233. Finality and Effect of Valuation. — Provision is made for notice of the completion of the tentative valuation of the property before such valuation shall become final ; pro- test may be filed thereto and hearings had. 564 Enfoecement by the Commission. [§ 234 After hearing, the Commission shall issue an order making a final valuation, which valuation shall be published, and when published it is prima facie evidence of the value of the property in all proceedings under the Act to Regulate Commerce. The valuation so fixed is subject to modification b}^ the Commission. In making its valuation the Commission disregarded the current value of the right of way. On appeal to the Supreme Court this ruling was held not to be a compliance with the statute.'"" The requirement of Section 15a added by the Transportation Act 1920 that rates must be established which under the circumstances stated shall yield five and one-half per centum on the fair value of the aggregate property makes the valuation powers of the Commission much more import- ant.^"" § 234. Office of Commission. — The principal office of the Commission is in the city of Washington, where its general sessions are held. Its inquiries may be, and frequently are, prosecuted by one or more Commissioner or an examiner who may hold sessions in different parts of the United States. The testimony in cases is usually taken at some place most convenient to the parties interested ; this is written out, and the Commission at Washington determines what order shall be entered. § 235. Annual Reports from Carriers. — The Commission is authorized to require annual reports from all common car- owners of all railroads engaged in interstate commerce. The statute provides what these reports shall contain and gives the Commission authoritj^ to prescribe the manner in which such reports shall be made. The time for filing these re- ports may be extended by the Commission, which also has riers subject to the provision.s of the Act and from the authority "by general or special orders to require said car- riers, or any of them, to file monthly reports of earnings and expenses, and to file periodical or special, or both periodical and special, reports concerning any matters about which the Commission is authorized or required by this or any other 199. Kansas City So. Ry. Co. v. L. Ed. , 40 Sup. Ct. . United States, 250 U. S. , 64 200. Sec. 15 a; Sec. 405 c, post. § 235] Of the Act to Eegulate Commerce. 565 law to inquire or to keep itself informed or which it is re- quired to enforce." Penalties and forfeitures are provided for a failure to comply with the orders of the Commission in this respect. Forms of accounting may also be prescribed, for violation of which prescribed forms penalties are provided. The Commission may employ examiners to inspect accounts. False entries in, or willful destruction, mutilation or altera- tion, of accounts are prohibited. The Commission may prescribe a time after which books, papers and documents may be destroyed. The Supreme Court held these provisions constitutional and applicable to water carriers engaged in interstate commerce.""^ In the Kansas City Southern case,^"^ in sustaining an order of the Commission made under authority of the section, the Supreme Court said: "In order that accounts may be stand- ardized, it is necessary that the accounts of the several car- riers shall be arranged under like headings or titles. * * * So far as such uniformity requirements control or tend to control the conduct of the carrier in its capacity as a public servant engaged in interstate commerce, they are within the authority constitutionally conferred by Congress upon the Commission." It was there held that a requirement of the Commission that when existing shops and terminal facilities were abandoned and new ones erected, that there should be charged to operating expenses "the cost of replacing the abandoned property in kind, plus the cost of removal, but less the value of salvage," was not such an order as would be set aside by a court where the Commission had proceeded "with deliberation and after proper inquiry." And this was true although the apportioumont of profits to preferred stock- holders, would, as a result of such method, be less than they would otherwise be entitled to. 201. Interstate Com. Com. v. 202. Kansas City S. Ry. Co. v. Goodrich Transit Co., 244 U. S. United States, 231 U. S. 423, 58 194, 56 L. Ed. 729, 32 Sup. Ct. 436, L. Ed. 296, 34 Sup. Ct. 125, af- reversing Goodricli Transit Co. v. firming same styled case, 204 Interstate Com. Com., 190 Fed. Fed. 641, Opinion Com. Ct. No. 943, Opinion Com. Ct. Nos. 21-24, 56, p. 641. p. 95. 5G6 Enforcement by the Commission. [§ 23G The Smith Case"" further recognized the full powers of the Commission whose powders of investigating and supervision, said the Court: "Extend to all of the activities of carriers, and to all sums expended by them which could afifect in any way their benefit or burden as agents of the public. If it be grasped thoroughly and kept in attention that they are public agents, we have at least the principle which should determine judgment in particular instances of regulation or investigation ; and it is not far from true — it may be it is entirely true, as said by the Commission — that "there can be nothing private or confidential in the activities and ex- penditures of a carrier engaged in interstate commerce." § 236. Examiners. — The Commission may employ special ex- aminers "to inspect and examine any and all accounts, records and memoranda" kept by carriers subject to the Interstate Commerce Acts. Any examiner who divulges any fact or information which may come to his knowledge during the course of examinations made by him, except in so far as he may be directed by the Commission or by a court or Judge thereof, is guilty of a crime and subject to a fine of not more than five thousand dollars, or imprisonment for a term not exceeding two years, or both. And to carry out and give effect to the provisions of the Acts Regulating Interstate Commerce or any of them, the Commission may employ special agents or examiners "who shall have power to administer oaths, examine witnesses, and receive evidence." Under these provisions, accountants are appointed as special examiners to. examine the accounts and records of the car- riers for the purpoi^fe of obtaining information to enable the Commission to perform its duties in the enforcement of the statute, and to aid in valuing the property owned or used by carriers subject to the Act. There are examiners who hear the evidence and submit reports to the Commission in general investigations made by the Commission and upon complaints brbiight before the Commission. These act somewhat as masters in chancery and of these there are the special examiners and the attorney-examin- ers, the latter hearing evidence in the more important cases. 203. Smith v. Int. Com. Com., 245 U. S. 33, 42, 43, 62 L. Ed. 135, 140, 38 Sup. Ct. 34. § 237] Of the Act to Regulate Commerce. 567 § 237. Reports of the Commission. — In addition to reports of investigations made h^^ it, "the Commission shall, on or before the first day of December in each year, make a report, which shall be transmitted to Congress, and copies of which shall be distributed as are the other reports transmitted to Congress. This report shall contain such information and data collected by the Commission as may be considered of value in the determination of questions connected with the regulation of commerce, together with such recommendations as to additional legislation relating thereto as the Commission may deem necessary; and the names and compensation of the persons employed by said Commission." § 238. Lake Erie and Ohio River Ship Canal. — Section 17 of the Act to incorjiorate the Lake Erie and Ohio River ship canal provides that canals constructed thereunder shall be open to the use and navigation of all suitable and proper vessels or other water craft upon fair and equal terms, condi- tions, rates, tolls and charges ; but all charges,rates,and,tolls, must be equal to all persons, vessels and goods under classifica- tions" to be established by the company and approved by the Interstate Commerce Commission, Rebates, drawbacks and discriminations, whether effected directly or indirectly, are prohibited and tariffs must be published, and not changed except after thirty days public notice ; but the Commission may in its discretion and for good cause shown permit changes on less notice and may modify the requirements in respect to publishing and posting schedules. § 239. Parcel Post.— The statute approved August 24, 1912, authorized the Postmaster-General to reform "subject to the consent of the Interstate Commerce Commission after investi- gation" the classification of articles mailable as well as the weight limit, the rates of postage, zone or zones, and other conditions of mailability of articles under the law creating the parcel post. § 240. Government Aided Railroads and Telegraph Com- panies. — By Act August 7, 1888, all railroad and telegraph companies to which the Ignited States has granted aid are required to construct, maintain and operate a railroad or telegraph line as may be prescribed by the act of incorpora- tion, and furnish facilities without discrimination. 568 Enforcement by the Commission. [§ 241 Complaint may be made to the Commission, or the Commis- sion may act without complaint, to obtain a performance of these duties. Penalties are prescribed for a failure to perform the duties required, and the "party aggrieved" by such failure may re- cover damages. Reports are required as of other carriers subject to the Act. Information may be given the Attorney-General by the In- terstate Commerce Commission, upon which the Attorney- General must proceed .judicially to enforce the forfeitures provided in the Act. Congress reserved the right to alter, amend or repeal the law. § 241. Common Law Remedies, Continued. — Nothing in the Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of the Act are in addition to such remedies. The above provision was in the original Act of 1887, and has not been repealed by any amendment thereof or act sup- plemental thereto. This provision must be construed conformably to the well established canons of statutory construction, and being con- strued with the whole law as required by such canons, it must be held to mean that where a common-law right cannot, consistently with the general purposes of the statute, be enforced, the injured party must obtain redress under and in accordance with the statute. Any other construction would destroy the general scheme intended to be effected by the enactment. No right is taten away, but Avhere a method for determining the right is open under the statute, that method must be pursued to the exclusion of other methods. When the statute furnishes no remedy for a wrong, or where preliminary administrative action is unnecessary to determine the right, the common law remedies may be sought.""* 204. Mitchell Coal & Coke Co. Southern Ry. Co. v. Tift, 206 U. V. Pennsylvania R. Co., 230 U. S. S. 428, 437, 51 L. Ed. 1124, 27 247, 57 L. Ed. 1472, 33 Sup. Cc. Sup. Ct. 709; United States v. 916; Texas & Pac. Ry. Co. v. Pacific & Arctic R. Co., 228 U. Cisco Oil Mill, 204 U. S. 449, 51 S. 87, 57 L. Ed. 742, 33 Sup. Ct. L. Ed. 562, 27 Sup. Ct. 358; Texas 443; St. Louis S. W. R. Co. v. & Pac. Ry. Co. v. Abilene Cot- Lewellen, 192 Fed. 540. See also ton Oil Co., 204 U. S. 426, 444, Sees. 294, 297, 298 A, 308 A, iwst. 51 L. Ed. 553, 27 Sup. Ct, 350; CHAPTER VI. PROCEDURE OF THE INTERSTATE COMMERCE COMMISSION. § 242. Scope of Chapter. 243. Switch Connections. 244. Relief under the Fourth Section. 245. Water Competition. 246. Railroad Owned Steamships. 247. Changes in Tariffs. 248. Forms of Tariffs. 249. Through Routes. 250. Complaints for Damages. 251. Same Subject — Order of Commission. 252. General Investigations. 253. Procedure in Formal Cases — Complaint. 254. Notice before Hearing. 255. Formal Complaints — Answer. 256. Hearings by the Commission. 256a. Proposed Reports. 257. Orders Relating to Rates and Practices. 258. Suspension of Rates. 259. Practices in Suspension Cases Where There Exist Intrastate Rates Lower than Proposed Interstate Rates. 260. The Weak and the Strong Roads. 261. Other Orders. 262. Service of Orders of the Commission. 263. Rehearings by the Commission. 264. Valuation of Property. 265. Oral Argument. 266. Estoppel by Former Order of the Commission. 267. Rules of Procedure Prescribed by the Commission. 268. Public Sessions and Hearings. 269. Parties. 269a. Interventions. 270. Complaints. 271. Answers. 272. Reparation Statements. 273. Service of Papers. 274. Amendment to Pleadings. 275. Continuances. 276. Stipulations Desirable and Must Be in Writing. 277. Hearings. 278. Depositions, How Taken. 279. Witnesses and Subpoenas. 280. Documentary Evidence. 281. Briefs and Oral Argument. (569) 570 Procedure of the Interstate. [§ 242 282. Rehearings. 283. Free Copies of Transcript of Testimony, When Furnished. 284. Orders Must Be Complied with and Notice Given to the Secretary of the Commission. 285. Fourth Section Applications. 286. Suspension of Rate Increases. How Obtained. 287. Secretary to Give Information to Parties. 288. Address of the Commission. 288a. Specifications As to Complaints, etc. 288b. Office and Address of Commission. 289. Form of Complaints. 290. Form of Answer. 291. Intervening Petition. 291a. Petition for Rehearing. 291b. Form of Reparation Statement. 291c. Form of Complaint Against Federal Agent. § 242. Scope of Chapter. — In the next preceding chapter there is a discussion of the powers and duties of the Inter- state Commerce Commission. From this statement of these powers and duties it was seen that the jurisdiction of the Commission divides itself into those investigations, (a) which have to do with the general execution of the Commerce Acts in which parties are not directly involved and in which the w^liole public is interested, and (b) into investigations which, while affecting the whole public, more directly affect in- dividuals who are parties to the proceeding. It is the purpose of this chapter to discuss the procedural statutes and rules adopted and used in each of these kinds of investigations. The Interstate Commerce Commission is not a court, and while it hears testimony 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. § 243. Switch Conne'ction. — To invoke the authority of the Commission with reference to the installation and opera- tion of switch connections, there must exist a failure by the carrier to perform its duty in this respect, an application in writing by a .shipper tendering interstate traffic for transpor- tation, or by an owner of a lateral branch line of railroad making complaint as provided in section 13 of the Act. '^ 244] Commerce CoMMissioisr. 571 Upon which complaint the Commission shall hear and in- vestigate and determine as to the safety, practicability and justification of such connections and the reasonable com- pensation therefor. After which the Commission may make ain order directing a compliance with the law requiring such connection/ While formerly the Commission could not compel a car- rier to permit the use of its right of way by another carrier,^ the power given by Transportation Act 1920 over car service and terminals authorizes the Commisson under the terms stated in the Act to open terminals, spurs and switches to a joint use. In requiring connections between rail lines and the dock of a water carrier the Commission has full authority to deter- mine the terms and conditions upon which the connecting tracks, when constructed, shall be operated ; and, in the con- struction or operation of such tracks it may determine what sum shall be paid to or by each carrier.* § 244. Relief under Fourth Section.— The fourth section of the Act prescribes a relation between long and short hauls and between through rates and aggregates of the inter- mediate rates. The section gives the Commission authority to grant relief from the absolute provisions of the statute. There must be an application to the Commission by the car- rier showing a "special case," some special reason for the relief, upon which, after investigation, the carrier may be authorized ''to charge less for longer than for shorter dis- tances;" and the Commission may from time to time provide the extent to Avhich the carrier may b^e relieved from the operation of the section. The first statement of authority to grant relief a])plies to that part of the section referring to the long and short haul ; the second statement is general and applies to the "operation of this section." The making of the application stays the effect of the prohibition "until a determination of such application by the Commission."* 1. Sec. 1 of Act; Sec. 344, post. S. Sec. 6 of Act; Sec. 376, post. 2. Consolidated Pump Co. v. Re Wli|arf Facilities ftt Peusa- Lake Shore & M. S. Ry. Co., 27 cola, Fla., 27 I. C. C. 252, 260. I. C. C. 519. 4. Sec. 4 of Act; Sec. 350, post. 572 Peocedure op the Interstate. [^ 244 The carriers filed over eleven thousand two hundred ap- plications with the Commission pursuant to the statute. There is nothing in the "Act prescribing the form, contents or breadth" of applications filed thereunder, and the Com- mission held that blanket applications covering many devia- tions from the statute might be filed.^ The statute does not give arbitrary power to the Commis- sion to permit or refuse exceptions, but its action "must be limited and conditioned upon the presence in special cases of conditions and circumstances which would make such ex- ceptions legal and proper and in- no wise antagonistic to the other provisions of the Act. ' ' " That Congress could make an absolute prohibition of a greater charge for a longer haul than for the shorter, was stated by the Commission discussing the procedure under the section, and it was said that the burden of proof was on the carrier seeking relief from the statutory general rule, a burden that required proof not only of the cause of the lower rate at the longer distance point "but of the reason- ableness of the rates applied to intermediate points."'' It has already been shown that the reasonableness of the rate to the intermediate point must be considered, and in addi- tion to that factor the 'Commission considers water* and market competition"* and the fact, if a fact, that the road 5. Southern Furniture Mnfg. C. 519, 530; Janesville Clothing Assn. V. Southern Ry. Co., 25 1. Co. v. Chicago & N. W- Ry. Co., C. C. 379, 381. See Rule 18 of 26 I. C. C. 628; Commercial Club the Rules of Practice of the of Duluth v. Baltimore & O. R. Commission: Sec. 285, jiost. Co., 27 I. C. C. 639, 660. 6. Railroad Com. of Nevada v. 8. Re Transportation of Wood, Southern Pac. Co., 21 I. C. C. Hides and Pelts, Railroad Com. 329, 341; Bluefild Shippers Assn. of Oregon v. Oregon R. & N. V. Norfolk & W. Ry. Co., 22 I. Co., 23 I. C. C. 151, 179; Bowling C. C. 519, 5a0; Inter Mountain Green Business Men's Protective Rate Cases, 234 U. S. 476, 58 L. Assn. v. Louisville & N. R. Co., Ed. 1408, 34 Sup. Ct. 986. 24 I. C. C. 228, 240; Re Lumber 7. Re Application Southern Pac. Rates to Ohio River Crossings, Co., Long and Short Haul 25 I. C. C. 50. Docket 1243, 22 I. C. C. 366, 374. 9. Kellogg Toasted Corn Flakes See also as to burden of proof: Co. v. Michigan Cent R. Co., 24 Bluefield Shippers Association v. I C. C. 604; Re Lumber Rates Norfolk & W. Ry. Co., 22 I. C. to Ohio River Crossings, 25 I. C. § 245] CoMMEKCE Commission. 573 reaching the longer distance point is a circuitous route." Mere railway competition was said to be ineffective to meet the burden on the carriers. The Commission, speaking of such competition and the resulting violation of the Act, said : "So far as the facts before us disclose, this condition has been brought about entirely by coniipetition between dif- ferent railways serving New Orleans. If no other element enters into the situation this would probably be wrong."'' ThQ Transportation Act 1920 restricts the authority of the Commission, section 349, post. Under the amended Act the rate to the more distant point must be "reasonably com- pensatory," the circuitous litie cannot charge more to inter- mediate points no longer distant than that of the direct line, than it charges to the more distant point and potential water competition shall constitute no authority to grant relief. § 24.5. Water Competition. — The last paragraph of section 4 which prohibits carriers from increasing rates which have been lowered to meet water competition "unless after hear- jj^g * * * j^ shall be found that such proposed increase rests upon changed conditions other than the elimination of water competition," not only puts the burden on the carriers, but limits the reasons which are valid explanations of the increase by excluding as one of such "the elimination of water competition." In order to make such increase the Commission must con- sent after hearing. Suspension of lake navigation during the winter months is not an elimination of water competition, and during these C. 50, 59. In each of these cases C. C. 192, 195; Edwards & Brad- the effectiveness of market com- ford Lumber Co. v. Chicago, B. petition was considered aa de- & Q. R. Co., 25 I. C. C. 93, 95 cided. holding that a route exceeding 10. Wright Wire Co. v. Pitts- the short line by 15 per cent was burg & L. E. Ry. Co., 21 I. C. a circuitous route. See also C. 64, quoting Judge Cooley's Fourth Section Application in opinion first construing the origi- the Southeast, .30 I. C. C. 153, 32 nal Fourth Section; Gile & Co. I. C. C. 61. V. Southern Pac. Co., 22 I. C. C. 11. Re Transportation Lime, 24 298, 302; Re Rates on Salt, 24 I. I. C. C. 170, 172. 574 Procedure of the Interstate. [§ 246 months liigher rail rates may be justified,^' althougli the ex- planation seems unsatisfactory. Whether or not the paragraph puts the burden of justify- ing increases of rates that Avere lowered prior to the Amend- ment enacting it, effective June 18, 1910, is immaterial, as that burden exists to all rates advanced since January 1, 1910, by virtue of section 15/^ § 246. Railroad Owned Steamships. — A rail carrier may not own or control a water carrier in competition therewith,^* but .iurisdiction is conferred upon the Commission to "deter- mine questions of fact as to the competition or possibility of competition" upon application of a railroad company or other company praying for an order permitting the continu- ance of such ownership or control of vessels already in opera- tion or permitting the installation of new service. The Commission may on its own motion make such in- vestigation and enter an order thereon. There must be a hearing and the order of the Commission is made final. On such hearing if the Commission shall be of the opinion that any such existing service by water "other than through the Panama Canal is being operated in the interest of the public and is of advantage to the convenience and commerce of the people, and that such extension will neither exclude nor reduce competition," it may extend the time during which such carrier controlled water vessels may be so operated. The water carriers must in that event file tariffs of their rates, schedules and practices. Such applications must be made before July 1, 1914, but may be considered and disposed of thereafter.^^ § 247. Chalnges in Tariffs. — Changes in rates, fares and charges or joint rates, fares and charges, may not be made except after thirty days notice to the Commission and to the public, but the Commission is granted a discretion "for 12. American Insulated Wire & 14. Sec. 5 of Act; Sec. 203 ante; Cable Co. v. Chicago & N. W. Sec. 353, post. Ry. Co., 26 I. C. C. 415, 416. 15. Sec. 5 of Act; Sec. S55, post. 13. Re Pig Iron Rates from Vir- Sec. 203, ante. ginia, 27 I. C. C. 343, 345. § 248] Commerce Commission. 575 good cause shown" to allow changes on less notice, and may modify the requirements in respect to publishing, posting and filing tariffs. This may be done in particular instances or by general order.'^ Si)eaking of this provision the Commission said: "It is be- lieved that this authority should be exercised only in in- stances where special or peculiar circumstances or conditions fully justify it. Confusion and complication must follow^ in- discriminate exercise of this authority." Clerical or typo- graphical errors constitute good cause.^^ General orders permit the reduction of a through rate to the aggregate of the intermediate locals and the filing of tariffs by new roads in less than thirty days.^* § 248. Forms of Tariffs. — The power granted the Commis- sion to determine and prescribe the form of tariff schedules and to change that form when expedient has been exercised by prescribing rules in Tariff Circular No. 18-A and supple- ments thereto. § 249. ThroTig-h Routes. — After full hearing, on complaint, or upon its own initiative without complaint, the Commission may establish through routes and maximum joint rates be- tween rail and water lines. '^ Where a rail carrier enters into arrangements with any water carrier operating from a port of the United States through the Panama Canal or otherwise for the handling of through business between interior points in the United States and such foreign country, similar arrangements may be re- quired with any or all other lines of steamships operating, from the same port to the same foreign country."" Orders with reference to action authorized as herein stated shall be served and enforced as orders under section 15 of the Act"^ and may "be conditioned for the payment of any 16. Sec. 6 of Act; Sec. 360, post. 19. Sec. 377, post. 17. Tariff Circular 18a, Rule 20. Sec. 6 of Panama Canal Act, 58, also prescribing a form of ap- yar. (b) ; Sec. 377, post. plication to exercise the author- 21. Sec. 6 of Act, par. (d); Sec. ity. 379, post. 18. Tariff Circular 18a, Rules 56 and 57. 576 Procedure of the Interstate. ["§. 250 sum or the giving of security for the payment of any sum or the discharge of any obligation which may be required by the terms of" the order."" PoAver is also given the Commission, after hearing, with or without (^omplaint, to establish through routes an.d joint classifications and joint rates and the divisions thereof, when there is a failure of the carriers so to do. This does not ap- ply to connection between street electric passenger railways not engaged i'n the general business of transporting freight and railroads of a different character. In establishing such through route reference must be had to the entire line of a carrier." Subject to the limitation stated in the statute the Commis- sion has a discretion as to w'hen it will order through routes.^* The complainant asking for a through route should show him- self "capable financially and physically" of assuming the obligations such routes would impose. ^^ In fixing the divisions between the carriers the Commission must "take into consideration all the circumstances, con- ditions, and equities.""" § 250. Complaints for Damages. — In claims for damages a complaint must be filed with the Commission. This com- plaint frequently seeks to have a particular rate or practice declared illegal, and in the same complaint 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 finding that the rate or practice is illegal, and thereafter, by supplemental com- plaint, to seek damages." 22. Last par. Sec. 6; Sec. 380, C. C. 275; Enterprise Transpor- post. tation Co. v. Pennsylvania R. Co., 23. Sec. 15 of Act; Sec. 195, 12 I. C. C. 326. Baltimore & Caro- ante; Sec. 401, 2^ost. Una S. S. Co. v. A. C. L. R. Co., 24. Crane Iron Works v. United 49 I. C. C. 176. States, 209 Fed. 238, Com. Ct. 26. Star Grain & Lumber Co. Opinion No. 55, p. 453, 461, cited, v. Atchison, T. & S. F. Ry. Co., Truckers Transfer Co. v. Charles- 14 I. C. C. 364, 370. See also ton & W. C. R. Co., 27 I. C. C. section 196, ante. post. sec. 397. 275. 27. Dallas Freight Bureau v. 25. Truckers Transfer Co. v. Gulf, C. & S. F. Ry. 12 I. C. C. Charleston & W. C. R. Co., 27 I. 223, 228. § 251] Commerce Commission. 577 Many informal complaints for damages are filed and al- lowed. These are in eases where the carriers concede that an award should be made."* Informal complaints are suffi- cient to give the Commission jurisdiction."" The general principles applicable to the question are stated by the Com- mission to be the intent of Congress to provide a method of obtaining an award of damages without resort to the expen- sive and tedious processes of the law, and that the Act should be construed with that view."" The Commission prescribes rules to which it adheres. These rules are copied section 270, [yost. Where informal com- plaints are filed as provided in the Kules of Practice, and relief denied on tlie informal docket, a formal claim must be filed within six months of such denial, if the two years have expired, else the claim Avill be regarded as abandoned. § 251. Same Subject — Order of Commission. — Until the act complained of is found to be violative of the law no award of damages can be made. In the procedure btt"or(> tlie Com- mission evidence is heard as to the illegality of the rate, regulation or practice under investigation and as to the fact of damages. If, after the hearing, it is found that complain- ant or one in whose behalf the complaint is filed has suf- fered injury by a violation of the law and the fact of legal damage is established, the Commission directs how proof of the amount of damages shall be made, and when such amount is ascertained an order therefor is made. What must be shown to fix this amount is stated by the Commission as fol- lows : "The complainants will be expected to prepare statements showing as to eacli shipment upon which reparaiiov; is chiimed the date of movement, the point of origin, the point of destination, the route, the w^eight, the car number and ini- tials, the rate applied, the charges collected, and the amount of reparation claimed. These statements, with the freight 28. Conference Ruling 396, Feb. Delaware, L. & W. Ry. Co., 21 10, 1913. I. C. C. 45. 29. Marian Coal Co. v. Dela- 30. Michigan Hardwood Mnfrs. T/are, L. & W. Ry. Co., 27 I. C. Assn. v. Transcontinental Freight C. 441; Mountain Ice Co. v. Bureau, 27 I. C. C 32, S7. 578 Peocedure of the Inte.estate. [^ 252 bills covering the shipments, should be submitted to the de- fendants for verification by them. Upon the receipt of state- ments so prepared by the complainants and verified by the defendants, the Commission will take the matter up with a view to the issuance of an order of reparation. ' ' "" This rule has been elaborated and is now rule 5 of Rules of Practice section 272, post. In case damages are awarded the Commission mu.si: make a report and state the findings of fact on which the award is made,^" and on a trial in court to recover on such award the findings of fact set forth in such report shall be prima facie evidence of the matters therein stated.^* § 252. General Investigation. — In the exercise of its power to obrain ( omplete infoimation necessary t:o ena,I)!c it to perform the duties and carry out the objects for which it was created, the Commission makes investigations into the management of the business of the carriers subject to the provisions of the Commerce Acts. This authority extends to any matter or thing concerning which a complaint is author- ized to be made or about which any question may arise or which relates to the enforcement of any provisions of the Act.^^ No particular form of procedure is prescribed for these in- vestigations, but in a similar kind of investigation, that fix- ing accounting regulations, the Supreme Court stated as a material fact that the investigation proceeded "with due deliberation and after proper inquiry."''^ The Bills of Lad- ing and Industrial Railways cases are illustrative of investi- gations without formal complaint.'"' 31. Standard Mirror Co. v. Penn- 35. Kansas City S. Ry. Co. v. sylvania R. Co., 27 I. C C. 200, United States, 2:^1 U. S. 423, 58 209. L. Ed. 296, 34 Sup. Ct. 125. 32. Sec. 14 of Act; Sec. 394, post. 36. Re Bills of Lading, 14 I. C. 33. Sec. 16 of Act; Sec. 406, posf,- C. 346; Re Bills of Lading, 29 I. Lehigh Valley R. Co. v. Clark, C. C. 417; Industrial Railways 207 Fed. 717, 125 C. C. A. 235; Case, 29 I. C. C. 212; Second In- Mills V. Lehigh Valley R. Co., dustrial Railways Case, 34 I. C. 238 U. S. 473, 59 L. Ed. 1414, 35 C. 596, 55 I. C. C. 469, 56 I. C. U. Sup. Ct. 888. 272, 52 L C. C. 671. 34. ante, Sees. 219, 220. § 253] CoMMEECE Commission. 579' Investigations relating to consolidation of railroads, to ex- tensions and abandonment of facilities and to determine groups on the aggregate value of the roads in which fair re- turn shall be based, are among the things which may be in- vestigated under Transportation Act 1920. § 253. Procedure in Formal Cases — Complaint. -The rules relating to formal complaints and the form thereof are stated in subsequent sections of this chapter." By conference rul- ing the Commission has provided that complaints involving the same or substantially the same principle, subject or state of facts should be included in one complaint ; that where the principle involved or the state of facts is substantially the same, two or more complainants may join against two or more carriers in one complaint, and where in such cases two or more complaints have been filed they may be consolidated and heard together.''* Amendments are freely allowed, even to the extent of claiming reparation when there is no claim therefor in the original complaint.^" While the Commission's practice is in no degree technical, issues not clearly raised in the pleadings cannot be deter- mined by it. The Commission has said: "A party litigant must by his pleading fairly advise his adversary ofi the contention which the latter will be expected to meet at the hearing, in order that we may be adequately informed on the resulting record of the facts material to our determination of the con- troversy. This principle of notice and a fair opportunity for defendant to know what charges he must meet is substantially conformed to when the course of the hearing unobjected to shows definitely what complainant seeks. ^" Good faith both on the part of the complainants and defendants demands that the formal pleadings shall be sufficiently full to disclose the claim 37. Sees. 268, et seq. Chicago, M. & St. P. Ry. Co., 38. Conference Ruling 206. 21 I. C. C. 490; Board of Trade 39. Virginia-Carolina Chemical of Chicago v. Atchison, T. & S. Co. V. St. Louis, I. M. & S. R. F. Ry. Co., 29 I. C. C. 438, 444. Co., 18 I. C. C. 1; Virginia-Car- Burson Knitting Co. v. C. M. & olina Chemidal Co. v. Chix;ago. G. R. Co., 42 I. C. C. 739, 742; R. I. & P. Ry. Co., 18 I. C. C. 3. Live Poultry & Dairy Shippers 40. Commercial Club of Omaha Traffic Asso. v. A. T. & S. F. Ry. V. Chicago, R. I. & P. Ry. Co., Co., 49 I. C. C. 228, 230. 6 I. C. C. 647; Sinclair & Co. v. 580 Peocedure of the Interstate. [§ 254 or the answer thereto. For a defendant in its answer to say that it neither admits nor denies an allegation the truth or falsity of which could be determined from its records, is not to deal frankly with Commission or complainant, and the complaint should be sufficiently definite to inform the defendant what rate, rule or practice is complained against, and upon what is based the claim of illegality. § 254. Notice before Hearing. — To constitute that full hear- ing required hy the statute notice must be given to the carrier directly affected. Where a complaint is filed a statement thereof must be forwarded to the carrier complained against, "who shall be called upon to satisfy the complaint, or to answer the same writing." In hearings without formal complaint where an order against or affecting a particular carrier or carriers, as in sus- pension and similar cases, is contemplated, notice must be given. Most rate situations have their influence on other rates and, having this fact in mind, objection was made to an order of the Commission because all carriers thus affected were not served with notice. Replying to the contention, the court said: "It is obvious that the purpose was to require that notice should be given to the party immediately interested, and not to those remotely concerned. It is a novel and unreason- able proposition that, when rates in a given locality are drawn in controversy, notice must be given to every carrier who may be in the succession of all or any interstate trans- portation which includes that in question. The procedure prescribed is analogous to that in all legal controversies, and must be deemed sufficient. The objections must be over- ruled. "If such an order as is here contested were to be held to be beyond the power of the commission, and that precedent were to be followed, its functions would be frittered away, piecemeal, and the result must be that the power to regulate rates through the means provided by the statute would be 41. Sec. 13 of Act; Sec. 392, post; Fels & Co. v. Pennsylvania R. Co., 23 I. C. C. 483, 486. § 254] Commerce Commissioi^. 581 so absurdly inadequate as to furnish no reason for its exis- tence." " ' Speaking of the same question the Commission said: "The fact that all of the carriers operating in the Mesaba district and all of the carriers and parties interested in the ore rates are not made parties to this proceeding is immaterial in its bearing upon the legality of this complaint. A com- plainant can not l)e expected to search public and private records with the view of discovering all parties that may be interested in a certain proceeding. Full publicity attends every step of all proceedings before the Commission, and it must be assumed that parties interested will take notice of what is going on. Other parties interested may intervene in the present proceeding if they so desire." The quoted rule must be read in connection with vrhat the Commission said in the Stevens Grocery Co. case. There it was said: "At the hearing defendant objected to the sufficiency of the complaint because the carriers parties to the movement east of Memphis were not named as defend- ants. Numerous cases were referred to by parties as sup- porting their contentions that it is, or is not proper and necessary to bring in issue the through rate or charge and to namie the carriers part/ies thereto, before attacking a factor of such through rate or charge. In the past the pro- cedure in this respect has been varied somewhat, dependent upon the circumstances of the cases. It is important that the true rule be definitely announced and that a uniform policy be established under which parties complainant and defendant may understand what is rec|uired. We now lay down tile rule, which for the future will be strictly adhered to, that when a complaint involves charges applicable to a through shipment tlie through rate or charge must be brought in issue and the participating carriers must be made defend- ants. When the through rate or charge is made up of sepa- 42. Louisville & N. R. Co. v. Int. Opinion Com. Ct. No. 4, p. 235, Com. Com., 184 Fed. 118, 127, 128. 375; Int. Com. Com. v. Louisville For further history of the case & N. R. Co., 227 U. S. 88, 57 L. see, Louisville & N. R. Co. v. Ed. 431, 33 Sup. Ct. 185. Int. Com. Com., 195 Fed. 541, 582 Procedure op the Interstate. [§ 254 rately established rates or charges, applicable to the through business, the through rate or charge must be attacked as violative of the Act, although the violation may be believed to be occasioned by a particular factor, or factors thereof; in such case the complaint should be prepared at the hearing to prove the unlawfulness of the through rate itself and that this is due to a particular factor or factors. The sound rule on this point was followed in Comm,ercial Club of Omaha v. A. S. R. Ry. Co., 27, I. C. C. 302; Scott-Mayer Commission Co. V. C. R. I. & P. Ry. Co., 28 I. C. C. 529 ; and Poehlman Bros. Co. V. C, M. & St. P. Ry. Co., 30 I. C. C. 89. That rule will be followed consistently hereafter." Later in referring to this case the Commission said: "The Rule is stated in the Stevens Grocer Co. ease more broadly than it should be. In determining whether or not a com- plainant has bieen damaged by the exaction of unreasonable or unduly preferential reshipping rates the total through charges paid from point of origin must be considered. But this does not hold true of a determi/nation of the reason- ableness or justness of the reshipping rate itself. Reship- ping rates are not merely divisions of through rates, but are separately established rates generally published by carriers other than those engaged in the inbound movement and without the concurrence of the latter; and the point of reshipment is a rate-breaking point. A change in the reshipping rates, even though it may aflfect the through charges, will have no eflPect upon the inbound rates. The inbound carriers have a right to secure reasonable compensation for their part of the haul by reasonable inbound rates. The reasonableness of such inbound rates is in no manner contingent upon re- sliifli:ions above cannot, when taken from their setting, be harmonized. The Commission does not apply the rule stare decisis and consid- ering what was done in the several cases rather than what was said, it may be stated that when a carrier seeks to justify increases in its rates and the claim is made or the fact appears that there exist lower intrastate rates on the same commodity in the same general territory, the safe course is to make full proof showing the reasons for the existence of the lower rates and explaining why they have not been increased. In all cases where this relationship of interstate rates higher than intrastate rates exists, the pro- testing shippers should present the fact supported by such proof as is available. Wlien the proof is made, the Com- mission upoai a consideration of "all the facts and circum- stances," will exercise its "flexible limit of judgment," permitting or denying the increases, as may seem just and proper in each case. A definite and uniform rule like that 6S. Class Rules between Stations 65. Western Rate Advance Case in Louisiana, 33 I. C. C. 302. 1915, 35 I. C. C. 497. For the 64. Live Stock Rates from Colo- discussion in the dissenting opin- rado, 35 I. C. C. 682, dissenting ion, see pp. 654, et seq. opinion, pp. 689-691. 592 Procedure of the Interstate. [§ 2G0 stated in tlie Live Poultry case, supra, is advisable and in Danville, Ya., Class and Commodity Rates, 38 I. C. C. 742. was stated by Mr. Commissioner Harlan. This correct rule seems to have bben accepted and former cases applying a contrary rule ignored in a second Live Poultry Case, 49 L C. C. 228, 237 the con-ect rule is stated and the Commission said: "This ruling we have since followed." § 260. The Weak and the Strong Roads. — Rates between the same points nnist. as a ])ract.ical matter, be the same over all lines connecting the points, otherwise the line maintain- ing the lowest rates would receive all the business. When rates in a general and related ten-itory are mcreased the increases must^ to be of any benefit to the carriers, apply to all carriers serving the territory. It not infrequently occurs that in the general territory there are carriers whose need for additional revenue is indubitable; other carriers may be earning a fair return on their investments while as to others the need for additional revenue is uncertain. To consider the weak roads or the strong roads only would manifestly be unfair either to the public or to the investor in railroad property. Lender such circumstances it has been the rule of the Commission to measure the need for ad- ditional revenue by the condition of a road which is fairly represemtative of the general situation. This is manifestly proper, as each road, the weak and the strong, is necessary to the public service and to destroy the weak road because there may be a road in the same territory which needs less revenue, benefits a few but injures the many. Perhaps it might be proper that there should be regulation limiting the construct- ion of a road where the territory is already sufficiently serv- ed by existing transportation facilities; but so long as the law permits the construction of roads and denies the right to pool freights, justice will permit the needs of the roads so con- structed to be considered in prescribing rates for a related section. In the general rate advance cases heretofore heard by the Commission, these principles have been announced, and in the Western Advance Rate case of 1915, 35 I. C. C. 497, 560 561, the authorities are collated. In Transportation Act 1920 Congress recognized the prin- § 2G1] Commerce Commission. 593 eiples stated in this section in section 15-a relating to "fair return" on "aggregate value." § 261. Other Orders. — The procedure in prescribing through routes and joint rates may be on complaint or without com- plaint,'" and so with the procedure to determine the lUftxi- mum to be paid a shipper for services rendered or facilities furnished in connection with transportation."^ In each case there must be a hearing. § 262. Service of Orders of the Commission — Every order of the Commission shall be f()rtln\'ith served upon the desig- nated agent of the carrier.*"* Every carrier must designate in writing an agent in the city of Washington, District of Columbia, upon whom service of all notices and processes may be made and file such designa- tion with the Secretary of the Commission, and, in default of such designation, service of aaiy notice or other process in any proceeding before the Commission may be made by post- ing such notice or process in the office of the Secretary of the Commission."^ The Commission has an official seal, which the law pre- scribes shall be judicially noticed.^" § 263. Rehearing by the Commission. — The Commission has authority to suspend or modify its orders upon notice, the manner of acting and the kind of notice being left to its discretion. Section 16-a gives the Commission power to grant rehearings under such general rules as it may prescrib/e, but unless specially permitted otherwise, the order must be obeyed peaiding such rehearing. This section was added by the amendment of June 29, 1906, but the power has been exercised by the Commission since its organization. In re Petition of Produce Exchange,"' a rehearing was denied the petitioner, who was not a party on the original hearing. In Myers v. Penn. Co.'" the rehearing was denied, 66. Sec. 15 of Act; Sec. 400, j^ost. 70. Sec. 17 of Act; Sec. 417, post. 67. Sec. 15 of Act; Sec. 404, post. 71. Re Petition of Produce Ex- 68. Sec. 16 of Act; Sec. 410, post. change, 2 I. C. C. 588, 2 I. C. 69. Sec 6, par. 2 of Act June 18. R. 412. 1910; Sec 450, post. 72. Myers v. Pennsylvania R. 594 Peocedure of the Intebstate. [§ 264- the petition not showing that any material testimony had been overlooked or misapprehended 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 i''" "(a) The Commission will promptly and carefully examine an api:)lication for a rehearing with a view to the immediate correction of any error of laAv or fact found to exist, but will not direct a rehearing involving the expense to parties of appearing before the Commission for a reargument, unless satisfied that such reargument might have the effect of chang- ing the result of what the Commission has already done. "(b) The statute is construed as dealing with the sub- stance of things, and as contemplating, as far as that is pos- sible, methods of procedure that are speedy and which come at once to the very right of questions arising in the trans- portation 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, the Commission held that a case closed prior to the effective date of the Amendment of June 29, 1906, could not be reopened to enter an order au- thorized by the amended law.'* § 264. Valuation of Property. — The power given the Com- mission by Act March 1, 1913, to classify, inventory and value the property of carriers subgect to the Act has been stated.^^ The statute gives the Commission power to pre- scribe the method of procedure to be followed in the conduct of the investigation, the form in which the results shall be submitted, and the classification of the elements that con- stitute the ascertained value. § 265. Ora^l Argument. — By rule 1-4 of the rules of practice it is provided: "Oral argument will be had only as ordered by the Commission." Co., 2 I. C. C. 573, 2 I. C. R. 74. Cattle Raisers' Assn. v. Chi- 403, 544. cago, B. & Q. R. Co., 12 I. C. C. 6. 73. Riddle, Dean & Co. v. Pitts- 75. Sees. 231-233, supra. Kansas burg & L. E. R. Co., 1 I. C. C. City Sou. Ry. Co. v. United States, 490, I. I. C. R. 773. 251 U. S. , 64 L. Ed. , 40 Sup. Ct. . § 266] Commerce Commission. 595 In speaking of oral argument tlie Commission said : "The act provides for the taking of testimony in these in- vestigations by a single commissioner or by an examiner. It is probable that the Commission might, in its discretion, re- quire the submission of a case upon the testimony so taken and written briefs. However this may be, we have never, in fact, yet refused; and should only nefuse under peculiar and unusual circumstances, the application of a party to be heard orally. As above observed, testimony in these investi- gations is often taken without the presence of any member of the Commission. It almost never happens that a majority of the Commission hear the testimony. The only opportunity which a party has of stating his views to this body by word of mouth is upon tlie argument. The importance of these arguments is recognized, and they will ordinarily b'e allowed as a matter of course. Application for such argument should, however, be made when the testimony is concluded and not deferred as in this case, although here, even, as soon as we learned that the parties desired to present their views orally the proceeding was reopened and set down for argument."''" § 266. Estoppel by Former Order of the Commission. — While the technical plea of res adjud\icata does not apply to proceedings before the Commission, and the rule of stare decisis has been held inapplicable to its reports, that body must, of necessity, when it reaches a conclusion on a par- ticular state of facts adhere to that conclusion unless and until the conditions upon which the conclusion was based have changed or unless the Commission acted in th|e first instance upon a misconception of fact or a mistake of law." Where, however, the Commission prior to the Hepburn Act, effective August 28, 1906, had declared a rate unrnirnerce Act, and in these rules referred to as the Act, by any com- mon carrier subject to the Act are thosle designated in sec- tion 13 of the Act, and are styled complainants. The com- mon carriers so complained of, and their receivers or operat- ing trustees, if any, are styled defendants. Two or more complainants may join in one complaint if their respective causes of action are against the same defendant or defend- ants and involve substantially the saniie violation of the Act and a like state of facts. (c) If complaint is made in respect of through transporta- tion l:»y continuous carriage or shipment all carriers subject to the Act participating therein should be made defendants. (d) If complaint is made of rates, fares, charg'es, regula- tions or practices of more than one carrier all carriers against which an order is sought should be made defendants. (e) If complaint is made of a classification or any pro- vision thereof it will ordinarily suffice to make defendants th,e carriers operating one or more through routes between repre- sentative points of origin and destination. (f) The receiver or operating trustee of the line of a defendant must also be made defendant. (g) In investigation proceedings the carriers designated therein are styled respondents. (h) In invlestigation and suspension proceedings the ap- plicants upon whose protests the proceeding was instituted are styled protestants. (i) In applications for relief from any provision of the Act the carriers by or on whose behalf the application is made are styled applicants. (j) Others seeking relief are styled petitioners. 598 Proceduee of the Inteestate. [^ 269 A § 269 A, Interventions. I'k) Petitioners permitted to intervene as hereinafter pro- vided are styled interveners. (1) Any one entitlied under the Act to complain to the Commission may petition for leave to intervene in any pend- ing proceeding prior to or at the time it is called for hear- ing, but not after except for good cause shown. The peti- tion shall set forth the grounds of the proposed intervention ; the position and interest of the petitioner in the proceeding ; and, if affirmative relief is sought, should conform to the re- quirements for a formal complaint. Leave will not be granted except on allegations reasonably pertinent to the issues al- ready preslented and which do not unduly broaden them. If leave is granted, the intervener thereby becomes a party to the proceeding. When the pietition is filed prior to the bearing the petitioner must furnish therewith a .sufficient number of copies for service upon all parties to the proceed- ing and three additional copies for the use of the Com- mission. When not so filed prior to but tendered at the hearing sufficient copies must be provided for distribution as motion papers to the parties represented at the hearing. If leave be granted at the hearing sufficient copies must also be furnished for service and 3 additional copies for the use of the Commission. It is desirable, especially Avhere af- firmative relief is sought, that the pietition be filed in season to permit of service on the defendants and afford them an opportunity to answer before the hearing, thereby making it possible in some instances to grant leave which otherwise it may be necessary to deny in fairness to the parties to the proceeding. Kule 2. § 270. Compilaints. (a) Complaints may be either informal or formal. (b) Informal complaints may be made by letter or other writing and as received are filed. Matters thus presented are, if their nature warrants it, taken up by correspondence with the carriers affected in an endeavor to bring about ad- justment or satisfaction of the complaint without formal hearing, and are given serial members on the informal doc- § 270] CoMMEKCE Commission. 599 ket. This informal procedure has been found efficacious in the great majority of cases and is recommended. (c) No form of informal complaint is prlescribed, but in substance the letter or other writing must contain the es- sential elements of a complaint, including name and ad- dress of the complainant, a statement that the Act has been violated by the carrier or carriers named, indicating when, where and how, and a request for affirmative relief. It is desirable that the informal complaint be accompanied by copies in sufficient number to enable the Commission to transmit one to (each carrier named, and it may be ac- companied by supporting papers. Proceedings thus instituted on the informal docket are without prejudice to complain- ant's right to file and prosecute formal complaint, where- upon the proceedings on the informal docket will ble dis- continued. (d) Sec. ]6 of the Act, as amended bry sec. 424 of the Transportation Act, 1920, provides that all complaints for the recovery of damages shall be filed with the Commission within two years from th/e time the cause of action accrues, and not after, unless the carrier, after the expiration of such two years or within ninety days before such expira- tion, begins an action for recovery of charges in respect of the same siervice, in which case such period of two years shall be extended to and including ninety days from the time such action by the carrier is begun. In either case the cause of action in iiesjiect of a shipment of property shall, for the purposes of said Sec. 16, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after. Sec. 206, subdivision (f), of the Transportation Act, 1920, provides that the» period of Federal control shall not be computed as a part of the period of limitation in claims for reparation to the Commission for causes of action arising prior to Federal control. The period of time within which com- plaints for recovery of damages shall be filed with the Com- mission under these statutory provisions, and those cited in Appendix 1, will be referred to in these Rules as the statu- tory period. (e) A complaint for the recovery of damages may be in- formal bfut must be filed within the statutory period, and, C)00 Procedure of the Interstate. [§ 27Q if informal, sliculd contain, in addition to the matters above indicated, such data as will serve to identify with reason- able definiteness the shipments or other transportation serv- ices in respect of which nacovery is sought, the carriers par- ticipating, the kind and amount of injury sustained when and by whom, and, if any recovery is sought on behalf of others than complainant, a statement of the capacity or authority in or by which complaint is made in their behalf. Notification to the Commission that a complaint may or will be filed later for the necovery of damages is not a filing of complaint within the meaning of the statute. Illustrative of pertinent data are, in case of shipments, their dates, origins, destinations, consignors and consignees, dates of delivery or tender of delivery, car numbers and initials if in carloads, routes of movement, if known, commodities transported, weight, charges assessed, at what rate, when and by whom paid and by whom borne. (f) Carriers willing to pay damages for vio-lations of the Act should make application in the form prescribed by the Commission for authority to pay. Such applications will be filed in the special docket under serial number, and, if granted, orders to that eft'ect will be entered on the special docket. Such application, when not made upon informal com- plaint filed with the Commission, must be filed within the statutory period and will be deemed the equivalent of an informal complaint and an a^ifiwer thereto admitting the matters stated in the application. If a carrier is unable tc file such application Avithin the statutory period and tin claim is not already protected from the operation of the statute by informal complaint, a statement setting forth the facts may be filed by the carrier within tte statutory perioid. Such statement will be deemed the equivalent of an informal complaint fil^d on behalf of the shipper and sufficient to stay the operation of the statute. (g) If it develops that the complaint for recovery of damages cannot be disposed of informally, the complainant and the car- riprs affected will be so notified in writing by the Commission. In such case formal complaint must be filed with the CommissioL wnthin 6 months after the date on which such notification is mail- ed to complainant, and, if so filed, will be deemed to relate back <§! 270] Commerce Commission. 601 to the date of filing the informal complaint. If formal com- plaint is not so filed within 6 months after the date of mail- ing such notification the complainant will be deemed to have abandoned the complaint and no formal complaint for re- covery of damages based on the same cause of action will thereafter be placed on file or considered unless itself within the statutory period. (h) Formal complaints must conform to the requirements of rule XXI. The names of all parties complainant and defendant must be stated in full without abbreviation, and the address of each complainant, with the name and address of his attorney, if any, must appear. Each formal complaint must be accompanied by copies in sufficient number to enable the Commission to serve one upon each party defendant and retain three for its own use. The Commission will serve the complaint upon each defendant by leaving a copy with its designated agent in Washington, D. C, or, if no such agent has been designated, biy posting a copy in the office of the Secretary of the Commission. (i) Complaints should be so drawn as fully and completely to advise the parties defendant and the Commission wherein the provisions of the Act have been, are, (or) (and) will be violated, by a continuance of the acts or omissions complained of, and should set forth briefly and in plain language the facts claimed to constitute such violation and the relief sought. Two or more grounds of complaint involving the same principle, subject, or state of facts, may be included in one complaint, but should be separately stated and num- bered. The several rates, fares, charges, classifications, regu- lations, or practices complained of should be set out by specific reference to the tariffs in which they appear when- ever that is practicable. (j) In case violation of two or more sections of the Act is alleged the facts claimed to constitute violation of one section should be stated separately from those in respect of any other section or sections, wherever that can be done by reference or otherwise without undue repetition. (k) In case violation of section 1 of the Act is alleged, the complaint should show whether the rates, fares or charges assailed have been increased since January 1, 1910. CO'2 Procedure of the Interstate. [§ 270 (1) In case unjust discrimination in violation of section 2 is alleged the special rate, rebate, drawback or othei* device and the manner in which thereby the greater or less com- pensation complained of has been charged, collected or re- ceived should be specified. (m) In case undue or unreasonable preference or advan- tage, or undue or unreasonablle prejudice or disadvantage, in violation of section 3 alleged, the particular person, company, firm, corporation, locality or description of traffic affected thereby, and the particular preference or advantage, or prejudice or disadvantage, relied upon as constituting such violation, should be clearly specified. (n) If the complaint brings in issue any rate, fare, charge, classification, regulation or practice, made or imposed by authority of any State, or initiated by the President duritig the period of Federal control, as causing any undue or un- reasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against inter- state or foreign commerce, which is forbidden and declared unlawful under Sec. 13 of the Act, as amended by Sec. 416 of the Transportation Act, 1920 the complaint should also contain appropriate allegations to present for decision the issue of the justness and reasonableness under section 1 of the rates, fares, charges, classifications, regulations or prac- tices complained of in so far as applicable to interstate or foreigTi commerce, and the issue as to what should be the rate, fare or charge, or the maximum or minimum, or maxi- mum and minimum, thereafter to be charged, and the classi- fication, regulation or practice thereafter to b)e observed in order to remove such advantage, preference, prejudice or dis- crimination. The facts should be stated with sufficient de- finiteness to disclose fully the contention made in respect of any tariff provision prescribed, established or compelled by State authority jor by the President. The Commission, be- fore proceeding to hear and dispose of such issue, must cause the State or States interested to be notified of the pro- ceeding and must be furnished with copies of the complaint in sufficient number for that purpose. ^ 270] Commerce CoMMissioisr. 603 (o) In ease violation of section 4 of the Act is alleged the facts as to compensation charged or received, the respects in which the section was therebfy violated, and the tariff pro- visions applicable, should be stated with particularity. (p) In case recovery of damages is sought the complaint should contain appropriate allegations showing, in addition to the matters indicated above, such data as will serve to identify with reasonable detiniteness the shipments or other transportation services in respect of which recovery is sought, and stating (a) that complainant makes claim for reparation, (b) the name of each individual claimant asking reparation, (c) the names of defendants against which claim is made, (d) the commodities transported, the rate applied, the date when the transportation charges were paid, by whom paid, and by whom borne, (e) the period of time within which or the specific dates upon which the shipments were made, and the dates when they were delivered or tendered for delivery, (f) the points of origin and destination, either specifically, or, where they are numerous, by definite indication of a defined territorial or rate group of the points of origin and des- tination, and, if known, the routes of movement, (g) the nature and amount of the injury sustained by each claimant, and (h) if any reparation is sought on behalf of others than the com- plainant, in what capacity or by what authority complaint is made in their behalf. (q) The Commission will consider as in substantial com- pliance with the statute of limitations a complaint in which the complainant alleges that the matters complained of, if continued in the future, will constitute violations of the Act in the particulars and to the extent indicated, and prays reparation to the Commission for causes of action arising prior which may move during the pendency of the proceeding and on which the transportation charges shall be paid and borne by the complainant. (r) If a general rate adjustment is challenged in the com- plaint, or many shipments or points of origin and destina- tion are involved, it is the practice of the Commission to find and determine in its report the issues as to violation of the Act, injury therebjy to complainant, and right to reparation, and thereafter to afford the parties opportunity to agree or 004 Procedure of the Interstate. [§ 271 make proof respecting the shipments and amount of repara- tion due under its finding before entering its order awarding reparation. See Rule V. In such eases freight bills and other exhibits bearing on the details of shipments, and the amount of reparation on each, need not be produced at the hearing unless called for or needed to develop other pertinent facts, (s) Except under unusual circumstances, and for good cause shown, reparation will not be awarded upon a com- plaint in which it is not specifically prayed for, or upon a new complaint by or for the same complainant which is based upon any finding in the original proceeding. (t) Supplemental complaints may be tendered for filing by the parties complainant against the parties defendant in the original complaint, setting forth any causes of action under the Act alleged to have accrued in favor of the com- plainants and against the defendants since the filing of the original complaint, and, upon leave granted, will be filed and served by the Commission as provided in cases of original complaints, and heard, considered and disposed of therewith in the same proceeding, if practicable. (u) If recovery of damages is sought by supplemental complaint it must be filed with the Commission within the statutory period. (v) Cross complaints. See Rule IV. Rule 3. § 271. Answers. (a) Answers must conform to the requirements of Rule XXI. (b) Answers to formal complaints must be filed with the Commission within 20 days after the day on which the com- plaint was served. For defendants having general offices at or west of El Paso, Tex., Salt Lake City, Utah, or Spokane, "Wash., said period of 20 days is extended to 30 days. The periods so fixed may be shortened or extended by the Com- mission Avhen it deems advisable. The answer must in the same period be served as provided in Rule VI. Any defend- ant failing to file and serve answer within said period will be deemed in default and issue as to such defendant will be thereby joined. (c) Answers to petitions in intervention or amended complaints filed and served upon leave granted need not be § 271] Commerce Commission. 605 separately made unless the defendants so elect, and their answers to the formal complaint will be deemed answers to the petition in intervention. AnsAvers if separately made should be tiled and served as promptly as possible, and within the same period after service of petition in intervention as is above provided for answers after service of complaints. Answers to cross-complaints filed and served upon leave granted must be tiled and served within the same period after service of the cross-complaint. (d) x\ll answers should be so drawn as fully and completely to advise the parties and the Commission of the nature of the defense, and should admit or deny specifically and in detail each material allegation of the pleading answered. (e) An answer denying that an alleged discrimination is unjust under section 2 of the Act, or that an alleged prefer- ence or prejudice is undue or unreasonable under section 3 of the Act, should state fully the grounds relied upon in making such denial. (f) Whenever it is apparent from the pleading answered, either by direct allegation or otherwise, that a departure from the requirements of the fourth section of the Act, is involved, the answer should set forth by number the par- ticular application or order, if any, which protects such de- parture. (g) It is desired that every effort be made to narrow tlie issues upon hearing. Matters alleged as affirmative defenses should be separately stated and numbered. Counterclaims and set-offs against shippers are not within the jurisdiction of the Commission. (h) Cross-complaints alleging violations of 1he Act by car- riers complainant or seeking relief against them thereunder may be tendered for filing by defendants with their answers, and, upon leave granted, Avill be filed and served by the Commission in the manner provided in Rule III for com- plaints. In such cases the cross-complaint will be heard, considered and disposed of in connection with the issues raised by the complaint in the same proceeding. (i^ If a defendant satisfies a formal complaint, either be- fore or after answering, a statement to that effect signed by 606 Peoceduee op the Inteestate. [§ 272 both complainant and defendant must be filed setting forth when and how the complaint has been satisfied. Rule 4. § 272. Reparation Statements — Formal Claims For Repara- tion Based Upon Finding's of the Commission. (a) When the Commission finds that reparation is due, but that the amount cannot be ascertained upon the record before it, the complainant should immediately prepare a, statement showing details of the shipments on which repara- tion is claimed in accordance with Form 5. (See page 38). The statement should not include any shipment not covered by the Commission's findings, or any shipment on which complaint was not filed with the Comjnission within the statutory period. See Rule III. The statement, together with the paid freight bills on the shipments, or true copies thereof, should then be forwarded to the carrier which collected the charges for checking and certification as to its accuracy. The certificate must be signed in ink by a general accounting officer of the carrier and should cover all of the information shown in the statement. If the carrier which collected the charges is not a defendant in the case its certificate must be concurred in by likci signature on biehalf of a carrier defend- ant. (b) If the shipments moved over more than one route a separate statement should be prepared for each route, and separately numbered, except that shipments as to which the collecting carrier is in each instance the same may be listed in a single statement if grouped according to routes. (c) Statements so prepared and certified shall be filed with the Commission, whereupon it will consider entry of an order for reparation. The filing of statements will not stop the running of the statute of limitations as to shipments not covered by complaint or supplemental complaint. See Rule III. (d) All discrepancies, duplications, or other errors in the statements should be adjusted by the parties and correct agreed statements submitted to the Commission. Rule 5. § 273. Service of Papers. (a) Formal complaints and, upon leave granted, petitions in intervention, supplemental complaints, cross- complaints, <§ 274] CoMMEECE Commission. 607 and amended complaints, will be served by the Commission, and copies of each must be furnished in sufficient number, as provided in Rule III in respect of complaints. (b) Answers, petitions, motions, applications, notices and all other papers, except depositions, in proceedings pending before the Commission upon its formal docket, must, when filed or tendered for filing by the Commission show service thereof upon all parties to the proceeding. Such service shall be made by delivering in person or % mailing, properly addressed with postage prepaid, one copy to each party. (c) When any party has appeared by attorney service upon such attorney will be deemed service upon the party. Rule 6. § 274. Amendments to Pleadings. — Amendments to any pleading will be allowed or refused by the Commission at its discretion. Rule 7. § 275. Continuances. — Continuances and extensions of time will be granted or denied by the Commission at its discretion. Rule 8. § 276. Stipulations Desirable and Must be in Writing:. — The parties may, by stipulation in writing filed with the Commission, or presented at the hearing, agree upon any facts involved in the proceeding. It is desired that the facts be thus agreed^ upon in so far as and whenever practic- able. Rule 9. § 277. Hearings. (a) When issue is joined upon formal complaint by service of answer, or by failure of defendant to answer, the Com- mission will assign a time and place for hearing. Witnesses will be examined orally before the Commission, a commis- sioner, or one of its examiners, unless their testimony is taken by deposition or the facts are agi'eed upon as provided for in these rules. (bl) At hearings on formal complaint the complainant shall open and close. At hearings upon applications for relief from any provision of the Act the applicant shall open and close. At hearings of investigation and suspension proceed- ings the respondent shall open and close. At hearings of all other investigations on the motion of the Commission, the 608 Procedure of the Interstate. [^ 278 Cnmiiiissioii shall open and close, except as the Commission may prescril)e a different order or the presiding commissioner or examiner may otherwise direct. In hearings of several proceedings upon a consolidated record the presiding com- missioner or examiner shall designate who shall open and close. Interveners shall follow the party in whose behalf the intervention is made, and in all cases where the interven- tion is not in support of either original party the presiding commissioner or examiner shall designate at what stage such interveners shall be heard. Rule 10. § 278. Depositions, How Taken. (a) The depositioii of a witness for use in a proceeding pending before the Commission may, after issue joined, be taken in compliance with the following rules of procedure, prescribed under section 17 of the Act, but not otherwise. (b) Such despositions may be taken before a special agent or examiner of the Commission, or any judge or commissioner of any court of the United States, or any clerk of a dis- trict court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court or court of common pleas of any of the United States, or any notary public not being of counsel or attorney to either of the parties nor interested in the event of the proceeding or investigation, according to such designa- tion as the Commission may make in any order made by it in the premises, except that where such deposition is taken in a fcn-eign country it may be taken before an officer or person designated by the Commission or agreed upon by the parties by stipulation in writing to be tiled with the Com- mission. Any party desiring to take the deposition of a witness in such a proceeding shall notify the Commission to that effect, and in such notice shall state the time Avhen, the place where, and the name and post-office address of the party before whom it is desired that the deposition be taken, the name and y)ost-office address of the witness and the subject matter or matters concerning which the witness is expected to testify, whereupon the Commission will make and serve upon the parties or their attorneys an order wherein the Commission § 278] Commerce Commission. 609 shall name the witness whose deposition is to be takern, and specify the time when, the place where, and the party before whom the witness is to testify, but such time and place, and the party before whom the deposition is to be taken, so specified in the Commission's order, may or may not be the same as those named iu said notice to the Commission. (c) Every person whose deposition is so taken shall be cautioned and sworn (or affirmed, if he so request) to testify the whole truth and nothing but the truth concerning the matter about which he shall testify, and shall be carefully examined. His testimony shall be reduced to typewriting by the officer before whom the deposition is taken, or under his direction, after which the deposition shall be subscribed by the witness and certified in usual form by the officer. After the deposition has been so subscribed and certified it shall, together with two copies thereof made by such officer or under his direction, be forwarded by such officer under seal in an envelope addressed to the Commission at its office in Washington, D. C. Upon receipt of the deposition and copies the Commission Mall file in the record in said proceed- ing such deposition and forward one copy to the complain- ant or his attorney and the other copy to the defendant or its attorney, except that where there are more than one com- plainant or defendant the copies will be forwarded by the Commission to the parties designated by such complainants or defendants as the case may be. (d) Such depositions must conform to the specifications of Rule XXI. (e) No deposition shall be taken except after 6 days' notice to the parties, and where the deposition is taken, in a foreign country such notice shall be at least 15 days. (f) No such deposition shall be taken either before the proceeding is at issue, or, unless under special circumstances and for good cause shown, within 10 days prior to the date of the hearing thereof assigned by the Commission, and wliere the deposition is taken in a foreign country it shall not be taken after 30 days prior to such date of hearing. (g) Witnesses whose depositions are taken pursuant to these rules and the magistrate or other officer taking the same, unless he be a special agent or examiner of the Com- 610 Procedure of the Interstate. [§ 279 mission, shall severally be entitled to the same fees as are paid for like service in the courts of the United States, which fees shall be paid by the party or parties at whose instance the depositions are taken. Eule 11. § 279. Witnesses and Subpoenas, (a) Subpoenas requiring the attendance of witnesses from any place in the United States at any designated place of hearing may be issued by any member of the Commission. (b) Subpoenas for the production of books, papers, or documents, unless directed by the Commission upon its own motion, will issue only upon application in writing. Appli- cations to compel witnesses who are not parties to the pro- ceedings, or agents of such parties, to produce documentary evidence must be verified and must specify, as nearly as may be, the books, papers, or documents desired and the facts to be proved by them. Applications to compel a party to the proceeding to produce books, papers, or documents should set forth the books, papers, or documents sought, with a showing that they will be of service in the determination of the proceeding. (c) Witnesses who are summoned are entitled to the same fees as are paid for like service in the courts of the United States, such fees to be paid by the party at whose instance the testimony is taken. Rule 12. § 280. Documentary Evidence. (a) Where relevant and material matter offered in evidence by any party is embraced in a book, paper or document con- taining other matter, not material or relevant, the party must plainly designate the matter so offered. If the other matter is in such volume as would unnecessarily cumber the record, such book, paper or document will not be received in evidence but may be marked for identification and, if properly authen- ticated, the relevant and material matter may be read into the record, or, if the presiding commissioner or examiner so directs, a true copy of such matter, in proper form, shall be received as an exhibit, and like copies delivered by the party offering the same to opposing parties or their attorneys ap- pearing at the hearing, who shall be afforded opportunity to examine the book, paper or document, and to offer in § 280] Commerce Commission. 611 evidence in like maimer othev portions thereof if found to be material and relevant. (b) In case any portion of a tariff, rej)ort, circular, or other document on file with the Commission is offered in evidence, the party offering the same must give specific reference to the items or pages and lines thereof to be con- sidered. The Commission will take notice of items in tariffs and annual or other periodical reports of carriers properly on file with it or in annual, statistical, and other official reports of the Commission. When it is desired to direct the Commission's attention to such tariffs or reports upon hear- ing or in briefs or argument it must be done with the pre- cision specified in the second preceding sentence. In case any testimony in proceedings other than the one on hearing is offered in evidence, a coi:>y of such testimony must be pre- sented as an exhibit. "When exhibits of a documentary char- acter are to be offered in evidence, copies must be furnished to opposing counsel. (c) All exhibits showing rates or distances must, by proper I. C. C. number reference, indicate the tariff authority for the rates, and must also show by lines and junction joints the routes via which the distances are computed, as well as the authority for the distances used. (d) All exhibits received in evidence are bound with the rest of the record in covers of uniform size. It thus be- comes desirable that, wherever practicable, they should be on one side only of sheets not exceeding 12^/^ inches from top to bottom by 22 inches in width, and imperative that a suf- ficient margin for binding, preferably ly^ inches, be left blank on the left side of each sheet. They must be on paper of good quality and so prepared as to be plainly legible and durable, whether printed, typewritten, mimeographed, piano- graphed, photographed or otherwise. The use of hectograph and white-line blue prints is discouraged. (e) The sheets of each exhibit and the lines of each sheet should be numbered, wherever practicable. The first sheet, or title page should be confined to a brief statement of what the exhibit purports to show, with reference by sheet and line to illustrative or typical examples contained in the ex- 612 Peocedube of the Interstate. [§ 281 hibit. It is desirable that, wherever practicable, rate compari- sons and other evidence should be condensed into tables. (f) Where agreed upon by the parties at or after the hearing, the presiding commissioner or examiner, if he deems advisable, may receive specified documentary evidence as a part of the record within a time to be fixed by him, but which shall expire not less than 10 days before the date fixed for filing and serving bHefs. (g) Except as above provided, or as may be expressly permitted in particular instances, the Commission will not receive in evidence or consider as part of the record any docu- ments, letters or other writings submitted for consideration in connection with the proceeding after the close of the tes- timony, and will return the same to the sender. Rule 13. § 281. Briefs and Oral Argument. (a) Briefs must be printed and comply with the require- ments of Rule XXI. The date of each brief must appear on its front cover or title page. Each brief should contain an abstract of the evidence relied upon by the party filing it, preferably assembled by subjects, with reference to the pages of the record or exhibit where the evidence appears. It should include requests for such specific findings as the party thinks the Commission should make. (b) Exhibits should not be reproduced in the brief, but may, if desired, be reproduced in an appendix to the b^rief. Analyses of such exhibits should be included in the abstract of evidence under the subjects to which they pertain. The ab- stract of evidence should follow the statement of the case and precede the argument. Every brief of more than 20 pages shall contain on its front fly-leaves a subject index with page references, the subject index to be supplemented by a list of all cases cited, alphabetically arranged, with references to the pages where the citations appear. In proceedings upon com- plaint alleging undue prejudice to or preference of any locality as contrasted with another locality, or otherwise attacking a rate relationship, the complainant should insert in his brief opposite the statement of the case a small map or chart of the territory showing the situation involved. "^ 281] Commerce CoMMissioisr. G13 (c) Briefs not filed with the Commission and served on or before the dates fixed therefor will not ]h received except by special permission of the Commission. All briefs must be accompanied by notice, showing service upon all other parties or their attorneys who appeared at the hearing or on brief, and 20 copies of each brief shall be furnished for the use of the Commission. 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 Commision at least five days before the time fixed for filing such briefs. (d) Except as hereinafter provided in subdivision (e) of this rule, briefs for the various parties shall be filed in the same order as governs in the taking of their testimony at hearings. At the close of the testimony in each case the presiding commissioner or examiner will fix the time for filing and service of the respective briefs as follows, unless good cause for variation therefrom is shown : For the opening brief, 30 days from close of testimony ; for the bjrief of the opposing party, 15 days after the date fixed for the opening brief; for reply brief, 10 days after the date fixed for the brief of the opposing party. Briefs of interveners shall be filed and served within the time fixed for the brief of the party in whose behalf the intervention is made, or within such other time as may be fixed by the presiding connnissioner or examiner. Parties who fail to file opening brief, as required by this rule, will not be permitted to file reply to brief of op- posing party. Except as provided in subdivision (e) of this Rule applications for oral argument before the Commission or a Division thereof shall be made at the hearing or in writ- ing within 10 days after the close of testimony. (e) For application in cases designated in the notices set- ting them for hearing as "proposed report" cases, the follow- ing procedure will govern, superseding that prescribed else- where in these Rules in so far as confiicting therewith : I. If oral argmnent before the presiding conunissioner or examiner is desired he should be so notified at or before the hearing and may arrange to hear the argument at the close of the testimony within such limits of time as he may determine, having regard to other assignments for hearing before him. 614 Procedure of the InteiRstate. [<§ 281 Such argument will be transcribed and bound with the transcript of testimony and will be available to the Commission for con- sideration in deciding the case. The making of such argument shall not preclude oral argument before the Conmnssion, or a Division thereof, and application therefor may be made as hereinafter provided. 2. Only one initial brief shall be filed by each party. The presiding commissioner or examiner .shall fix for all parties the same time within which to file their briefs. Reply briefs are not permitted at this stage. 3. After expiration of the time set for briefs the presiding or participating examiner will prepare his proposed report containing the statement of the issues and facts and the findings and conclusions which he thinks should be made. This proposed report will be served by mailing copies to the parties or attorneys who appeared at the hearing or upon brief, except that in general investigations copies may also be mailed in the Commis- sion's discretion to other parties whose appearances are noted of record. 4. Within 20 days after service of the proposed report any party may file and serve, in the manner prescribed for briefs, exceptions to the examiner's proposed report and brief in support of the exceptions. Exceptions and brief should be contained in one print. Within 10 days after expiration of the time so fixed briefs in reply to the exception briefs may be filed and served, but will not be received later except under leave granted upon application therefor. Applications for oral argu- ment before the Commission or a Division thereof if made by a party filing exceptions must accompany the exceptions, or if made by a party not filing exceptions must be filed not later than 10 days after the time fixed for filing and service of ex- ceptions. Parties or attorneys at El Paso, Tex., Salt Lake City, TTtalh Spokane, Wash., or points west thereof, who appeared at the hearing or upon brief, will be allowed 5 days' additional time for filing and serving exceptions, exception briefs and reply briefs, respectively. 5. Exceptions to the examiner's proposed report either as to statements of fact or matters of law should be specific. If ex- ception is taken to matters of law or conclusions the points re- lied upon should be stMed separately and clearly. If excep- tion is taken to any statement of fact reference should be made to the pages or parts of the record relied upon and a corrected statement incorporated in the exception brief. 6. In the absence of exceptions that are sustained or of ascertained error the statement of the issues and of the facts by the examiner will ordinarily be taken by the CommLssion as the basis of its report. Rule 14, § 282] CoMMEECE Commission. 615 § 282. Rehearings. (a) Applications for further hearing in a proceeding be- fore final submission, for reopening a proceeding after final submission, or for rehearing or reargument after decision, must be made by petition, stating specifically the grounds relied upon, filed with the Commission and served by the petitioner upon all parties or attorneys who appeared at the hearing, or oral argument if had, or on brief. (b) If the application be for further hearing before final submission, or for reopening the proceeding to take further evidence, the nature and purpose of the evidence to be ad- duced must be briefly stated and must appear not to be merely cumulative. (c) If the application be for rehearing or reargument, the matters claimed to have been erroneously decided must be specified and the alleged errors briefly stated. If thereby any order of the Commission is sought to be vacated, reversed or modified by reason of matters which have arisen since the hearing, or of consequences which would result from compli- ance therewith, the matters relied upon ]ty the petitioner must be fully set forth in the petition. (d) Applications for modification of orders which seek only change in the date when they shall take effect or in the period of notice thereby prescribed must be made by petition seasonably filed and served in like manner as other applica- tions under this rule, except that, in case of unforeseen emer- gency satisfactorily shown by the applicant, such relief may be sought informally, by telegram or otherwise, upon notice thereof to all parties or attorneys who appeared as aforesaid. (e) A petition for rehearing that part of any case relat- ing to reparation must be filed within 60 days after service of the finding or order therein. (f) Each petition filed under this rule shall be accom- panied by 15 copies thereof for the use of the Commission, and by notice showing service upon the parties or attorneys who appeared as aforesaid. AVithin 10 days after such service any adverse party may file and serve in like manner a reply to the petition, the reply so filed to be accompanied by like number of copies for use by the Commission. Rule 15. 616 Procedure of the InteiRState. [§ 283 § 283. Free Copies of Transcript of Testimony, When Fur- nished. (a) One copy of the transcript of testimony will be furnished by the Commission -without charge for the use of the complainant and one copy for the use of the defendant. If two or more complainants or defendants have appeared at the hearing, such complainants or defendants must designate to whom the copy for their use shall be delivered. A similar course will be pursued in proceedings involving the suspen- sion of tariffs. (b) In proceedings instituted by the Commission on its own motion, other than proceedings involving the suspension of tariffs, no copies of the transcript will be furnished by the Commission. Ride 16. § 284. Orders Must Be Complied With And Notice Given To The Secretary Of The Commission. (a) AVhen an order has been issued the defendants or respondents named therein must promptly notify the Com- mission on or before the date upon which such order becomes effective whether or not compliance has been made therewith. If a change in rates is required the notification must be given in addition to the filing of proper tariffs, and must specify the I. C. C. numbers of the tariffs so filed. Rule 17. § 285. Fourth Section Applications. (a) Any common carrier subject to the Act may apply to the Commission, under the proviso clause of the fourth sec- tion^ for such authorization as it is empowered to grant there- under. Such application must conform to Rule XXI. The application should specify the places and traffic involved, the rates, fares, or charges on such trafSc for the shorter and longer distances, the carriers other than the applicant which may be interested in the traffic, the special nature of the case, the character of the hardship claimed to exist, and the extent of the relief sought by the applicant. Upon the filing of such application the Commission will take such action as the cir- cumstances of the case require. Rule 18. § 286. Suspension Of Rate Increases, How Obtained. (a) Suspensions of tariff schedules under section 15 of the Act will not ordinarily be considered unless protest and <§> 287] Commerce Commission. 617 application therefor is made in writing or by telegram at least 10 days before the effective date named in the schedule. Applications for suspensions must indicate the schedule af- fected by its I. C. C. numljjer and give specific reference to the items against which protest is made, together with a state- ment of the grounds thereof. If such application is made by telegram it must be confirmed and followed by application in writing and should succinctly state the substance of the mat- ters to be set forth in the written application. Seven copies of each written application should be furnished to the Commis- sion. Rule 19. § 287. Secretary To Give Information To Parties. (a) The secretary of the Commission will, upon request, advise as to the form of complaint^ answer, or other paper to be filed in any proceeding. Rule 20. § 2S8A. Specifications as to Complaints, Answers, Petitions, Applications, Briefs, Etc. (a) All formal complaints, answers, motions, petitions, applications, notices, depositions, or other papers to be filed, must be typewritten or printed. (b) If typewritten they must be on paper not more than Si/o inches wide or 12 inches long, weighing not less than 16 pounds to the ream, folio base 17 by 22 inches, with left-hand margin not less than 11/2 inches wide. The impression must be on only one side of the paper. (c) If printed they, as well as briefs, must be in 10 or 12 point type, on good unglazed paper, 5-7/8 inches wide by 9 inches long, with inside margin not less than 1 inch wide, and with double-leaded text and single-leaded citations. (d) Complaints, answers, motions, petitions, applications and notices must be signed in ink by the party, petition or applicant, or by his or its duly authorized attorney, and must show the office and post office address of the signer. Rule 21. § 28&B. Otfice and Address of the Commission. (a) Pleadings and other papers required to be filed with the Commission may be transmitted by mail or express, or otherwise delivered, but must be received for filing at its of- fice in Washington, D. C, within the time limit, if any, for such 618 Peocedure of the Interstate. [§ 289' filing. That office is open from 9 a. m. to 4:30 p. m. of each business day. (b) All communications to the Commission must be ad- dressed to Washington, D. C, unless otherwise specifically di- rected. Rule 22. § 289. Form of Complaint. Note. — These forms may be used f.n cases to which they are appli- cable, with such alterations as the circumstances may render necessary. BEFORE THE INTERSTATE COMMERCE COMMISSION. 1 V. ] The Railroad Company J- Railway Company. | {Insert corporate title, ivitJiout ahhreviation of carrier, or car- riers, necessary or proper de- fendamts.) The complaint of the above-named complainant, respect- fully shows : I. That {complainant should here state nature and place of business, also whether a corporation, firm, or partnership, a)td if a firm or partnership, the individual names of the parties composing the same.) II. That the defendant above named is a (are) common earner engaged in the transportation of (passengers and) prop- erty, wholly by railroad {or, partly by railroad and partly by water), between points in the state of and points in the state of , and as such common carrier is (are) sub- ject to the provisions of the act to regulate commerce approved Februaiy 4, 1887, and acts amendatory thereof or supplemental thereto. III. That {state in this and suhsecjuent paragraphs to he numbered IV, V, etc.^ the matter or matters intended to be com- plained of, naming every rate, fare, charge, classification, regula- tion, or practice the lawfulness of which is challenged, and also each point of origin and point of destination between ivhich the rates, etc., complained of are applied. Whenever practical tariff references should be given.) {Where discrimination is charged, the facts constituting the § 289'] Commerce Commission. 619 basis of the charge should he dearly stated; that is, if the discrimination he under section 2, the person or persons claimed to he favored and the person or persons claimed to he injured should he named, and the kind of service and kind of traffic, .together with the claimed similarity of circumstances and con- ditions of transportation, shmdd he set forth. If the discrimina- dion he under section 3, the particular person, company, firm, corporation, locality, or traffic claimed to he accorded undue or unreasonable preference or advantage, or subjected to undue or unreasonable prejudice or disadvantage, shoidd be stated. If the discrimination he under section 4, the particular provision of the section claimed to he violated — that is, ivhether the long- and-short-haul provision or the aggregate of intermediate rates provision — as well as the facts constituting such violation should be stated.) X. That by reason of the facts stated in the foregoing paragraphs complainant has (have) been subjected to the pay- ment of rates (fares or charges, etc.) for transportation which were when exacted, and still are, (1) unjust and unreasonable in violation of section 1 of the act to regulate commerce, and (or) (2) unjustlj^ discriminatory in violation of section 2, and (or) (3) unduly preferential or prejudicial in violation of sec- tion 3, and (or) (4) in violation of the long-and-short-haul (or, aggregate of intermediate rates) provision of section 4 thereof. (Use one or more of the allegations numbered 1, 2, 3, 4, accord- ing to the facts as intended to he charged.) That complainant has (have) been injured thereby to his (its, their) damage in the sum of dollars. Wherefore complainant pray that defendant may be (sev- erally) required to answer the charges herein : that after due hearing and investigation an order be made commanding said defendant (and each of them) to cease and desist from the aforesaid violations of said act to regulate commerce, and es- tion of between the origin and destination points named in paragraph hereof, in lieu of the rates (fares, or charges, etc.), named in said paragraph, such other rates (fares, or charges, etc.) as the Commission may deem reasonable tablish and put in force and apply in future to the transporta- and just (and also pay to complainant by way of reparation for the unlawful charges hereinbefore alleged the sum of , 620 Procedure of the Interstate. [§ 290 or such other sum as, in view of the evidence to be adduced herein, the Commission shall determine that complainant is (are) entitled to as an award of damages under the provisions of said act for violation thereof), and that such other and further or- der or orders be made as the Commission may consider proper in the premises. Dated at ,19... ( Complainant's signaiure ) Form No. 1. § 290. Form of Answer. BEFORE THE INTERSTATE COMMERCE COMMISSION. 1 \ The Railroad CompanyJ Docket No The above-named defendant, for answer to the complaint in this proceeding, respectfully state : I. {Here folloiv appropriate a^id responsive admissio7is, de- nials, and averments, answering the complaint paragraph by paragraph.) Wherefore defendant pray that the complaint in this pro- ceeding be dismissed. THE RAILROAD COMPANY, By {Title of ofcer.) Form No. 2. § 291. Intervening Petition. BEFORE THE INTERSTATE COMMERCE COMMISSION. 1 V. ^ Docket No J Comes now your petitioner, and re- spectfully represents that he has an interest in the matters in litigation in the above-entitled proceeding and moves that he may be allowed to intervene in and become a party to said pro- ceeding, and for cause of intervention says: § 291A] Commerce Commission. 621 I. That (intervener should here state nature and place of business, and whether a corporation, firm, or partnership, etc.). II. (Intervener shoidd here set out specifically its interest in the above-entitled proceedAng in accordance with the last para- graph of rule II of the rules of practice.) Wherefore said prays leave to intervene and be treated as a party hereto with the right to have notice of and appear at the taking of testimony, . produce and cross- examine witnesses, and be lieard in person or l)y counsel upon brief and at the oral argument, if oral argument is granted. Dated at , 19 . . . (Intervener's signature.) Form No. 3. § 291a. Petition for Rehearing. BEFORE THE INTERSTATE COMMERCE COMMISSION. 1 V. \ Docket No J Comes now the complainant (or defendant) in the above- entitled proceeding and respectfully petitions the Commission to grant a rehearing therein, and in support of said petition re- spectfully shows : I. (Here set out specifically the nmtters claimed to he er- roneously decided,- with a brief statement of the alleged errors^ in conformity with rule XV of the rules of practice.) Wherefore petitioner prays tliat a rehearing be granted in the above-entitled case and that the Commission enter such fur- ther order or ordei-s in the premises as to it may seem reason- able and just. Dated at , 19 . . . (Petitioner's signature. ) Form No. 4. § 291C. Form of Original Complaint Against the Federal Agent. BEFORE THE INTERSTATE COMMERCE COMMISSION. J 622 Procedure of the Interstate. [*§> 2910 The complaint of the above-named complainant.., respect- fully shows : I. That (Complainant should here state nature and place of business, also whether a corporation, firm, or partnership, and if a firm or partnership, the individual names of the partners composing the same.) II. That defendant , Federal Agent is an officer of the United States, appointed by the Presi- ,dent pursuant to the provisions of section 206(a) of the Trans- portation Act, 1920, and as such agent is a representative of the federal government against whom should be brought actions at law and suits in equity, based on causes of action arising out of the possession, use, or operation by the President of the railroad or .system of transportation of any carrier (under the provisions of the Federal Control Act, or of the Act of August 29, 1916) of such character as prior to Federal control could have been brought against such carrier; and that the railroads and systems of transportation over whose lines or routes the rates (fares, charges, classifications, regulations, or practices) complained of herein applied, and which during federal control were operated by the Director General of Railroads, are as fol- lows: (Here specify the carriers whose railroads or systems of transportation were under federal control and over which the rates, fares, cliarges, classifications, regulations or practices ap- plied unless complainant elects to name the corporations or companies as defendants.) III. That (state in tliis and subsequent paragraphs to be numbered IV, V, etc., the matter or matters intended to be com- plained of, naming every rate, fare, charge, classification, regu- lation, or practice the lawfulness of which is challenged, and also each point of origin and point of destination between which the rates complained of are applied. Whenever practical tariff references should be given.) (Where unjust discrimination or undue prejudice is charged, the facts constituting the basis of the charge should be clearly stated; that is, if the discrimination be under section 2, tlie person or persons claimed to be favored and the person or per- sons claimed to be injured should be named, and the kind of service and kind of traffic, together with the claimed similarity of circumstances and conditions of transportation, should be set forth. If the discrimination or undue prejudice be under sec- Commerce Commission. 623 NOisnaa 8 o XTi 00 en S,M0ISSIWW03 o o aHX ao sisva r^ ?i a S T)-' NO NOIXVHVda^ ^ ^ n a (-1 s < 8 ~W 8 s? CNJ 00 fVJ r-^ y^ o< g ?8 {^ ^ ^ D o X w ^D o vO ^ •Si oi S Q 2 8 T in CNJ "^ in W U^ CNl o ^ rn o t< g < a: o < ^ ■^ "* ^ u 1/2 lO in lO H (N) CM tf) < ^ ^ ^ ^ ■ < 'A (fi XHOia^v i "1" in 1 o ^0 cJ: w m ro ^i AxiaoiMwo3 "3 CO o o -a O ■a H X * W ^ £ axno^ o o •a o NOIXYNIXSaQ QH O T3 o -a O "bi NIOI^O O o T3 o XI HaaivnN av3 in '2 ON g CO -.o o o ^ ^ _• . savixiNi HV3 Ph' u w 9^ Z: -" a , Q 32 00 00 ON 'y] « 2 ON ON 5^ Date CHARGE ERE PA in en ^• r< oi live; ;r of RY 00 00 00 ON ON ON ON ON w S w Q Q > o fn ro CO Z - CNl CNl "^ w ^ o g g o O Q a < < o Q CO 00 00 On ON oJ ON O^ S *• s r^ o o •ON ^ o g " s ■jj o o «' Ui o o Q ^ T) (4 a :3 ci -^ * ^H o3 oj -0 ■n cS fl 4) t>H n fl t3 5 g 624 Procedure of the Interstate. [§ 291C tion 3, the particular person, company, firm, corporation, local- ity, or traffic claimed to be accorded undue or unreasonable pref- erence or advantage, or subjected to undue or unreasona1)le pre- judice or disadvantage, should be stated. If the complaint is brought under section 10 of the Federal control act approved iMarch 21, 1918, that fact should be stated and appropriate al- legations made.) X. That by reason of the facts stated in the foregoing para- graphs complaint has (have) been subjected to the payment of rates (fares or charges) for transportation which were when ex- acted, and still are, and if maintained in the future will be (1) unjust and unreasonable in \dolation of section 1 of the Inter- state Commerce Act and (or) (2) unjustly discriminatory in violation of section 2, and (or) (3) unduly preferential or preju- dicial in violation of section 3, and (or) (4) unjust and unrea sonable in violation of section 10 of the Federal control act. (Use one or more of the allegations numbered 1, 2, 3, 4, accord- ing to the facts as intended to be charged.) Wlierefore complainant prays that defendant may be (sev- erally) required to answer the charges herein; that after due hearing and investigation an order be made commanding said defendant (and each of them) to cease and desist from the afore> said violations of said Interstate Commerce Act, and (or) said Federal control act, and establish and put in force and apply in future to the transportation of between the origin and destination points named in i)aragraph .... hereof, in lieu of the rates (fares, chargess classifications, regulations, or practices) named in said paragraph, such other maximum rates (fares, charges, classifications, regulations, or practices) as the Commission may deem reasonable and just (and also pay to com- plainant by way of reparation for the unlawful charges herein- before alleged the sum of .... or such other sum as, in view of the evidence to be adduced herein, the Commission shall deter- mine that complainant is (are) entitled to as an award of dam- ages under the provisions of .said act for violation thereof), and that such other and further order or orders be made as the Com- mission may consider proper in the premises. Dated , 19. .. Complainant. Form No. 6. Conference Rulings. 625 EXPLANATORY NOTE. That the conference rulings of the Interstate Commerce Com- mission are important to shippers and carriers and are not al- ways available, make proper their insertion here. These are copied just as issued by the Commission. The Commission in a preface to the rulings says : "Tlie rulings of the Commission in conference are announced informally from time to time through the public press and are later edited and issued in this form for the information of ship- pers, carriers, and others interested in transpoi-tation matters. The rulings express the views of the Commission on informal in- quiries involving special facts or requiring an interpretation and construction of the law, and are to be regarded as precedents governing similar cases. This bulletin contains all the rulings promulgated by the Commission since it adopted the practice of publishing them, and takes the place of previous bulletins. It will be observed that in the light of a wider knowledge of the subjects involved some of the rulings have been withdrawn, while others have been modified and restated in later rulings. In such instances the text of the original ruling has been omitted, while the title and numl)er have been retained ^\'ith annotations directing attention to the development of the principle in the subsequent ruling. For convenience of reference it is suggested that conference rulings be cited in briefs and correspondence in this form ^ "Conf. Ruling ," giving the number of the ruling, it being unnecessary to refer also to this bulletin by its number; where the ruling consists of lettered paragraphs, as for example Ruling 220, tlie particular pragraph may be cited in this form : " Conf. Ruling 2206." Ci2G Conference Rulings. CONFFERENCE RULINGS OF THE INTERSTATE COM- MISSION. November 4, 1907. 1. PASSES TO CARETAKERS.— An employee of a pro- duce company was granted a pass for the purpose of going to a point on the carrier's lines and returning as caretaker of a carload of bananas. He was not able to secure a return ship- ment: Held, That the carrier must collect the full fare. (See ruling 37.) 2. TARIFFS DISTINGUISHING BETWEEN SHIP- MENTS HANDLED BY STEAM AND ELECTRICAL POWER. — An amendment to tariff provided : ' ' The above rates will only apply on shipments handled by steam power and will not apply when handled by electrical power ' ' : Held, That the limitation of the rates to shipments handled by steam power is unlawful and must be eliminated from the tariff. (See ruling 34.) 3. COLLECTION OF UNDERCHARGES.— (Restated in ruling 314.) November 11, 1907. 4. RATES ON NEW LINES.— Rule 44 of Tariff Circular No. 14-A, providing that rates may be established in the first instance on "new lines" without notice, was intended to ap- ply to newly constructed lines only. (See Rule 57, Tariff Circu- lar 18-A.) 5. FREE STORAGE CREATING DISTRIBUTING POINT FOR PRIVATE INDUSTRY.— Its attention being called to a tariff which, in effect, created a distributing point for a special industry by granting it fi'ee storage at that point, either in its own or the carrier's warehouses, and practically without limit as to time, the merchandise when shipped out to go on balance of through rate, the Commission expressed its disapproval.. 6. RECONSIGNMENT RULE WILL NOT BE GIVEN RE- TROACTIVE EFFECT.— A shipment consigned to one point was reconsigned en route to another, the tariff containing no re- consignment privilege. As a consequence local rates to and Conference Rulings. 627 from the reconsigiiing point were applied and made higher than the through rate : Held, TTnder subsequent tariff that did not reduce rates, but ineoi^porated a reconsignnient privilege, that the benefit of such privilege could not be applied retroactively to a previoiLS shipment, and can not be accepted as the basis for a refund on special reparation docket, (Extended in application bj^ rulings 77 and 166. See Cady Lumber Co. v. M. P. Ry. Co., 19 I. C. C, 13; Henry v. Eastern Ry. Co., 20 I. C. C, 172; and Swift & Co. v. M. & 0. R. R. Co., 39 I. C. C, 701.) November 18, 1907. 7. COMMISSIONS ON IMPORT TRAFFIC— Tlie granting by carriers of eonunissions to persons acting as consignees on import traffic is a practice that can not l)e sanctioned. (See rul- ings 221«, 300, and 444.) 8. DEMURRAGE CHARGES RESULTING FROM STRIKES. — The Commission has no power to relieve carriers from the obligation of tariffs providing for demurrage charges, on the ground that such charges have been occasioned by a strike. ( See note to ruling 242, and ruling 358. ) 9. FREE TRANSPORTATION BY CARRIERS FOR ONE ANOTHER.— (Restated in ruling 2256.) December 2, 1907. 10. STATUTE OF LIMITATIONS.— Claims filed with the Conunission since August 28, 1907, must have accrued within two years prior to the date when they are filed; otherwise they are barred by the statute. Claims filed on or before August 28, 1907, are not affected by the two years' limitation in the act. (See rulings 220 j, 306, and 307; also Fels t& Co, v. P. R. R. Co., 23 L C. C, 487.) 11. REDUCTION OF RATE WHEN FORMAL COM- PLAINT AGAINST IT IS PENDING.— (Restated in ruling 14.) 12. TARIFF THAT FAILS TO STATE THE DATE OF ITS EFFECTIVENESS IS UNLAWFUL.— A tariff was filed without naming a date on which it was to take effect. Does it ever become effective; and if so, when? Held, That the tariff G28 Conference Rulings. was imlawful ai]d has never taken effect. (See rulings 73 and 1006.) 13. TARIFFS NOT CONCURRED IN ARE UNLAWFUL. — A properly accredited chairman of a tariff committee published tariffs for certain carriers for which he was the duly constituted attorney in fact for that purpose. A carrier declining to con- cur in his tariffs put a new cover on them and filed them as its own tariffs without securing the concurrences of the other car- riers named therein: Held, That the tariffs so adopted were unlawful and could not be used by the carrier. Januarij 6, 1908. 14. MAINTENANCE OF RATE REDUCED AFTER COM- PLAINT FILED.— On December 2, 1907, it was decided that when a rate is reduced after answer has been made and before hearing, the report disposing of the proceeding shall carry with it an order directing the defendant to maintain that rate as a maximum for not less than two years. On December 6 it was decided that orders in special reparation cases shall include a clause providing that the new rate or regulation upon the basis of which reparation is granted shall be maintained for a period of at least one year. It is now agi"eed that the two years so required in orders upon formal complaints and the one year in orders in special repara- tion cases shall run from the date of the order and not from the date when the reduced rate or new regulation became effective. (See rulings 130, 200-a, and 396.) 15. DELIVERING CARRIER MUST INVESTIGATE BE- FORE PAYING CLAIMS.— (Restated in ruling 462.) 16. DELIVERING CARRIER MUST COLLECT UNDER- CHARGES. — Even though an undercharge residts from an er- ror in billing by the initial carrier or a connection, the delivering carrier must collect the undercharge. The legal expense attend- ing its efforts to collect undercharges in such cases would seem to be a valid claim against the carrier through whose fault the mistake was made. (Reaffirmed by ruling 156; see also ruling 214; also Wedern Classification Case, 25 I. C. C, 475.) Conference Rulings. 629 17. FEEDING AND GRAZING IN TRANSIT.— (Restated in rilling 442.) 18. FREE TRANSPORTATION OF DEAD BODY OF EM- PLOYEE. — When an employee of a caii-ier hav^ been killed or has died in service at a distant point, the carrier may, free of charge and as a general incident to the relation between it and its employees, lawfully transport the body to the home of the deceased for burial. (See Rulings 173 and 193.) Note. — The amendatory act of April 13, 1908, expressly sanctions the free transportation of the remains of a person killed in its employ. 19. EXPENSE INCURRED IN PREPARING CARS FOR SHIPMENTS CAN NOT BE PAID BY CARRIER IN THE ABSENCE OF TARIFF PROVISION THEREFOR.— Not having box cars available for the movement of machinery, cattle cars were .supplied at the request of the shipper, who lined them with tar paper an,d felt in order to protect his shipments from weather conditions: Held, That in the absence of tariff author- ity the carrier can not lawfully reimburse the shipper for the expense so incurred. (See rulings 78, 132, 267, 292, and 360.) 20. SPECIAL UNDERSTANDINGS BETWEEN SHIP- PERS AND CARRIERS, NOT PUBLISHED IN THEIR TARIFFS, OF NO VALID EFFECT.— A shipjier had an un- derstanding with agents of carriere that when he delivered ship- ments to them consigned to stations at whicli there were no agents the carriers would so advise him and hold the sliipments for further direction. In a given case a carrier neglected to so advise him and to hold the .shipment, but billed it and sent it forward to a nonagency station as a prepaid shipment : Held, That the shipper must pay the charges, and that no understand- ing of that nature, not incorporated in the published tariffs of the carrier, wall operate to relieve the carrier from the duty of collecting the lawful chargas. (See ruling 235.) 21. CARETAKERS OF I\IILK.— The provision of law relat- ing to the free transportation, of necessary caretakers of live- stock, poultry, and fruit can not be constinied to include care- takers of shipments of milk. Note. — Under the amendatory act of June 18, 1910, free transporta- tion may be accorded to caretakers of milk. 630 Conference Rulings. 22. FREE CARRIAGE OF COMPANY MATERIAL.— It is not unlawful for a carrier to return its own property free of charges, to the manufacturers thereof situated on its own line, for exchange or repair. 23. EXTENSION OF TIME ON THROUGH PASSENGER TICKETS.— (Withdrawn in ruling 43.) 24. CANADIAN FARES.— A Canadian carrier ha\ang joint through fares from a point in the United States to points on its OMTi line may not depart from those fares by the de\ace of plac- ing an agent at such point in the United States with authority to sell tickets from the first station on its line north of the Canadian boundary to other points on its line in Canada at the rate of 1 cent a mile, "to be sold only to such persons as produce a cer- tificate of the immigration agent of the Canadian government." Besides being a device, tickets so limited to particular persons operate as a discrimination. But in the absence of such joint through fares from a point in the United States to points on its own lines this Commission has no jurisdiction over the fares ac- tually charged and collected for the separate transportation be- tween points in Canada. (See ruling 98.) 25. REFUND OF DRAYAGE CHARGES CAUSED BY MISROUTING.— (Restated in ruling 509.) 26. USE OF INTRASTATE COMMUTATION TICKET IN INTERSTATE JOURNEY.— In the absence of a provision in the commutation contract forbidding it, a commutation ticket may be used between the points named on it in connection with an interatate journey on trains that stop at such points. January 13, 1908. 27. EXCURSION TICKET INVALIDATED THROUGH FAILURE OF CARRIER TO MAKE CONNECTION.— A pas- senger traveling on a special limited excursion ticket with stop- over privilege leaves a stop-over point in ample time to make all connections and meet conditions of ticket; but through succes- sive delays to trains misses connections at a certain junction, making the ticket twenty-four hours out of date. Regular fare w^as collected for the balance of the return trip : Held, That the Conference Rulings. 031 carriers ought to make the ticket good, it having become invalid through their fault. 28. TICKETS FOR TRANSPORTATION AND MEALS, HOTEL ACCOMMODATIONS, ETC.— A carrier publishes a tariff offering certain transportation fares and rates for per- sonally conducted tours with tickets to cover meals, hotel accom- modations, etc., and declines to sell the transportation ticket to anyone who does not also purchase the tickets covering meals and hotel accommodations: Held, That the two matters must be kept separate, and carriers may not decline to sell such trans- portation without tickets for meals and hotel accommodations. (See ruling 384.) 29. QUOTATIONS FROM CORRESPONDENCE OF THE COMMISSION. — The Commission requests that if extracts from its correspondence are sent out by carriers, such extracts be made sufficiently full, or that sufficient of the corraspondence be presented, to give a complete view and undei-standing of the meaning of the ruling and of the circumstances discussed, or of the inquiry answered therein. January 15, 1908. 30. CARRIERS' MONTHLY REPORTS TO BE FUR- NISHED IN DUPLICATE.— Beginning as of January 1, 1908, monthly reports of revenues and expenses, as provided for in the order of the Commis.sion, bearing date July 10, 1907, shall be filed in duplicate, and on or before the last day of the month im- mediately following the month covered by the report shall be de- posited in the United States Post Office, postage prepaid, and plainly addressed to the Bm-eau of Statistics and Accounts, In- terstate Conunerce Commission, Washington, D. C, 31. DEMURRAGE CHARGES ON ASTRAY SHIPMENTS. — An astray shipment of perishable merchandise was not re- billed to its proper destination, but was sold by the consignee at the point where he found it. The delivering carrier at that point had assessed demurrage charges before the shippers were able to locate the car. That carrier expressed its ^^^llingne.ss to waive the demurrage if the Commission permits : Held, That demur- rage charges stand in the same light as transportation charges 632 Conference Rulings. and may be adjusted under ruling: 217 of this Bulletin, formerly published as Rule 74 of Tariff Circular 15-A. Fehrmry 3, 1908. 32. DEMURRAGE CHARGES.— The delivering carrier is under obligation to collect demurrage charges assessed by it, al- though such charges may have accrued as the result of error on the part of another carrier. (See ruling 220-/; see also note to ruling 242.) 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 adjustment of misrouting claims, will not ordinarily include demurrage charges. (See Ruling 220-e; also Ed. Caddell & Sotus v. C. & 8. By. Co., U. R. Op. 177.) 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. (See Code of National Car DemuiTage Rules.) 33. REDUCED RATE TRANSPORTATION FOR FED- ERAL, STATE, AND MUNICIPAL GOVERNMENTS.— Un- der section 22 of the act to regulate commerce, carriers may grant reduced rates for the transportation of property for the United States or for state or municipal governments, under ar- rangements made directly with such government and in which no contractor or other third penson intervenes, without filing or posting the schedule of such rates with the Counnission. (See mlings 36, 208c, 218, 244, 311, and 452.) 34. COAL USED FOR STEAM PURPOSES NOT EN- TITLED TO REDUCED RATES.— A tariff providing for re- duced rates on coal used for steam purposes, or that the carrier wdll refund part of the regular tariff charges on presentation of evidence that the coal wa.s so used, is improper and unlawful. That is to say, the carrier has no right to attempt to dictate the iLses to which commodities transported by it shall be put in or- der to enjoy a transportation rate. (See ruling 2; also Board of Bnstol, Tenn., v. V. & S. W. By. Co., 15 I. C. C, 456; In Conference Rulings. 633 I the Matter of Restricted Rates, 20 I. C. C, 427; and Divisions of Joint Rates on Railway Fuel Coal, 37 I. C. C, 265. 35. USE OF STATE PASSES IN INTERSTATE JOUR- NEYS UNLAWFUL. — Passes granted to state railroad connnis- sioners can not lawfully be nsed in interstate journeys. February 4, 1908. 36. RATES ON SHIPMENTS FOR THE FEDERAL GOV- ERNMENT. — If title to property, such as postal cards, passes to the Government at the point of manufacture, the carrier may agree upon a rate to be applied for transporting it for the government to another point, without filing a tariff with the .Commission. But if the manufacturer under his contract is required to deliver to the' government at such other point, the transportation must be under the published tariff' rate. In other words, if the shipment is made directly by the government, this rate may be fixed by the carrier without posting and filing the tariff, but not otherwise. (See ruling 33, and ruling 244 rescind- ing ruling 65 ; also see ruling 452 ; also United States v. A. & V. Ry. Co., 40 I. C. C., 406.) 37- PASSES TO CARETAKERS.— Passes to caretakers must be in the form of trip passes limited to the journey on which the person to whom the pass runs acts as a caretaker. It may also cover the return journey. Annual or time passes to care- takers are unlawful. (See ruling 1.) 38. REPARATION ON INFORMAL COMPLAINTS.— (Re stated in ruling 396.) March 3, 1908. 39. ACCRUED DEMURRAGE CHARGES.— A shipper who had customarily paid his freight charges in checks was called upon, under a general order i-ssued by the carrier, to pay his freight charges in cash during the recent financial dis- turbances. While the local agent was endeavoring to get author- ity from the home office of the carrier to continue to accept checks from this shipper, demurrage charges accrued : Held, That they could not lawfully be refunded. (See note to ruling 242.) 634 Conference Rulings. 40. PRINTING OF BRIEFS.— (See current Rules of Prae- 'tice. ) 41. DIVISION OF PROCEEDS OF SALE OF SHIPMENT TO PAY FREIGHT CHARGES.— A shipment refused by the consignee and upon which demurrage had accrued was sold by the delivering carrier, but did not realize the amount of the transportation charges and the amount paid for unloading. Up- on the request of the carrier the Conmiission declined to express its views as to the manner in which the proceeds of the sale should be divided among the several carriers participating in the movement, that being a matter to be determined by the in- terested carriers for themselves. (See rulings 314 and 145.) 42. RATES ON RETURN MOVEMENTS.— A shipment of mining machinery M^ent to destination over the lines of one carrier and was subsequently returned for repairs over the lines of another carrier. The published tariff, to which all carriers participating in both movements were parties, provided for half rates on such return movements when over the same route as the original out-bound movement. A j^ortion of the route of the return movement was over the line of a caiTier which also formed a part of the through route over which the out-bound shipment moved : Held, That the regiilar tariff rate was properly applied on the return movement; that the return movement under through billing miLst be treated as a unit ; and that there could be no refund on the basis of the half rates for any portion of such through return movement. 43. EXTENSION OF TIME ON THROUGH PASSENGER TICKETS. — The ruling heretofore announced under this head to the effect that an extension of time on a tlirough ticket by a carrier whose line is a part of that route is binding on the lines of other carriers in the route, is now withdrawn. (Overruling ruling 23.) 44. LIMITATIONS OF PASSENGER TICKETS.— A pas- senger traveling on a round-trip ticket containing the provision that "This ticket will be good for return trip to starting point prior to midnight of date punched ])y selling agent in column 2. Final limit ; ' ' did not reach the last connecting carrier before the Conference Rulings. 635 date punched on the ticket. The passenger was recjuired to pay full fare on the last connecting line : Held, That a refund could not lawfully be made. 45. PASSENGERS ON FREIGHT TRAINS.— Upon in- quiry made by a carrier the Commission holds that it may not confine the right to travel on freight trains to a particular class, such as drummers and commercial agents, but if the privilege is permitted to one class of travelers it must l>e open to all others on equal tenns and conditions. 46. REPARATION ON INFORMAL PLEADINGS— PAS- SENGER TICKETS.— The rulings of the Commission relating to reparation on informal complaints do not extend to pas.senger traffic, but are limited to freight traffic only. The Commission will not entertain applications for authority to refund on pas- senger tickets on the ground that the fare was reduced shortly after the ticket was sold. (But see rulings 113, 247. 266, 277, and 385; see also Nonvalidation of Limited Excursion Tickets, 19 I. C. C, 442.) March 9, 1908. 47. TARIFF TAKING EFFECT ON SUNDAY.— Under a tariff schedule regularly filed, .showing a change in published rates, it happened that the thirty days' notice required by law expired on Sunday: Held, That the tariff is lawful. 48. MAY A SHIPPER OFFSET A CLAIM AGAINST A CARRIER BY DEDUCTION FROM FREIGHT CHARGES ON SHIPMENT?— (Restated in ruling 323.) 49. BENEFIT OF REPARATION ORDERS EXTENDS TO ALL LIKE SHIP]\IENTS.— (Restated in ruling 220fZ; also see ruling 200c.) 50. WHEN JOINT AGENT PUBLISHES A NEW RATE BETWEEN TWO POINTS, WITHOUT CANCELING THE OLD RATE DULY PUBLISHED BY ONE OF THE CAR- RIERS, THE OLD RATE ON THAT LINE REMAINS IN EFFECT. — The published tariffs of an interstate carrier named a rate of 20 cents on a given commodity between specified points. On, October 1, 1907, under a proper power of attorney, a joint agent of all carriers serving those two points published a rate 636 Conference Rulings. of 22 cen\",s. He failed to cancel the 20-cent rate and it was not formally canceled by the carrier that published it until Jan- uary 14, 1908 ; Held, That because of the failure of the joint agent and of the carrier that published it to cancel that rate in the manner required by section 6 of the act, and Rule 8 of Tariff Circular 14-A, the 20-cent rate remained the lawful rate of that carrier until formally canceled on January 14, 1908. See rul- ings 70, 101, 104, and 239. Rule 8 of Tariff Circular 14-A is now published as Rule 8 of Tariff Circularl8-A.) March 11, 1908. 51. THE USE OF PULLMAN CARS AT STOP-OVER POINTS CAN NOT BE LIMITED TO MEMBERS OF A PAR- TICULAR CLUB. — A carrier desiring to make excursion rates to a point where a convention is to be held wishes to accord to members of certain clubs the privilege of occupying the sleep- ing cars while the convention is in session : Held, That the car- rier may lawfully arrange an excursion rate to such point and return, the rate to include sleeping-car accommodations to and from that point with the privilege of occupying the car at that point during the convention ; but that the Commission does not understand that tlie carrier may limit the privilege to the mem- bers of any particular club. 52. RATE EASTBOUND CAN NOT BE APPLIED WEST- BOUND UNLESS SO PUBLISHED.— A mixed carload of meat eastbound was diverted at the Ohio River on account of a flood, and, by order of the shipper, was taken by a roundabout route to a point east of its destination and was thence hauled westbound to destination. The mixed-carload rate applied on eastbound shipments, but the tariffs provided no mixed-carload rate on westbound shipments : Held, That such interruption of the eastbound movement would not justify the application of a mixed-carload rate on the westbound movement to destination. 53. TRANSIT PRIVII;EGE NOT AVAILED OF CAN NOT BE RENEWED AFTER THE EXPIRATION OF THE TIME ALLOWED IN THE TARIFFS.— A consignor of sheep, which were being grazed in transit, was unable because of a severe snowstorm to get the sheep to tlie station before the grazing privilege expired according to the published time limit. Upon Conference Rulings. 637' inquiry of the carrier it was held that it can not lawfully take the sheep forward on the rates which would have been applicable under the tariff had the sheep been shipped within the time limit. March 16, 1908. 54. DEIMURRAGE ON INTERSTATE SHIPMENTS.— Questions of demurrage and car service on interstate shipments are within the jurisdiction of the Interstate Commerce Commis- sion, which does not concur in the view suggested by certain state conunissions that such matters, even when pertaining to interstate shipments, are within their control. (Reaffirmed by ruling 2236.) 55. FREE PASS TO RAILWAY EMPLOYEE ON LEAVE OP ABSENCE.— An employee who has not been suspended or dismissed from the service, but is on leave of absence and is still carried on the roll of employees of the carrier, is still an employee and as such may lawfully use free transportation. April 7, 1908. 56. HOURS-OP-SERVICE LAW— STREET-CAR COMPA- JvIIES. — Upon inquiry whether the hours-of-service law applies to electric street oar lines which are interstate carriers: Held, That it applies to all railroads subject to the provisions of the act to regulate conmaerce, as amended, including street rail- roads when engaged in interstate commerce. (See ruling 287.) 57. RESHIPPING RATE FROM PRIMARY GRAIN MAR- KETS. — ]\Iay a carrier lawfully cancel its local, reconsigning, proportional, and other rates, on outbound shipments of grain from a primary market like Kansas City, where no grain origi- nates upon which the local rate would be applicable, and sul)- stitute for them a reshipping rate applicable on all outbound grain ? Responding to the inquiry the Commission approved the sug- gestion, but declines in advance to express approval of such Note. — This ruling was made by tlie Commission on March 16, 1908; by the amendatory act of April 13, 1908, carriers w'ere given the right to give free transportation to "furloughed, pensioned, and superan- nuated employees." 638 Conference Eulings. reshipping rate when it makes less than the published rate from an intermediate point. 58. DECLARING A FALSE VALUATION IN VIOLA- TION OF SECTION 10.— Upon an inquiry from a banking hoiLse whether it may lawfully declare a value of .^5,000 upon i* package of negotiable bonds of the market value of $10,000 and pay the express charges on the basis of the declared value, upon the understanding that in ease of the loss of the bonds the ex- press company will be responsible only for the amount so de- ,clared, it was held that a shipper falsely declaring the value of a package delivered to an express company for transportation (Violates section 10 of the act. (See ruling 295 and compare rul- ing 188; see also Express Bates, Practices, Accounts, and Rev- enues, 43 I. C. C, 510.) 59. CARRIERS MUST SEND CAR THROUGH OR TRANS- FER SHIPMENT EN ROUTE.— Where connecting lines have united in publisliing a joint through rate between two points it is the sense of the Commission that it is the duty of the carriers in the route to provide the car and permit it to go through to destination or to transfer the property en route to another car at their own by rulings 92 and 95c, 60. NO REFUND TO PASSENGER WHO EXCEEDED STOP-OVER LII\IIT.— A passenger, while availing himself of a stop-over privilege at a certain point in his journey, was sub- poenaed as a witness in a proceeding in a civil court, and obey- ing the process was not able to proceed on his journey within the time limit of the stop-over. As a result he was compelled to pay an additional fare from that point to destination: Held, That a refund coidd not lawfully be made. 61. STORAGE CHARGES ON TRUNK ACCRUING BE- CAUSE OF INJURY TO PASSENGER— The Pullman car in which a passenger was traveling was derailed and went over an embankment, resulting in an injury to a passenger, who in con- sequence was detained for some time. His tiimk was taken oi\ to destination arid storage charges accrued on it until claimed by him. Held, That the storage charges might lawfully be re- funded. Conference Rulings. 639 April 14, 1908. 62. BOATS THAT ARE NOT COMMON CARRIERS.— Cer- tain, carriers have been in the habit of advancing the charges of sailing vessels, boats, and barges bringing vegetables to their ter- jninals to be forwarded to interstate destinations, and of enter- ing the amount on waybills as charges in addition to their tariff rates. Upon inquiry whether the carriers may lawfully con- tinue this practice it was held that if the boats ii.re common car- riers, making regular trips and ofPering their services to the general public, they must file tariffs and the practice must be discontinued until they do so. (See ruling 428; also ruling 444.) 63. SERVANTS MAY NOT USE FREE PASSES.— (Amended by rulings 92 and 95c.) 64. ABSORPTION OP SWITCHING CHARGES.— The .tariff of a carrier provided for the absorption of switching charges. Upon inquiry it was agreed that the Commission could not sanction a practice under which switching charges are paid by the consignee, the carrier deducting the amount of the switch- ing charges from the published rates and collecting the balance from the consignee. In all cases the carrier must collect the full tariff rates. Where its tariffs provide for absorptions of switching charges the carrier must pay the switching company for its services and not leave that to be done by the shipper. 65. SPECIAL RATES FOR UNITED STATES, STATE, OR MUNICIPAL GOVERNMENTS.— (Overruled and with- drawn by ruling 244; also see ruling 208c.) May 4, 1908. 66. JOINT RATES BETWEEN A WATER AND A RAIL CARRIER SUBJECTS THE FORMER TO THE PROVI- SIONS OF THE ACT.— A steamboat line agreed upon joint rates with a rail line for certain passenger and freight traffic : Held, That it could not unite with a railroad company in mak- ing a through route and joint rate on a particular traffic with- out subjecting all its interstate traffic to the provisions of the law and to the jurisdiction of the Commission. 640 Conference Rulings. In the Matter of J urudiction Over Water Carriers, 15 I. C. C, 205, the Commission held that carriers of interstate com- merce by water are subject to the act to regulate commerce only in respect of traffic transported under a common control, man- agement, or arrangement with a rail carrier, and in respect of traffic not so transported they are exempt from is provisions, (See rulings 155, 201, 354, 401, and 422; alsoKansas City Mis- souri River Navigation Co. v. C. d' 0. By. Co., ,34 I. C. C, 67.) 67. HANDHOLDS— SAFETY-APPLIANCE LAW.— The law makes no distinction between passenger and freight cars, and handholds must, therefore, be placed on the ends of passenger cars and cabooses. 68. ADJUSTMENT OF CLAIMS.— (Restated in ruling 236; also see ruling 462.) 69. ERROR BY TICKET AGENT.— A station agent inad- vertently failed to indorse "colonist ticket" on a regular ticket sold upon a published colonist rate : Held, That the connecting carriers must be paid their full proportion of the first-class rate, but that the Commission would not intervene between the initial carrier and its agent. (Reaffirmed by ruling 277 ; see also rul- ing 105.) May 5, 1908. 70. EFFECT OF A FAILURE IN A NEW TARIFF NAM- ING HIGHER RATES TO CANCEL THE SAME RATES IN PRIOR TARIFF.— A carrier's tariff, eflective January 1, 1903, named certain rates between two points. By a joint tariff, effective February 1, 1908, higher rates were named between the same points, but without reference to the previous tariffs or cancellation of the lower rates therein. On I\larch 26, 1908, a supplement was filed, naming the same higher rates and canceling the rates named in the tariff of January 1, 1903 : Held, That until March 26, 1908, when the original rates were canceled, they remained in effect and were the lawful rates. (See rulings 50, 101, and 104; compare ruling 239.) 71. DIFFERENT FARES TO DIFFERENT SOCITIES UNLAWFUL. — A tariff covering daily picnic excursions be- tween certain points for the season named fares for Sunday and Conference Rulings. 641 day schools and different fares for "societies:" Held, That the tariff is discriminatory and that the fares for the school picnic should be the same as for society picnics. (See ruling 99.) 72. RECONSIGNMENT PRIVILEGES AND RULES.— (a) Usually the combination, of intermediate rates is higher than the through rate. Frequently a shipper desires to forward a shipment to a certain point and have the privilege of changing the destination or consignee while shipment is in transit, or after it arrives at destination to which originality consigned, and to forward it under the through rate from point of origin to final destination. ]\Iany carriers grant such privilege and generally make a charge therefor. (b) The privilege is of value to the shipper, and in order to avoid discrimination it is necessary for carrier that grants such privilege to publish in its tariff that fact, together with the con- ditions under which it may be used and the charge that will be made therefor. Such rules should be stated in terms that are not open to misconstruction. (c) Some carriers do not count a change of consignee which does not involve a change of destination as a reconsignment, while others do consider it a reconsignment and charge for it as such. The commission holds the view that without specific qualifications the term "reconsignment" includes changes in destination, routing or consignee. If carrier wishes to distin- guish between such, changes in its privileges or charges it must so specify in its tariff rules. Reconsignment rules and charges must be reasonable, and a charge that would be reasonable for a diversion or change of destination might be unreasonable when applied to a simple change in consignee ^A'hich did not involve change in destination or more expensive delivery. (This ride is the same as rule 74 of Tariff Circular 18-A. See Beekman Lum- ber Co. V. K. G. Ry. Co., 17 I. C. C, 87; Dorau d- Co. v. N. C. St. L. Bij., 'S3 1. C. C, 527 ; and Aiwood & Co. v. C, B. & Q. R. R. Co., 42 I. C. C, 386.) 73. EFFECTIVE DATE OF TARIFF FILED BY A CAR- m interstate transportation, failed to note an effective date on its carrier, under its arrangements for the first time to participate RIER WHEN FIRST COMING UNDER THE LAW.— A 642 Conference Rulings. first tariff seliediile : Held, Tliat heing tliat carrier's first tariff it became effentive as soon as filed. (See rulings 12 and 1006.) 74. HOURS-OP-SERVICE LAW.— Employees deadheading on passengers trains or on freight trains and not required to perform, and not held responsible for the performance of, any service or duty in connection with the movement of the train upon which they are deadheading, are not while so deadheading "on duty" as that phrase is used in the act regulating the hours of labor. (See ruling 2876.) May 12,1908. 75. VALIDATION OF TICKETS.— The condition that a roundtrip passenger ticket shall be validated for the original purchaser by carrier's agent at a given point is one of the con- ditions which affects the value of the service rendered the passenger and one of the conditions that must be observed the same as the rate under which the ticket is sold, which miist therefore be stated in the tariff under which it is sold. The tariff may provide for validation at numerous points, and it may provide for validation at any point intermediate to the original destination named in the ticket. The condition stated upon the ticket should not conflict with the tariff provisions, but if in any case there should inadvertently be conflict between the tariff provisions and the conditions stated on the ticket the tariff rule must govern. (See rulings 125 an,d 167.) 76. REDEMPTION OF PASSENGER TICKETS.— The un- used portion of a passenger ticket, when presented by the original holder to the carrier that issued it, may lawfully be redeemed by the carrier by paying to the holder the difference between the value of the transportation furnished on the ticket at the full tariff rates and the amount originally paid for the ticket. (See rulings 115, 228, 238, 265, and 303.) May 14, 1908. 77. TRANSIT PRIVILEGES NOT RETROACTIVE.— Ruling 6, providing that the benefit of reconsignment privileges can not be given retroactive effect, is held to include cleaning, milling, Conference Rulings. 643 concentration, and other transit privileges. (See ruling 166; also Henry v. Eastern By. Co., 20 I. C. C, 172.) June 1, 1908. 78. GRAIN DOORS.— (a) A carrier may not lawfully reim- burse shippers for the expense incurred in attaching grain doors to box cars unless expressly so provided in its tariff. There is a material difference between the furnishing of ser\ace or facilities to carriers by one who is not a shipper and the furnish- ing of the same facilities or services by one who is a shipper. (See rulings 19, 292, and 360.) (b) The Commission now decides that its ruling above and the requirements of the law thereunder will, for the present at least, be satisfied if the carriers that propose to pay shippers for grain doors furnished by such shippers pro\4de in their tariffs that where grain doors are necessary and are furnished by the shipper the carriers will pay the actual cost of such doors, with stated maximum allowances per grain door and per car. (Af- firmed by ruling 267.) (c) Such maximum allowances per door and per car must be reasonable, and where carrier pays for such doors on the basis of actual cost certified statement from shipper, verified, as to the number of doors furnished and the cars for which furnished, by carrier's agent, should in every instance be required. (Re- affirmed by ruling 267 ; see ruling 132 ; also Loomis v. L. V. B. B. Co., 240 U. S., 43 National Lumber Ass'n v A. C. L. B. B. Co., 14 I. C. C, 154; and N. Y. Shippers Ass'n v. N. Y. C. & H. B. B. B. Co., 30 I. C. C, 437.) June 2, 1908. 79. "PRIVATE SIDE TRACKS" AND ''PRIVATE CARS" DEFINED.— (a) (Modified and restated in ruling 121.) (b) A private car is defined in the opinion as "a car owned and used by an individual, firm, or corporation for the trans- ^portation of the commodities which they produce or in which they deal." It will include also cars owned and leased to shippers by private corporations. (Qualified by ruling 122; also see ruling 128.) 644 Conference Rulings, (c) The ruling as to demurrage charges on private tank cars is applicable to all other private cars used by the railroads and paid for on a mileage basis. (See ruling 222.) (d) It is not the intention of the Commission that its ruling shall be given a retroactive effect. The demurrage question has been in a state of great confusion, and the desire of the Com- mission is to establish a uniform, fair, and practicable system for the future. Claims for refund of demurrage charges pre- viously collected in accordance with regular tariff rules will not be entertained with favor. (See rulings 123, 128, 222, and note to ruling 242; see also Rule 75 of Tariff Circular 18-A.) June 9, 1908. 80. SHIPMENT THAT MOVED IN UNDER A FORMER TARIFF DOES NOT LOSE THE BENEFIT OF TRANSIT PRIVILEGES CANCELED PENDING THE OUT MOVE MENT. — A tariff enabled shippers to concentrate commodities on local rates at a certain point for shipment within a named period in carload lots, the in-bound billing to be surrendered and through rates from point of original shipment to apply. Before the period for taking advantage of this privilege had ^expired a new tariff made a new arrangement : Held, That with respect to shipments that had moved to the concentrating point under the old tariff and which moved out within the period therein allowed, the old rate should apply. (See I shell -Br own Co. V. G. T. W. Ry. Co., U. R. Op. A-908.) 81. SUPPLEMENTING MILEAGE BOOKS BY PAYING REGULAR LOCAL IMILEAGE RATES.— The practice under a published tariff rule which permits the holder of a mileage book which does not contain enough coupons to enable him to complete his journey to pay for the balance of the journey at the regular local rate per mile, as published by the carrier, is not un- lawful. (See ruling 382.) 82. CHARTERING TRAINS.— It is not unlawful for a rail- road company to publish a tariff under which a locomotive and train of cars may be chartered at a named rate, tickets for the journey on that train to be sold by the person chartering the train. Conference Bulings. G45 83. BLOCKADE BY FLOOD.— A carrier accepted a car- load shipment for movement to a point beyond its line. After delivering the shipment to a connection at a junction point it was advised that the connecting line had been closed by floods. The initial carrier accepted the return of the car from that line and ordered it forward to destination via another route carrvang higher rates, taking this action without instructions from the shipper: Held, That the initial line was responsible to the shipper for the resulting increa.se in the transportation charges. (See rulings 146, 147,and 213-a; also Woodward & Dickerson v, L. & N. B. R. Co., 15 I. C. C. 173; Wcyl-Zul-crman & Co. v. C. M. Ry. Co., 27 I. C. C. 495; and Morse Lumber Co. v. L. d- N. R. R. Co., 33 I. C. C. 572.) 84. A COMMODITY RATE TAKES THE COMIMODITY OUT OF THE CLASSIFICATION.— A carrier having a high class rate on furniture with a low minimum also had a lower commodity rate with a higher minimum. In response to an in- quiry whether they are privileged to use either rate as they desire : Held, That the only purpose of making a commodity rate is to take the conniiodity out of the classification. The commodity rate is, therefore, as stated in Rule 7, Tariff Circular 15-A, the lawful rate. And if the carrier does not desire to apply it on all shipments it must be canceled. (See also Rule 7 of Tariff Circular 18-A.) 85. SUBSTITUTING TONNAGE AT TRANSIT POINTS.— (Restated in Ruling 203.) 86. POSTING TARIFFS AT STATIONS.— Under the order of the Commission of June 2, 1908, entitled "In the Matter of Modification of the Provision of Section Six of the Act with Regard to Posting Tariffs at Stations," if a subsidiary or small connecting line has authorized the parent company, or principal connecting line, to publish and file for it all of its tariffs, tariffs so issued and tiled on its behalf will be included in tlie complete public tariff files of the parent or issuing line, and it will not be necessary for such subsidiary or small line to maintain an ad- ditional complete public file. (See also ruling 289.) The order above mentioned was in effect superseded by an order of October 12, 1915, relating to the same matter. G46 Conference Rulings. 87. TRANSPORTATION FOR EATING HOUSES OPER- ATED BY OR FOR CARRIERS.— Carriers subject to the act may provide at points on their lines eating houses for passengers and employees of such carriers, and property for use of such eating houses may properly be regarded as necessary and in- tended for the use of such carriers in the conduct of their business. Such eating houses, however, must not serve the general public, or any portion thereof, with food prepared from commodities which have been carried at less than the full pub- lished rate, and no utensils, fuel, or servants at all employed in serving others than passengers and employees of the carrier as such should be carried at less than tariff rates. Such pri- ileges as may be extended under this rule shall be applied on)y as to points local to the line on which the eating house is situated. ( Compare ruling 124 ; and see ruling 340. ) 88. HOURS-OF-SERVICE LAW.— (a) The specific proviso of the law in regard to hours of service is: "That no operator, train dispatcher, or other employee who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pretaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four hour period in all towers, offices, places, and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime, except in case of emergency, when the em- ployees named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four hour period or not exceeding three days in any week." These provisions apply to employees in towers, offices, places, and stations, and do not include train employees who, by the terms of the law, are permitted to be or remain on duty sixteen hours consecutively or sixteen hours in the aggregate in any twenty -four hour period, and who may occasionally use telegraph cr telephone instruments for the receipt or transmission of orders affecting the movement of trains. (See ruling 287.) The commission decided in conference on April 9, 1917, to rescind paragraph (b) of this ruling, because the question upon Conference Rulings. 647 which it was made has since been judicially interpreted and is now pending in the courts upon appeal. June 29, 1908. 89. JURISDICTION OF ACT OVER LOCAL BELT OR SWITCHING LINES.— The question is asked, "Is a belt line owned by a municipality, which participates in interstate move- ments, subject to the jurisdiction of the act and of the Com- mission?" Held, That it is subject to such jurisdiction. ( Com- pare ruling 162.) 90. MISROUTING VIA LINE THAT HAS NO TARIFF ON FILE. — A shipment was misrouted and passed over a route via a part of which no rate was filed with the Commission, and was thus subjected to a higher charge than the through rate via the proper route : Held, That misrouting carrier may be au- thorized to make refund on account of its error in misrouting shipment, and that can:'ier which jiarticipated in the trans- portation without lawful tariff applicable thereto should be dealt with through the Division of Prosecutions. (See ruling 93.) 91. A MUCH LONGER AND MORE INDIRECT ROUTE NOT A REASONABLE ROUTE.— A shipment was tendered destined to a certain point, the direct route to which was over the lines of two carriers, a distance of 358 miles, the rate via that route being 22 cents. It was possible to send the shipment around over the lines of three carriers, a distance of 617 miles, and secure a combination rate of only 19 cents. Application for refund was made on account of the difference between the rates: Held, That the claim for refund should be denied on the ground that the much longer and indirect route is not a reasonable route. (See ruling 214; also B. B. Homer Lumber Co. V. 8. A. L. By., U. R. Op. A-351.) 92. USE OF PASSES BY SERVANTS.— Opinion expressed on April 14, 1908, on the subject of use of passes by servants, is modified: Held, That a household servant when traveling with a member of the family entitled to a pass is included witliin the term "family" as used in the act. (Amending ruling 63 ; see also ruling 95c.) 648 Conference Rulings. June 30, 1908. 93. MISROUTING INVOLVING CARRIERS NOT SUB- JECT TO THE ACT. — A shipment was tendered to a carrier in North Carolina, destined to California. Shipper requested that it be sent via New York and the Isthmus of Panama. Shipment M'^as forwarded all rail under a rate alleged to be higher than would have applied via the route indicated: Held, That the Commission can not authorize refund because no tariffs are on file with the Commission via route w^hich the shipper directed the shipment moved, and there is therefore no official measure of the accuracy of the claim for overcharge or the amount thereof. (See rulings 90 and 214.) 94. LEASING CARRIER'S PROPERTY IN CONSIDERA- TION OP LESSEE'S SHIPMENTS.— A carrier leases a part of its property to a certain industry under a contract which contains the obligation on part of the lessee industry to make all of its shipments by the line of the lessor carrier. Such a provision plainly implies that the traffic so furnished by the lessee and so secured by the lessor is an important and substantial consideration which might amount to a concession in the rates for transportation, and therefore, be an unlawful device or dis- crimination. The Commission expressed doubt as to the pro- priety of the practice. (See rulings 325 and 421.) 95. NOTICE AS TO THE ISSUANCE OF PASSES.— It ap- pearing that the ruling is-sued by the Coimmission on the 9th day of June, A. D. 1908, relative to the issuance and use of passes, should be modified in certain respects relating to the forms of passes to persons eligible to receive free transportation under the act to regulate commerce, it is ordered that said ruling shall be amended to read as follows : (a) Many abuses in the issuance and uses of passess have been discovered by the Commission which it is desired to correct, and to this end, and because of the misinterpretation of the law by carriers generally, the Commission at this time makes announce- ment that it will recommend the indictment and prosecution of all carriers and persons issuing passes to, or allowing the use of pa.sses by, any persons not included within the designated classes to whom free transportation may be given by carriers subject Conference Rulings. 649 to the act to regulate commerce as set forth in said act. Among those not included under the provisions referred to are the following : 1. Officers or employees of news companies other than newsboys. (See Transportation of Newspaper Employees, 12 I, C. C, 15.) 2. Officers or employeess of Telegraph or Telephone companies, excepting when jiersonally engaged in operation, extension, repair, or inspection of lines upon or along the railroad right of way and used in connection with the operation of The railroad. The amendatory act of June 18, 1910, brings Telephone and Telegraph companies within the jurisdiction of the Commission; see ruling 305; see also rulings 161 and 219.) 3. Officers or employees of surety, transfer, and baggage com- panies, except baggage agents. (See ruling 216, also U. S. V. Erie B. R., 236 U. S. 259.) 4. Officers or employees of carriers not subject to the act to regulate commerce, including officers and agents of steam- ship and stage lines not subject thereto. (See ruling 196; also 95c and 475.) 5. Officers or employees of sulisidiary corporations engaged in business other than transportation subject to the act to regulate commerce, save that such officers and employees may be granted free transportation when attending to business imposed upon a carrier subject to the act. (See rulings 169, 208, and 263.) 6. Families of local attorneys, surgeons, and ethers who are not regularly employed by carriers. (See ruling 208a..) (b) Each pass issued must bear upon its face the name of some person belonging to a class named in section 1 of the act as eligible to receive free transportation. In addition to such person so named a pass may also carry not to exceed a specified number of unnamed persons of any class eligible to receive free transportation ; the number and the class to which such person belongs being specified upon the face of the pass — that is to 650 Conference Rulings. say, passes in the following forms will be recognized by tho Commission as legal : "Pass John Smith, President, car, and five officers and em- ployees of the Z. Y. & Z. Railway." "Pass J. R. Earner and six linemen, foreman, and force of the Western Union Telegraph Company. Good only when traveling in connection with the construction, maintenance, or operation of the lines of the Western Union Telegraph Company on the right of way of this A. B. C. Railway." ' ' Pass one extra messenger of the Southern Express Company when presented with letter signed by Superintendent, Assistant Superintend, or Route Agent of said Express Company, authorizing use and giving name of person to be passed. ' ' "Pass John Smith, section foreman, and six emplovees of X. Y.| & Z. Railway." (c) The Commission holds the the word "family," as used in section 1 of the act to regulate commerce, includes those who are members of, and w^ho habitually reside in, the household of the person eligible to receive family passes, including household servants when traveling wnth the family or with any member thereof, and relatives who are in fact dependent upon such person although not actually residing in his household. (See rulings 92, 174, and 417.) The Commission will, therefore, view passes in the following form as lawful : "Pass John Smith, wife, two sons, three daughters, and two servants. ' ' "Pass Mrs. John Smith and daughter, account John Smith. Agent X. Y. & Z. Railroad Company at Washington, D. C." (d) The name of the person presenting the pass must appear upon it. Passes intended to be used in the absence of the head of the family whose occupation makes the issuance of passes lawful must, in addition to the name of said head, show the name of the person using the same. (See ruling 290.) For in- stance, a pass to be used hy John Smith, his wife, or his daughter, separately, should read: "Pass John Smith, Mrs. John Smith, and ]\Iiss Mary Smith, account C. & 0. Agent at Richmond, Va." . Conference Rulings. 651 (e) Every pass to an officer or employee of a carrier other than the one issuing the pass, shall indicate the name and rank of the person to, or on behalf of whom, such pass is issued, as well as the name of the carrier employing him. (f ) The Commission construes the act, so far as it relates to railway-mail service employees, as giving such employees the right to receive free transportation when on duty in their cars, or when traveling under orders from a superior officer. The Com- mission does not now undertake to say how far this portion of the act to regulate commerce is modified or controlled as regards railway-mail service employees by other statutes or by contracts between carriers and the Post Office Department. (See ruling 377.) (g) The Commission will recognize any rail or water carrier filing a tariff, joint or local, with the Commission, as a carrier subject to the act so far as the issuance of passes to its officers and employees may be concerned. Where a carrier has no tariffs, on file with the Commission, and does not acknowledge itself subject to the Commission's jurisdiction, the Commission will re- gard the issuance of passes to its officers or employees as un- lawful, without, however, thereby passing upon the question of the jurisdiction of the act over such carrier in so far as it may be necessary to assert such jurisdiction. In this regard reference is made to Cosmopolitan Shipping Co, v. Ilamhurg- American Packet Co., 13 I. C. C, 266, and In re petition Frank Parmelee Co., 12 I. C. C, 39. By reference to those decisions it will be seen that among the carriers not subject to the act are ocean carriers to nonadjacent foreign countries and domestic carriers by wagon, stage, or automobile. Carriers covered by these decisions are not eligible to file tariffs or receive passes. (See rulings 196, 216, 263, 355, and 475.) (/(.) The Commission reaffirms Rvile 63 of Tariff' Circular 15-A, Now reported as ruling 208 of this bulletin, (i) The Commission can not undertake, in any case, to deter- mine whether or not individuals are within any of the classes mentioned in section 1 of the act as eligible to receive free transportation. (j) The Commission will not regard as unlawful allowance of use, or the use of passes merely irregular in form, under 652 Conference Rulings. tliis ruling:, during the present calendar year. Passes, however, issued to persons not eligible to receive the same must be called in at once, as well as passes so loosely framed that persons not eli- gible to receive free transportation may be carried upon them — that is to say, a pass to "John Smith, family, and household ser- vants," although irregular in form, will not be regarded by the Commission as unlawful prior to January 1, 1909. A pass, however, to "John Smith, car, and party," being susceptible of use for the transportation of persons not within the act, should be immediately corrected. (k) Carriers are enjoined against the destruction of records or memoranda touching the issuance of passes, and the passes, themselves, coming into the hands of the carriers after use, must, until further order of the Commission, be retained for a period of not less than five years. (See Commission's Re- gulations to Govern Destruction of Records of Steam Roads Effective July 1, 1914, and Regulations to Govern Forms and Recording Passes, Effective Jan. 1, 1917.) October 12, 1908. 96. DEMURRAGE ON F. 0. B. SHIP:\rENTS.— A pur- chased a carload of lumber f. o. b. at the milling point. De- murrage accrued on account of the failure of B, the mill owner, to promptl}' load the car. Carrier inadvertently delivered the car to A without collecting the demurrage. Upon its incpiiry as to whether to demand the demurrage from A or B : Held, That the demurrage must be collected by the carrier either from the vendor or the vendee, but that the Commission can not undertake to investigate the facts and determine for the carrier whether the vendor or the vendee is liable for the charges. (See note to ruling 242; also Crescent Coal d- Min- ing Co. V. B. & 0. B. B. Co., 23 I. C. C. 83.) 97. COLLECTION BY CARRIER OF L. C. L. SHIP. MENTS. — The Commission condeins as unlawful a practice under which a carrier provides an empty car at factory sidings, in which the shipper may load L. C. L. shipments which the carrier then moves to its regular freight station where the shipments are assorted and placed in other cars to be forwarded Conference Rulings. 653 to their respective destinations. Sueh practices lawful only under definite and clear tariff authority, nondiscriminatory in terms and in its application. (See Trap or Ferry Car Service Charges, 34 I. C. C, 521.) 98. LOCAL BILLING TO AVOID HIGHER THROUGH RATE. — A lawful through rate existed between two points, applicable over two routes, one of which was directed, and there- fore not ordinarily used by the carrier for through movements. The shipper billed locally to a point on the latter route, and rebilled to destination without taking either constructive or actual possession of the shipment at the local point, but making his rebilling arrangements with the agent of the carrier at a distant point. Upon arrival of the shipment at destination, the carrier collected the balance of the through rate : Held, That the local billing was not in good faith, but was a device between the shipper and the carrier's agents to avoid the higher through rate by having the carrier's agents act as the forwarding agent of the shipper ; therefore the through rate is only rate lawfully applicable. Affirmed in Ruling 337. (See also rulings 24 and 365; also In re Wharfage Facilities at Pensacola, Fla., 27 I. C. C, 258; Doran & Co. v. N, C. & St. L. By., 33 I. C. C, 527; and Kanotex Refining Co. v. A., T. & S. F. By. Co., 34 I. C. C, 271.) 99. REGULATIONS GOVERNING COMMUTATION TICKETS MUST NOT DISCRIMINATE AS BETWEEN CLASSES OP PERSONS.— (a) A Carrier offers a 46-trip monthly commutation ticket and provides that it shall be issued only to pupils, without regard to age, who are in attendance on schools of a certain kind or class, and specifically provides for the exclusion of pupils attending various other kinds of schools: Held, That this regulation is unjustly discriminatory, and therefore unlawful, but that carrier may lawfully offer and use a conmmtation ticket limited in its sale and use to children or young persons between certain stated ages (as, for instance, from 12 to 21 years of age). (b) Such arrangement will provide desired rates for school pupils and will not exclude other children traveling under substantially similar circumstances but for the purpose of 654 Conference Rulings. securing other lines of instruction or on other missions. It will also protect against the use of such ticket by adults. The car- rier may not inquire into the mission, errand, or business of the passenger as a condition of fixing the transportation rate which such passenger shall pay. (See ruling 71; also Com- mutation tickets to School Children, 17 I. C. C, 144.) 100. EFFECTIVE DATE OF TARIFF THAT WAS USED BEFORE AUGUST 28, 1906, BUT WAS NOT FILED UNTIL AFTER THAT DATE.— (a) Prior to the effective date of the amended act some carriers used the car-service rules of car-service associations under which to assess demurrage and other terminal charges, but did not file those rules with the Com- mission until after the amended act became effective. Such publications bore effective dates antedating their filing, but indicated no specific date subsequent to the date of filing upon which the schedule should become effective. The question is raised as to whether such publications so filed became effective on date of filing or thirty days subsequently thereto : Held, That prior to August 28, 1906, as well as subsequent to that date, the law required carriers amenable to its provision to file with the Commission and post to the public schedules con- taining their terminal charges "and any rules or regulations which in any wise change, affect, or determine any part or the aggregates" of their rates, fares, and charges. The amended act prohibits carrier from engaging, or participating in trans- portation of passengers or property, as defined in the act, un- less the rates, fares, and charges upon w^hich the same are transported have been filed and published in accordance with the provisions of the act. (b) The Commission has decided that, excepting the first tariff under which a carrier engages in interstate transportation, a tariff that is filed without naming date on which it is to take effect is unlawful and never becomes effective, and now decides that publications that were used prior to the effective date of the amended act, that w'ere filed subsequent to that date and which bore effective date antedating the date of filing thereof, became effective thirty days subsequent to the date of filing the same. (See rulings 12 and 73.) Conference Rulings. ^ 655 101. CANCELLATIONS IN TARIFFS MUST BE SPECI- FIC AND COMPLETE.— Carrier's tariff contains certain rates. Joint agent's tariff canceled certain of those rates, but the carrier did not issue any corresponding amendment to its tariff, as is required by Rule 8, Tariff Circular 15-A. It is essential that when one tariff cancels a part of another tariff, specific reference to the tariff so affected and to the part there- of so canceled shall be given, and that, effective on the same date, supplement to the tariff so canceled in part shall show that the specific parts are canceled by, and that the rates will there- after be found in tariff, I. C. C. No. . In no other way can discriminations and complaints be avoided. The car- rier knows that such parts of its tariff are to be canceled and that superseding rates are to l)e shown in another tariff. There is, therefore, no difficulty about arranging its supplement and furnishing it to the proper party to be filed with the issue that contains the superseding rates. (See rulings 50, 70, 104, and 239; Rule 8, Tariff Circular 15-A, amended accordingly; see Rule 8 of Tariff Circulars 17-A and 18-A.) October 13, 1908. 102. FREE PASSES TO EX-EMPLOYEES.— Under the recent amendment to the antipass provision of section 1 : Held, That a pass may be issued to a bona fide ex-employee of any carrier subject to the act, who is traveling for the purpose of entering the service of any such common carrier, whether such service has or has not previously been arranged for. (See ruling 158.) Octoher 16, 1908. 103. FREE PASSES TO FAMILIES OF EMPLOYEES.— Upon an inquiry involving an interpretation of the recent amendment to the antipass provision of section 1, providing that free transportation may be given to the families of employees killed in the service of common carriers : Held, that the pro- vision does not include the families of employees who died a natural death while in the service of common carriers. (See rulings 188, 173, 193, and 476.) 656 Conference Rulings. 104. CONFLICT IN PASSENGER TARIFFS.— Certain fares of a carrier had been published in a joint agent's tariff and also in its own tariff. The carrier issued a new tariff canceling the fares in its own tariff, but did not secure their cancellation in the joint agent's tariff: II dd, That the new tariff was unlawful because in conflict with the uncanceled tariff of the joint agent. (See rulings 50, 70, 101, and 239; also Stilwell v. L. & N. R. Rxj. Co., 19 I. C. C. 405.) 105. PASSENGER TICKET HONORED BY WRONG LINE. — A coupon reading over one line was honored through error by the conductor of another line running between the same points, and the latter called upon its conductor to make good the amount: Held, That the matter was one of discipline between the company and its conductor, and was not cognizable by the Commission. (See rulings 69 and 277.) 106. TARIFFS FOR THE TRANSPORTATION OF EX- PLOSIVES. — Under a special act of Congress the Commission prescribed certain regulations governing the transportation of explosives. Such regulations are law to the carriers as well as to the shippers, and they can not be changed except by act of Congress or by this Commission. It is therefore not con- sidered necessary for each carrier to file with the Commission copy of such regulations as a tariff issue, but it is considered necessary that each tariff which contains rates for the trans- portation of explosives shall also contain notice that such rates are applicable in connection and in compliance with the regu- lations fixed by the Interstate Commerce Conunission. This provision must be in every such tariff issued hereafter, and must l)e incorporated in existing tariffs by reissue or supple- ment as early as practicable. If tariff is governed by classification it will be sufficient to include the notice in the classification referred to as governing the tariff. (Rule 4, Tariff' Circular 15-A; amended accordingly; see also Rule 665 of Tariff Circular 18-A; also see ruling 388.) Conference Rulings. 657 November 10, 1908. 107. REDUCED FARES FOR THE DEPORTATION OF CHINESE NOT PERMISSIBLE.— Special fares can not law- fully be accorded by carriers for the transportation of Chinese to the ports for deportation, even thougli the expense is paid by the Government. Provision for the subsistence and care in tran.sit of Chinese being deported are matters of contract between the carrier and the Government, and need not be published in the tariffs. 108. HOURS-OF-SERVICE LAW— FERRY EMPLOY- EES. — The hours-of-serviee law does not apply to employees on a ferry, even tliough the ferry be owned by a railroad company. The law applies to employees connected with the movement of trains, and hence does not embrace employees engaged only in the operation of a ferry. This i-uling does not apply to car ferries. (See ruling 287.) 109. TRANSPORTATION OF HOUSEHOLD GOODS OF AN EX-EMPLOYEE. — A carrier gave free transportation to an employee and his household effects to the point where he was to be employed, and later dismissed him: Held, That the Commis- sion can not require the carrier to return the household effects free of charge to the point from which they were first moved. (Reaffirmed by ruling 255; .see also ruling 2085.) 110. REPAYMENT BY CARRIER ON ACCOUNT OF SWITCH TRACK.— A shipper in 1895 paid $200 to a carrier as part of the cost of constructing a spur track to its warehouse. Upon application of the carrier for permission to repay the amount to the shipper: Held, That the repayment would be un- lawful unless the shipper had some equity or ownership in the track which he could transfer to the carrier in consideration of the payment. (See ruling 512.) November 12, 1908. 111. CHANGE OF RATE WHILE SHIPMENT WAS ON THE OCEAN. — A shipment of linoleum left Hamburg on July 658 Conference Rulings. 4, at which time there was in effect a published tlirongh rate to San Francisco via New Orleans of $1.10. When the ship- ment reached New Orleans the through rate had been canceled, leaving in effect a local rate from New Orleans to San Francisco of 90 cents. Upon application for permission to refund down to the $1.10 through rate: Held, That the application must be denied. (See Borgfeldt & Co. v. Southern Pacific Co., 18 I. C. C, 553.) 112. CARETAKERS FOR BEES IN HIVES.— Upon in- quiry from a classification commitee it was agreed that tariffs may lawfully provide for free transportation of caretakers of bees in hives. 113. ERRORS OF CARRIER'S AGENTS.— Agents of car- riers sometimes misroute passengers or by other error cause pas- sengers to pay additional and unnecessary transportation charges. In the view of the Commission such cases are gov- erned by the principles announced in Rule 70, Tariff Circular 15-A. (Reaffirmed by ruling 167; see also ruling 247, 266, and 277. Rule 70 of Tariff' Circular 15-A is now published as rul- ing 214 of this Bulletin ; also see L. d- N. R. R. v. Maxwell, 237 U. S., 94.) 114. RECONSIGNMENT OF REFUSED SHIPMENTS.— It appears that in some instances carriers are willing to recon- sign refused shipments to poin.ts beyond the first destination and to apply the tariff rate from point of origin to final destination, even though it be lower than the rate to first destination, but they do not feel at liberty to do so in view of paragraph 2 of Rule 78, Tariff Circular 15-A. It is optional with the car- rier whether or not it will grant reconsigning privilege. If granted, the conditions governing it must be in tariff, and if charges for back haul or out-of-line haul are to lie assessed, rule must so state. It is of course understood that satisfactory showing of genu- ine transaction and actual refusal by consignee will be required. (Rule 78, Tariff Circular 15-A, amended accordingly ; now pub- lished as Rule 67 of Tariff Circular 18-A ; see rulings 41 and 114.) Conference Rulings. 659 115. REDEMPTION OP UNUSED PASSENGER TICK- ETS. — Because of illness or other compelling reason a passenger sometimes abandons a trip short of destination to which fare has been paid, or returns from a point short of that to which he has purchased a round-trip ticket. On the question of the right of the carrier to refund fare in such a case the Commission decides that when the passenger has paid more than lawful tariff fares for the journey actually made the carrier may lawfully re- deem unused ticket and make refund on the basis of lawful tariff fare for the service actually rendered, when investigation de- velops clear identity between purchaser of ticket and the one to whom refund is made. (Amending ruling 76; see also rul- ings 265, 303, and 350.) November 13, 1908. 116. REFUND OP UNUSED PORTION OP ROUND-TRIP TICKET. — Because of a washout of a portion of its tracks a car- rier was unable to operate trains and thus return a passenger over that route within the time limited in a round-trip ticket which she held. A circuitous route was open to her, but on account of her age and the condition of her health she did not think it safe to take so long a journey, and therefore, waiting until the tracks had been repaired, "v^iich was after the expiration of the time limit of the ticket, she purchased a one-way ticket back to her home: Held, That as the carrier was not able to furnish the service which it undertook to furnish within the time limited in the round-trip ticket, it might lawfully refund the extra return fare so paid by the passenger. (See ruling 266.) 117. DEMURRAGE WAIVED UNDER SPECIAL CIR- CUMSTANCES. — A sidetrack to an industry upon which a car- rier had delivered 18 heavily loaded ears sank because of the marshy character of the roadbed: Held, That the carrier may refund demurrage collected for the necessary detention of the cars while the sidetrack was being rebuilt. (See note to ruling 242.) 118. REDUCED RATES POR MUNICIPAL GOVERN- MENTS IN FOREIGN COUNTRIES ADJACENT.— Upon in- quiry: Held, That the reduced-rate transportation for munici- GGO Conference Rulings. pal governments permitted under section 22 of llie act does not apply to municipal governments in foreign countries adjacent 119. RE SHIPPING OF GRAIN.— Unpon inquiry whether a proposed tariff rule providing that "the rate to be applied on all out-bound transit grain of record shall be the specific rato , that is lawfully in effect from Chicago at the time the grain is reshipped" may lawfully be incorporated in a tariff: Held, That the Commission can not sanction the rule, and that the grain can move only as a through movement on the through rate in effect at the time it starts, or as a local movement. (See In re Milling -in-Transit Rates, 17 I. C. C, 113; Liberty Mills v. L. d N. B. B. Co., 23 I. C. C, 184; and Board of Trade of City of Chicago v. A. A. B. B. Co., 39 I. C. C, 651.) 120. RESPONSIBILITY OP CARRIER FOR FAILURE TO FURNISH PROPER CARS UNDER RATE CONFINED TO CARS OF A CERTAIN CLASS.— Certain rates on coal published by a carrier to points on a connecting line were ex- pressly limited to shipments "loaded in box or s+ock cars only," because the connection refused to handle coal shipments in open ears. Upon demand for cars for a shipment to such points the carrier, instead of furnishing box cars to which the rate applied, furnished coal cars, which carried a higher rate : Held, That the carrier having issued the tariff itself, and having furnished cars that did not comply wnth the tariff requirements, was responsible for the excess charges. November 14, 1908. 121. A PRIVATE SIDETRACK DEFINED.— A private sidetrack is one that is outside the carrier's right of way, yard, and terminals, and of which the railroad does not own either the rails, ties, roadbed, or right of way. (Modifying ruling 79-a; see note to ruling 242. ) 122. A PRIVATE CAR OWNED BY ONE SHIPPER BUT USED BY ANOTHER. — A private car owned by one shipper but used with his consent by another shipper dealing in a dif- ferent commodity is not a private car as that phrase has been defined by the Commission in connection with demurrage charges. (Qualifying ruling 79&; see also ruling 128.) Conference. Rulings. 661 123. DEMURRAGE ON PRIVATE CARS TEMPORARILY OUT OF SERVICE STANDING ON CARRIERS' STORAGE TRACKS. — Demurrage is a charge for detention to ears that have been set by carrier for loading or unloading. Private cars ,are subject to demurrage rules the same as is the carriers' equip- ment except when the private car is standing on the private side- track. It is not necessary to charge demurrage either on car- riers' equipment or private cars when same are temporarily out of service and standing idle upon the storage tracks of the car- rier unless provision for such charge is included in carriers' de murrage rules. (See rulings 79, 222, 270, and note to ruling 242 ; see also Rule 75 of Tariff Circular 18-A ; see also Code of Na- tional Car Demurrage Rules.) December 7, 1908. 124. FREE TRANSPORTATION OF MATERIAL AND WORKMEN. — A carrier, not being able to ol)tain ice for refrig- eration purposes at a division point, entered into a contract un- der which a private company there undertook to build a plant and manufacture ice. The contract provided that in case it was necessary to enlarge the plant to meet the increasing needs of the carrier, the carrier would transport free of charge the ma- trials and mechanics necessary to make the enlargement. An en- largement was re({uired and made, and upon application by the carrier for permission to refund the freight charges on the mav terials used and the passenger fares paid by the mechanics em- ployed on the work : Held, That the ap])lieation must be de- nied, it appearing that the ice plant also sold ice commercially in the community in question. (Compare ruling 87.) December 8, 1908, 125. FAILURE TO VALIDATE PASSENGER TICKET.— Upon inquiry : Held, That a carrier might lawfully incorporate in its tariff a rule providing that when a passenger is compelled to pay the regular return fare because of his failure to have his round-trip ticket validated at the return starting point, the car- rier will refund the extra fare upon the filing with it of an affi- davit by the holder of the round-trip ticket, certifying that the 662 Conference Rulings. ticket had been used in accordance with all the conditions of the tariff and the contract on the ticket except as to the matter of validation. (See ruling 75 and 167.) 126. REFUND OF OVERCHARGE ON SHIPMENT TO FOREIGN COUNTRY ADJACENT.— An overcharge was col- lected on a shipment of tobacco to a point in Mexico. On appli- cation of the American carriers, in which the Mexican lines re- fused to join : Held, That the American lines might refund such part of the total overcharge as their division of the through rate bears to the entire through rate. 127. DAMAGE TO FRUIT BY DELAYED NOTICE OF ARRIVAL AT DESTINATION.— An express company under- took to notify the consignee of the arrival at destination of a shipment of strawberries, but failed for some days to effect notice partly because of an erroneous address on a postal card : Held, That the damage resulting from the delay was not due to any violation of the act to regulate commerce and therefore was not cognizable by the Commission. (See ruling 366.) December 10, 1908. 128. INCORPORATION IN TARIFFS OF AMENDED DEFINITION OF A PRIVATE CAR.— On June 2, 1908, the Conuni.ssion amended its definition of a private car as used in the opinion In the Matter of Demurrage Charges on Privately Owned Tank Cars, 13 I. C. C, 379, to include also cars owned and leased to shipper.s by private corporations. It is held that this amendment shall be incorporated in all new car-service rules dealing with this subject, and that all rules shall be so amended as to include leased cars on or before the next fiscal year, July, 1909. The Commission rules, however, that upon the amendment of tariffs as indicated, such leased cars, under the conditions dealt with in case No. 933, may be treated as private cars and be exempt from demurrage when standing on private tracks. (See rulings 79&, 122, and 222; see also note to ruling 242.) Conference Rulings. 663 January 4, 1909. 129. SIGNATURE TO APPLICATIONS FOR SPECIAL REPARATION. — In case of the absence, illness, or disability of the executive or general ofificer of a carrier by whom special re- paration applications are customarily made to the Commission, such applications may be signed in the name of such executive or general officer by his chief clerk, provided the executive or general officer has previously filed with the Commission written authority for the chief clerk to append his signature in such cases. 130. MAINTENANCE OF RELATIVE ADJUSTMENT IN ISSUING TARIFFS TO CONFORM WITH FORMAL OR- DER OF THE COM]\IISSION.— In establishing rates or regula- tions under an order of the Commission in a formal case, carrier or carriers that are actually and on the record parties to the case, or that are lawful parties to a joint tariff in which the rate or regulation that is prescribed is published by some carrier that is party to the case, may include in the change or changes made in compliance with the Commission's order commodity or com- odities that are grouped with that or those which are specified in the order; and may also include adjustment at other points in order to preserve established grouping or relation of points, and may also include adjustment of rates to same points on other eonunodities for the purpose of maintaining established relation of rates between commodities. Provided, all such changes made by authority of this rule shall be effected by reductions in rates or charges. If can-ier that is not party to the case or to the joint tariff desires to make on less than statutory notice the same changes that are made under the order by carrier that is party to the same, it must secure special permission so to do. (See ruling 14, 200-a, and 396.) 131. "GROSS TON" AND SIMILAR PHRASES, AS USED IN TARIFFS, DEFINED.— The term "per ton" and "net ton," when used in tariffs, will, in the absence of qualify- ing words, be held to mean a ton of 2,000 pounds. The terms ' ' gross ton ' ' and ' ' long ton ' ' and ' ' ton of 2,240 pounds ' ' will be held to mean a ton of 2,240 pounds. 664 Conference Rulings. January 5, 1.909. 132. REFUND ON GRAIN DOORS.— Where a carrier has established a tariff provision in conformity with the Commis- sion's rule with respect to the payment hy carriers of the cost of grain dooi*s, and it appears that prior to the publication of such a tariff it had been the practice of carrier to i)ay for grain doors furnished by shippers: Held, That applications may be made on the special reparation docket for authority to refund on the basis of the tariff provision for grain doors furnished within six months prior to the effective date of the tariff rule. (See rul- ings 19, 78, 267, 292, and 360.) 133. OVERCHARGE ON ONE SHIPMENT OFFSET AGAINST UNDERCHARGE ON ANOTHER.— (Superseded by ruling 323.) 134. FREE TRANSPORTATION WHEN TAKING MEASUREMENTS OF EIMPLOYEES FOR UNIFORMS.— A carrier requires that certain of its employees shall wear uniforms made from goods of texture and color and according to specifica- tions prescribed by the carrier. The carrier employs a certain firm to make such uniforms for any and all of its employees at agreed-upon prices. A man is sent over the line to take the measures and orders of employees for such uniforms. The em- ployee generally gives an order on the carrier for the amount of his order, which amount the carrier deducts in whole or in part from wages due the employee and the carrier pays the finn for the uniform. We are asked if the carrier may lawfully continue granting free transportation to man so taking measures and orders for uniform : Held, Tliat having its employees properly uniformed is a duty of the carrier in the interest of the carrier and of its patrons, and therefore the man so sent over its lines for the pur- pose named is, for that purpose and while engaged in that work, performing a duty devolving upon that carrier and may lawfully be given free transportation to the extent necessary for the per- formance of that duty, provided he does not in the same con= nection receive any orders from or sell any goods to persons who are not bona fide employees of that carrier. (Eee rulings 208b and 346.) ■ Conference Rulings. G65 January 27, 1909. 135. DEMURRAGE ON INTERSTATE SHIPMENTS.— Rule in Supplement No. 2 to Tariff Circular 15-A, entitled "De- murrage on interstate shipments," is amended by adding there- to the following: It is not permissible to provide that demurrage may be re- funded or waived in ease of inclement weather and leave it to the judgment of some person to determine what constitutes in- clement weather. It is permissible to provide that demurrage charges shall be waived or refunded in case of weather inter- \ference of such severity as to damage the freight in handling it into or from the car, or when shipment is frozen so as to pre- vent or seriously hinder unloading, or when "because of flood or high water, or snoAvdrifts which it is the carrier's duty to remove, it is impracticable to get car for loading or unloading. (Amending ruling 223-f. ^See ruling 358 and see also im- portant note to ruling 242. Rule in Supplement No. 2, referred to, is now reported as Rule 75 of Tariff Circular 18-A. See Code of National Car Demurrage Rules.) 136. ACCRUED CLAIMS NOT INVALIDATED BY SUB- SEQUENT CANCELLATION OF ABSORPTION RULE.— A tariff providing for the absorption of inbound switcning charges on certain traffic also provided that they would not be absorbed when the expense bills therefor were presented more than six months after their date. Within six months after certain switch- ing services had been performed bills therefor were presented, but the carrier refused payment on the ground that during the interval the absorption rule referred to had been canceled : Held, That the subsequent cancellation could not invalidate a claim already accrued. Fehruary 2, 1909. 137. INITIAL CARRIER LIABLE FOR MISROUTING.— An initial carrier delivered a shipment to a connection, but did not give it any routing instructions beyond noting on the way- bill the through rate via the cheaper of two available routes. The connecting carrier sent it over the route yielding it tlie greater revenue, but carrying the higher through rate : Held, 666 Conference Rulings. That the initial carrier is liable for the misrouting. (Construed and amended by ruling 286c. See ruling 199.) 138. CHARGES FOR MOVING PRIVATE CAR.— A tariff provided for the movement of a private car or sleeper at the regular fare for each occupant with a minimum of 20 adult fares and a minimum collection of $25 for each movement. Its direct line being blockaded by a washout, a carrier sent individ- ual passengers around a longer route over its lines at the short- line fare, but charged the occupants of such private car then on its lines the full mileage rates for the longer haul: Held, That under the tariff rule the car and party should have moved as the individual passengers were moved under the same cir- cumstances ; and the short-line fare ought also to have been applied to the private ear and party. (See ruling 213.) 139. STATUTE OF LIMITATION.— (Construed and amend- ed by Ruling 286 a, &.) 140. MISROUTING SHIPMENT THAT COULD MOVE INTRASTATE. — A shipment destined to another point in the same state was delivered to a carrier without routing instruc- tions. It was sent by a route which took it outside the state lines, and required the payment of an interstate rate higher than the state rate which would have applied on an available intra- state route : Held, That tlie Commission recognizes the right of the shipper to route his shipment, which in this instance the shipper neglected to do ; that the shipment moved interstate, and that the Commission can not say that the interstate line can apply any other than its lawfully published tariff rate except under special permission or order of the commission. (See rul- ings 214 and 419.) 141. TARIFF IS NOT GOVERNED BY CLASSIFICA- TION EXCEPT WHEN SO SPECIFIED.— A tariff naming commodity rates on strawberries in carloads fixed a certain rate on a minimum of 100 crates, and a lower rate on a minimum of 200 crates. The classification in that territory provided that carload rates would apply only when the carload is shipped from one station in one day by one shipper to one consignee and destination. The shipments in question belonged to different Conference Rulings. 667 owners, but with the knowledge and consent of the carrier and under the admitted intent of the tariff, were loaded and for- warded as carload shipments. They were loaded to or beyond the minimum of 200 crates per car : Held, That they were en- titled to the application of the lower rate on the basis of the 200-crate minimum. February 8, 1909. 142. BUNCHING CARS IN TRANSIT.— Upon an informal complaint that cars were delayed in transit and delivered by a carrier in such number as to exceed the shipper's facilities for unloading within the free time : Held, That tariffs ought to con- tain a rule providing that when, by fault of the carrier, cars are bunched in excess of the shipper's or consignee's ability to handle them within the free time, demurrage will not accrue. In the absence of such a rule the Commission can determine the reasonableness of such a practice only upon complaint filed. (See note to ruling 242; also Code of National Car Demur- rage Rules.) 143. MISROUTING OF COMPANY MATERIAL.— The initial carrier, disregarding instructions to route a shipment through a particular junction, moved it to destination over its own lines, the rates over the two routes being the same. Al- though the shipment was consigned to a private p*^rson, it was in fact the property of the connecting line, which therefore could have hauled it free of charge from the junction point to destina- tion. Notwithstanding the fact that the initial carrier had no notice and was not chargeable with notice that it was company material : Held, That the initial line is liable for the additional charges on the ground that a carrier exercising the right, under Rule 70 of Tariff Circular 15- A, to dictate intermediate routing must make its election at the time it accepts the shipment, and that if the carrier accepts the shipment with specific instructions it must so 'move the traffic or bear the damages arising out of its departure from the instructions. (Rule 70 is reported as ruling 214 of this Bulletin. See Fullerton-Powell Hardwood Lumber Co. V. M. (& N. F. R. R. Co., U. R. Op. A-367; St. Louis SoutJu western Ry, Co. v. P. & R. Ry. Co., U. R. Op. A-783 ; and In 668 Conference Rulings. tJic Matter of Transportation of Company Material, 22 I. C. C, 439.) 144. SWITCHING SHIPMENTS UPON WHICH TRANS- PORTATION CHARGES HAVE NOT BEEN PAID.— A ship- ment was forwarded with instructions to give delivery on a cer- tain road. The car moved over the proper route to destination, and was tendered for switching to the road indicated in delivery directions. Under long-established custom, it declined to assume res])onsibility for charges on the shipment and refused to ac- cept the ear until transportation charges had been paid. The carrier that brought the car in mailed a notice to the address of consignee, who was not known, and before the difficulty was straightened out demurrage accrued : Held, That the demurrage charges lawfully accrued and should stand. , 145. A TARIFF RULE THAT IS UNLAWFUL PER 8E CAN NOT BE USED.— A tariff contained a rule providing that: When freight can not be disposed of at point held for suf- ticient amount to realize by sale both freight and car service, or storage charges, demurrage charges may be refunded, waived, 01 canceled. Held, That the performance of a transportation cervi'.p <1pter- mines the obligation of the carrier to collect and of the shipper to pay the published rates therefor and no subsequent fact, hav- ing no relation to the service, can lawfully be made the basis for a refund or other departure from such rates. The provision is therefore unlawful per se and can not be accepted as authority for a waiver, refund, or cancellation of the tariff^ charges even as to a shipment made while the provision was contained in the pub- lished tariff. (See note to ruling 242; compare ruling 41 ; also see ruling 114.) 146. IIMPROPER AND UNLAWFUL TARIFF PROVI- SION. — A carrier's tariff contained the following rule: The Railway reserves the right to route through to destination property delivered to it for transportation at the through rates sliown in this tariff ; and every carrier participat- ing in such transportation shall have the right, in cases of necessity, including floods, embargoes, and blockades, to for- ward said property by any carrier between the point of shipment and the point to which the rate is given. All additional risks Conference Rulings. 669 and increased expense incurred by reason of change in route in cases of necessity, including floods, embargoes, and blockades, shall be borne by the owner of the goods and be a lien thereon Held, That this rule is improper and unlawful. (Compare ruling 183; see also ruling 83.) February 9, 1909. 147. RATE MUST APPLY ACCORDING TO MOVE- MENT. — Upon the arrival of a shipment at the junction desig- nated in the consignor's routing instructions it appeared that, because of a washout on its lines, the connecting carrier could not accept the movement. The shipper thereupon assumed custody of the shipment and forwarded it by a water line : TIelel, That the carrier must collect its local rate to the junction point and can not apply its proportion of the through rate. (See ruling 83.) 148. SIDE TRIPS MUST BE SHOWN IN THROUGH TARIFFS.— (Restated in ruling 177.) 149. AMENDED RULE 14 OF THE RULES OF PRAC- TICE. — (See current Rules of Practice.) February 11, 1909. 150. CARETAKERS UNDER SECTION 22 OF THE ACT. — Section 22 of the act provides — That nothing in this act shall prevent the carriage, storage, or handling of property free or at reduced rates for the Ignited States, state, or municipal governments, or for charitable pur- poses, or to or from fairs and expositions for exhibition thereat, or the free carriage of destitute and homeles.s persons trans- ported by charitable societies, and the necessary agents employed m such transportation. Held, That the words ' ' and necessary agents employed in such transportation" modify the entire preceding part of the section, and that the necessary caretakers of property transported for the United States, state, or municipal governments, or for char- itable purposes, or to or from fairs and expositions for exhibi- tion thereat, may legally be carried free or at reduced rates by carriers subject to the act, as well as the caretakers of desti- 670 Conference Rulings. tiite and liomeless persons transported by charitable societies. The words "necessary agents" as used in this section are in- terpreted to mean those persons necessary to the safe and proper care of the property during the period of transportation, and may not properly be extended to cover any persons other than those who actually accompany such property and are actually accessary to its care. (Compare ruling 171.) March 1, 1909. 151. RELIEF OF AGENT DOES NOT RELIEVE CAR- RIER. — Through error an agent inserted a route in a round- trip ticket over which the published fare was $10 in excess of the amount actually collected from the passenger. Upon the re- quest of the carrier for permission to relieve its agent of the un- collected undercharge : Held, That the collection of the amount from the agent would not in any way relieve the carrier of its re- sponsibility for failing to collect the full tariff fare from the passenger. (See L. & N. B. R. v. Maxwell, 237 U. S., 94.) 152. RIGHT OF SHIPPER TO PAY FREIGHT CHARGES ON FICTITIOUS WEIGHT IN ORDER TO RECEIVE FREE ICING. — A consignor having a shipment of dressed poultry weighing 9,910 pounds offered to pay freight charges on the basis of 10,000 pound in order to have the advantage of free icing under a tariff rule providing that the cost of icing would not be assumed by the carrier when the weight in each ear was less than 10,000 pounds; but the carrier refused to accept the 77 cents additional freight charges and compelled the shipper to pay $5.25 for the icing: Held, In analogy to the common practice of carriers to apply the carload rate and minimum on shipments of less weight where the application of the le.ss-than- carloacl rate would result in higher charges, that such a tariff rule, if susceptible of the construction placed upon it by the carrier, is unreasonable and ought to be amended. April 5, 1909. 153. CARRIER WHEN A SHIPPER CAN NOT EVADE PAYMENT OF LAWFUL RATES OF A CONNECTION BY SECURING TRACKAGE RIGHTS OVER ITS LINE.— An in- PONFERENCB EuLINGS. 671 terstate carrier desiring stone for ballast on its right of way, leased a trackage right over a short connecting line leading to a quarry, and proposed to purchase the stone at the quarry and haul it to its own line with its own crews and equipment : Held, That the Commission must decline to sanction the arrangement for the reason that the carrier under the circumstances is a shipper and the proposed arrangement is a mere device to evade the payment of the lawful rates and would result in unlawful dis- crimination. (See rulings 225, and 439; also see rulings in- dexed under Company Material and Divisions.) 154. TICKETS PURCHASED AT THE REGULAR PUB- LISHED FARE MAY BE GIVEN BY A LAND CO:\IPANY TO PROSPECTIVE PURCHASERS.— A land company having no relations, direct or indirect with a carrier has a lawful right to pay all or any part of the carrier's lawful transportation charges for such persons as it may choose to supply with tickets. 155. MOVEMENT BETWEEN PORTS IN CONNECTION WITH RAIL HAULS TO AND FROM INLAND POINTS SUBJECT TO THE ACT.— Traffic moving by rail from an in- land point to a port and thence by water to another port, or- moving by water from one port to another port and from the latter port to an inland point by rail, and which does not pass into the possession or custody of the owner or his agent at the port, is, when interstate traffic, subject to the act and under the jurisdiction of the Commission. (See rulings 66, 201, 354, 401, and 422.) 156. DELIVERING CARRIERS MUST COLLECT LAW- FUL CHARGES UPON PREPAID SHIP]\IENTS.— Upon in- quiry: Held, That it is the duty of the delivering carrier to collect the lawful rates on prepaid shipments and to correct any errors that may have been made by the agents of the initial : carrier in billing or in the collection by the initial carrier of the prepaid charges. (Reaffirming ruling 16; see ruling 314; also Western Classification Case, 25 I. C. C, 475.) April 6, 1909. 157. FREE TRANSFORATION FOR OFFICERS AND AGENTS OF EXPRESS COMPANIES AND THEIR FAM- 672 Conference Eulings. ILIES. — Upon inquiry it was Held, That a carrier subject to the act may lawfully give free or reduced rate transportation to the officers and agents, and their families, of express com- panies that are subject to the act. The Commission's decision in formal case No. 1985. {In re Contracts for free Trans- portation, 16 I. C. C, 246, is not to be understood as con- tradicting or rescinding this ruling. See ruling 361 ; also ruling 513.) 158. FREE TRANSPORTATION TO FAMILIES OF EX- EMPLOYEES. — Free transportation may lawfully be acorded to members of the family accompanying an ex-employee travel- ing for the jiurpose of entering the service of any common carrier subject to the act. (See ruling 102.) 159. BILL OF LADING SPECIFYING A ROUTE, BUT NAMING A RATE APPLICABLE OVER ANOTHER ROUTE.— (Canceled by ruling 474.) 160. HIGHER RATES WHEN SHIPMENTS ARE TEN- DERED WITH OTHER THAN UNIFORM BILL OF LAD- ING. — A carrier's tariff provided higher rates on shipments not tendered with a uniform bill of lading: Held, That the tender of a shipment accompanied by other than a uniform bill of lading may not be taken by the carrier as evidence of the shipper's election to use the higher rate. The carrier must direct his attention to the fact that a lower rate is available under the uniform bill of lading. (Compare ruling 226.) 161. TELEPHONE AND TELEGRAPH LINEMEN NOT ENTITLED TO FREE TRANSPORTATION.— (Telegraph and telephone companies are brought within the law by the amend- atory act of June 18, 1910 ; see antipass provisions of section one. Also see ruling 305, 95a par. 2, 219, and 364.) 162. MUNICIPAL FERRIES SUBJECT TO THE ACT WHEN PARTICIPATING IN TRANSPORTATION DE- FINED BY THE STATUTE.— The city of New York operates a municipal ferry between St. George and the foot of Whitehall street. The Staten Island Transit Company sells commutation tickets from Perth Amboy to the Whitehall street pier, and tiles a tariff of local and joint passenger fares to cover such trans^ Conference Rulings. 673 portation. TTpon inquiry from the commissioner of docks: Held, That the nnmicipality must join in the tariffs. (Compare ruling 89.) 163. REFUND ON ACCOUNT OF FULL-FARE TRANS- PORTATION USED BY A BOY UNDER 12 YEARS OF AGE NOT PERMISSIBLE.— A purchaser of two full-fare tickets called upon the initial carrier for a refund, after they had been used, on the ground that he had asked for a ticket and a half, and that he had used one of the full-fare tickets for his son, who was under 12 years of age. The agent of the carrier denied that a half-fare ticket had been requested, and the fact appeared that the father had accepted and paid for two full fares: Held, That the Commiasion would not authorize a refund. 164. A CARRIER MUST PUBLISH FARES AND OFFER TO THE PUBLIC RAILROAD TICKETS INDEPENDENT OF OMNIBUS ARRANGEMENTS.— A carrier under a tariff provision sells excursion tickets to a point on its line to which is attached a coupon for carriage from that point to Luray Cav- erns and return on the omnibuses of a designated transfer com- pany Held, That this is not a discrimination under the act against another transfer company. But the Commission holds that while such tickets may lawfully be sold, the carrier must publish the railroad fare to the point in question and separately show bus fare beyond, and must also have on sale tickets to that point at the rate named without bus coupons attached. 165. OFFICERS AND EMPLOYEES OF A RAILROAD RECEIVER ENTITLED TO FREE TRANSPORATION.— Upon inquiry from a receiver duly appointed by the court to manage the property and assets of a railroad company : Held. That officers and employees engaged under the receiver in the operation of the railroad occupy the same position under the antipass provision of the act as do the officers and employees of any other railroad. (See ruling 436.) April 13, 1909. 166. RETROACTIVE APPLICATION OF RECONSIGNING PRIVILEGE NOT PERMISSIBLE.— Adhering to Conference 674 Conference Rulings. ruling 6, the Commission will not sanction the application, retroactively, of a reconsigning privilege, even though it had long been the custom of the carrier to permit reconsignment without tariff authority. (See ruling 77.) 167. A PASSENGER WRONGFULLY DEPRIVED OF THE BENEFIT OF RETURN COUPON OF A ROUND-TRIP EX- CURSION TICKET MAY HAVE REPARATION.— A pas- senger holding a round-trip ticket on the certificate plan, or a round-trip ticket requiring validation, was, through ignorance or fault of a carrier's agent, deprived of the benefit of the re- duced fare on the return journey and was compelled to purchase a full-fare ticket: Held, That such cases are analogous to the misrouting of freight and ought to be adjusted on the general principle underlying Rule 70 of Tariff Circular 15-A (ruling ^214 of this bulletin). The Commission, therefore, authorizes carriers in such eases, without a special permissive order, to re- ifund to the passenger the difference between the total fare paid by him and the reduced rate which he would have enjoyed except for the carrier's error; and the carrier at fault must -bear the full burden without recourse upon any other road participating in the carriage. (Reaffirming ruling 113. See also rulings 75, 125, 247, 266, and 277. Also see L. & N. R. R. v. Maxwell, 237 U. S. 94.) 168. EFFECT OF TRACKAGE ARRANGEMENTS UN- DER THE ACT TO REGULATE COMMERCE WITH RES- PECT TO SHIPMENTS ROUTED BY SHIPPER.— The Min- eral Point & Northern Railway Company has trackage arrange- ments with the Chicago, Milwaukee & St. Paul for the joint use of the latter 's tracks between Highland Junction and Mineral Point, Wis. Upon inquiry from the general manager of the first-named road as to whether the St. Paul rightfully may refuse to turn shipments over to it at Highland Junction, when so routed, and retain possession of the revenue for the haul from that station to Mineral Point : HeJd, On the understanding /that the shipments in either case would be delivered at the same warehouse and at the same rate, that under the act to re- gulate commerce no obligation rests on the Chicago, Milwaukee & St. Paul to turn over shipments to the Mineral Point & Conference Rulings. 675 Northern Railway at Highland Junction for transportation to Mineral Point. 169. FREE PASSES TO EMPLOYEES OF A CAR-LIGHT- ING COMPANY UNLAWFUL.— Upon inquiry from a car- lighting company it was Held, That its experts for the testing and observation of the performance of its lights on trains are not employees of the carrier, and are not therefore entitled to free transportation. • (See ruling 95.) 170. IMPORTED MERCHANDISE NOT ENTITLED TO INLAND PROPORTIONAL RATE WHEN THE TRANS- PORTATION FROM THE PORTS IS PURELY LOCAL.— An importer of flax, after unloading a cargo at the port, sold it, and the purchaser some months later sold a part of the original shipment to a manufacturing company, by which it was shipped to a point in the Middle West at the regular local rate of the carrier that took the movement. At the time there was in effect an inland proportional rate from the port to destination : Held, That the movement from the port was a separate and distinct transaction upon which the local rate was the only lawfully applicable rate. May 4, 1909. 171. FREE TRANSPORTATION TO SHIPPERS OF PER- ISHABLE FREIGHT.— The tariffs of a carrier included a refrigeration service, under rates named therein, on perishable freight. Upon inquiry whether the shippers or their agents might have free transportation to inspect the reicing of the cars: Held, That it does not appear that they are necessary care takers within the meaning of section 1 of the act. (Compare ruling 150.) 172. RATE IN EFFECT ON RECEIPT OF SHIPMENT IS THE LAWFUL RATE.— Freight was received by a carrier and bills of lading were issued therefore on December 21 and 29, 1908. The freight was actually moved on January 1, 1909, on which date a lower rate went into effect: Held, That the rate in effect on the date the carrier received the property for trans- portation is the lawful rate. 676 Conference Rulings. 173. FREE TRANSPORTATION FOR FAMILY OF DE- CEASED EMPLOYEE. — An engineer of one carrier having ended his run for the day was preparing to return to his home over another line the train service of which was more convenient. He lost his life by inadvertently stepping in front of a train of this carrier. Upon inquiry whether under the recent amend- ment to the antipa.ss provision of section 1 free transportation might be given to his widow and children by the road by which he had been employed: Held^ That the case comes within the spirit and meaning of the amendment. (The amendment re- ferred to is in the act of April 13, 1908. See rulings 18, 103, 193, and 476.) 174. FREE TRANSPORTATION OF FAMILY OF EM- PLOYEE. — May an employee use free transportation for the remains of his wife after they had been temporarily interred? Held, That within the meaning of section 1 of the act the deceased wife of an employee may be regarded as a member of his family until given permanent burial. (Se ruling 95c.) 175. CARLOAD SHIPMENTS.— A coffee broker purchased from three different merchants at New York three lots of coffee for shipment to one customer as one carload. The three lots were delivered to the carrier under circum.stanees that would have entitled them to go to destination as a carload shipment had proper instructions been given. Because of the failure of the shipper's agent to give such instructions the three lots went forward to destination as three shipments, at the less-than-carload rate. Upon inquiry by the carrier whether it might assess the carload rate: Held, That freight charges must be collected on the basis of the less-than-carload rate. 176. FREE OR REDUCED-RATE TRANSPORTION TO AND FROM EXHIBITIONS.— Specimens of ore that are not to be offered for sale but are intended exclusively for exhibition at the Chamber of Mines at Los Angeles may be carried free of charge or at reduced rates, under section 22 of the act. May 10, 1909. 177. SIDE TRIPS NOT SPECIFICALLY SHOWN IN A THROUGH TARIFF. — Modifying Conference Ruling No. 148, Conference Rulings. 677 it is Held, That a note in a through tariff providing that pas- sengers purchasing through tickets thereundei" shall be entitled to such side-trip privileges as are stated in the individual tariffs on tile with the Commission, of the carriers, that are parties to the through fares, is a sufficient compliance with the require- ments of the law and with the rules of the Commission. 178. USE OF MILEAGE TICKETS IN NEW TERRI- TORY. — A tariff authorizes the sale of mileage tickets good be- tween points within a specified limited territory. Subsecjuent to the date upon which such a ticket is sold and prior to the date of its expiration the tariff is amended so as to include additional territory. May such mileage tickets be thereafter honored for transportation between points in the added territory? Held, That the terms of the contract of original sale must be adhered to unless the amendment to the tariff specifically authorizes honoring outstanding tickets between points in the added terri- tory. 179. TARIFFS PROVIDING FOR TRANSPORTATION OF CARETAKERS IN PASSENGER CARS.— When an express company provides in its tariff for free transportation for care- takers in charge of live stock, poultry, or fruit, and the rail- road company over whose lines such express company operates provides in its tariff that such caretakers may be permitted to ride in passenger cars, the tariff of the express company and that of the railroad company must give reference to each other. 180. LESSEE ROAD NOT SERVING PUBLIC AS COIMMON .CARRIER. — For operating purposes only a carrier leased 20 ,miles of its line to another railroad company. The contract .required the lessee, for an, agreed compensation to be paid to it ,by the lessor, to operate the lessor's trains and to maintain its way, tracks, and appurtenances, the rates and charges to be collected by the lessor and the lessee to have no direct deal- ings with the public. On the facts a^ stated in the inquiry : Held, That the lessor must publish the rates, fares, and charges, and the lessee need not be a party to the tariffs nor concur therein, but is simply a contractor performing certain services for the lessor. (Compare ruling 229.) 678 Conference Rulings. June 7, 1909. 181. SUBSTITUTION OF TONNAGE.— (Withdrawn Febru- ary 10, 1913; see The Transit Case, 26 I. C. C, 20-1, 210.) 182. SALE OF TICKETS AFTER DEPARTURE OF LAST TRAIN ON FINAL SELLING DATE.— Tariff quoting pas- senger fares provides that tickets shall be on sale between cer- tain specified dates and that they shall be good going for a specified period, including the date of sale. Passenger desir- ing to take advantage of such fare applied for such ticket on the last day of sale and after the last train for the day had departed from that station. Agent refused to issue the ticket desired. The time limit specified in the tariff was sufficient to carry passenger through to destination within that limit even if he left the initial point on the day following the last date of sale. Tariff did not require that journey should commence on date of sale of ticket : Held, That agent should have issued the ticket requested, the time limit thereunder being sufficient to carry passenger through to destination by his starting on the following day; and the tariff containing no requirement as to date upon which journey should begin: Held furiher, That if tariff had provided that journey must commence on the day of sale of ticket, agent could not legally have issued such ticket after the last train for the day had departed on the last date of sale. 183. RESERVATION OF RIGHT TO ROUTE SHIP- MENTS. — The following rule in a published tariff was ap- proved as law^f ul, subject to complaint by shippers : The A. & B. Railroad Company reserves the right to route through to destination property delivered to it for trans- portation at the through rates shown in this tariff, and every carrier participating in such transportation shall have the right, in cases of necessity, to forward said property by any railroad ,or route between the point of shipment and the point of des- tination, or the point to which the rate is given ; if such diver- sion shall be from a rail to a water route, the liability of the carrier shall be the same as tliough the entire carriage were by rail. (Compare ruling 146.) Conference Rulings. 679 (See section 15 of the amended act reserving to shippei'S the right to route shipments.) 184. PERFORMANCE OF TRANSPORTATION SER- VICE WITHOITT RATES ON FILE.— In a recent prose- cution instituted by the Commission of a carrier for engaging in transportation of interstate commerce without having previously filed with the Interstate Commerce Commission lawful tariffs applicable thereto, and in which conviction was had and fine of $12,000 was assessed, the court, speaking through Humph- rey, J., said: It thus appears not only that the performance of interstate transportation by a carrier which has neglected to file and publish its rates and charges is a misdemeanor under the act to regulate commerce and under the Elkins Act, punishable by as severe penalties as any other violation of these acts, but it also appears that the requirement for filing and publication of the rates has been in the act to regulate commerce ever since the passage of the original CuUom bill, and that its im- portance has been recognized by the Congress by successive amendments designed to make it more precise and its violation more surely and more severely punishable. The railroad line of the defendant here is entirely situated within the state of Illinois. It is not more than 16 miles in length. It is really no more than a switching road connecting the various railways reaching East St. Louis and Alton, 111., with each other and with various industries which have been established upon its rails. From the indictment and the plea thereto it appears, however, that this defendant is engaged in the transportation of property moving wholly by railroad from one state to another state. It is, therefore, as much subject to the act as though is owmed and operated all the line of railroad connecting the points in different states between which moved the commodities mentioned in the indictment. C. N. 0. & T. P. Ry. V. /. C. C, 162 U. S. 184; L. d- N. R. R. v. Behhner, 175 U. S. 648; U. S. v. C. & A. W. R. Co. (C. C. A., 157 Fed. Rep, 321; Belt Ry. Co. of Chicago v. United State, 168 Fed. Rep., 542. These authorities establish that the law^ regarding pub- lication of rates and charges for interstate transportation applies with equal force to all carriers engaging in such interstate trans- portation, whether such carriers operate trains from one state to another or operate entirely within the boundaries of a single state. G80 Conference Rulings. The eliit'f ol)jeet of the act to regulate commerce is the pre vention of discrimination. Carriers, being engaged in a public em- ployment, must serve all members of the public on equal terms. This was tlie doctrine of the common law. It has been ex- plicitly stated and strengthened by the successive acts to re- i;ulate commerce. The requirement of the act that all rates .'■liould be published is perhajis the chief feature of the scheme provided for the effective outlawing of all discriminations. If this portion of the act is not strictly enforced, the entire basis of effective regulation will be lost. Secret rates will inevitably become discriminating rates. Whenever discriminating rates or practices are made public, a thousand forces of self-interest and of public policy will be set at work to reduce them to fairneas and equality. The failure of any carrier to properly tile and publish its rates is quite as serious a violation of the act to re- gulate commerce as a failure to observe such rates after they have been properly filed and published. {U. S. v. Illinois Ter- minal R. C, 168 Fed. Rep., 546, 548.) It is clearly the duty of the Commission to strictly enforce the provision of the law referred to, and it may confidently be ex- pected that that duty will be performed. (See ruling 194.) 185. FREE OR REDUCED RATE TRANSPORTATION TO MUSEUM OF NATURAL HISTORY.— A r-uiseum of natu- ral history, erected in a public park by private subscription and supported partly by taxes and partly by the income of funds contributed by citizens, may be given free or reduced rate trans- portation under section 22 of the act on articles intended for exhibition therein, notwithstanding the fact that as a means of securing additional income it charges an admission fee on certain days of the week, admission being free on other days. (See ruling 245.) June 8, 1909. 186. LIABILITY FOR MISROUTING.— (Canceled by ruling 474c.) 187. INTERPRETATION OF CONFERENCE RULING NO. 3.— (Restated in ruling 314.) June 14, 1909. 188. RATES BASED ON DECLARED VALUATION.— The agent of a shipper not knowing the value of a dog to be sent by CONFEEENCE RULINGS. 681 express, nevertlieless named, a valuation of $500, and the re- sulting charges to destination amounted to $45. The dog was actually worth $15, and at this valuation the express charges would have been $8. The consignee declined to accept delivery and pay the charges demanded. Upon inquiry whether charges may be collected on the basis of the actual value of the dog, it was ITcId, That the shipper is responsible for the act of his and that the charges at the valuation given must be collected. (Comi)ore rulings 58 and 295.) 189. RETURN OF CARETAKERS.— A shipment of live stock moved between two points over two connecting lines. Upon inquiry by the delivering road, which had a through direct line between the two points, it was Held, That it can not free of charge return the caretakers over its own direct line through to the point of origin of the shipment. 190. IN THE ABSENCE OF INSTRUCTIONS INITIAL CARRIER NOT REQUIRED TO ROUTE VIA RAIL AND WATER.— Rule 70 of Tariff Circular No. 15-A {Conference Riding 214) contemplates that where rail-and-water and all-rail rates are available for a shipment the shipper shall designate which class of routing he desires and that the agent of the car- rier shall secure such designation from the shipper. A shipment was delivered to a rail carrier destined to a point to which it might be forwarded via either all-rail or rail-lake-and rail route. No class of route was designated by the shipper. Shipment was forwarded all rail : Held, That taking into con- sideration the liabilities of carriers and tlie (pieslion of marine insurance upon water-borne traffic, the carrier's agent did not negligently misroute this shipment. (Interpreted in ruling 316. See Keeton v. St. L. S. W. Ry. Co. of Texas, 39 I. C. C, 221.) 191. CAR-SERVICE CHARGES ON TRAFFIC FROM AND •>T0 CANADA. — With respect to traffic between points in Can- ada and points in the United States, the Commission does not vwaive the requirement that carriers shall file tariffs showing their terminal charges and that such charges must either appear speci- fically in the tariffs naming the rates or the tariffs establishing such charges must be specifically referred to in the tariffs nam- ing the rates, 682 Conference Eulings. 192. INTERPRETATION OR AMENDED RULE 70 OF TARIFF CIRCULAR 15-A.— (Canceled by ruling 474.) 193. FREE TRANSPORTATION OF REMAINS OF DE- CEASED EMPLOYEE AND FAMILY ACCOMPANYING SAME. — It is the view of the Commission that the spirit and meaning of the law with relation to free passes for employees and their families will not be violated if, in the case of the death of an employee while in the service of a carrier, free transportation be given to his remains and to members of his family who might lawfully use free transportation, if he were still alive, to the place of interment and return to their homes. (See rulings 18, 103, 173, and 476.) Note. — The amendatory act of June 18, 1910, authorizes free trans- portation to widows and minor children of deceased employees, the former during widowhood and the latter during minority. 194. REFUND DENIED OF DEMURRAGE COLLECTED UNDER TARIFF NOT ON FILE.— The Commission will not entertain with favor claims for refund of demurrage charges, collected in accordance with a carrier's established practice, solely upon the ground that the demurrage tariffs were not on file with the Commission at the time the demurrage charges accrued. The failure to file demurrage tariffs constitutes a violation of the act, with which the Commission will deal through the Division of Prosecutions. (See ruling 184.) 195. APPLICATION OF COMBINATION RATES ON FREIGHT MOVING THROUGH ANOTHER JUNCTION.— The conference ruling of June 14, 1909, under this caption was rescinded on November 24, 1909. Amended Rule 5, Tariff Cir- cular No. 18-A, covers and governs the subject. 196. INERCHANGE OF FREE TRANSPORTATION FOR EMPLOYEES OF WATER LINES.— When a common carrier by water, other than ocean carrier not subject to the act, unites with a carrier by rail for the interstate transportation of pas- sengers, partly by water and partly by rail, under a common control, management, or arrangement for a continuous carriage shown by concurrence in tariff or tariffs duly published and filed with the Commission, such carriers can lawfully interchange transportation for their officers, agents, and employees. (Reaf- firming ruling 95g. IModified bj^ ruling 475.) Conference Rulings. 683 June 21, 1909. 197. CARRIERS SUBJECT TO THE ACT.— A railroad not otherwise subject to the act subjects itself to the jurisdiction of the Commission and tlie provisions of the act if it transports express matter for an express company that is subject to the act. (See rulings 368 and 418.) June 22, 1909. 198. INTERPRETATION OF RULE 70, TARIFF CIRCU- LAR NO. 15-A (Ruling 214 of this Bulletin).— Under this rule any carrier, whether it be the initial or a connecting line, that misroutes a shipment, thereby causing additional transportation charges, may, upon admitting its error, pay the damages arising therefrom, provided the whole burden is borne by it without par- ticipation therein by its connections. But the admission nuist be in good faith with respect to the particular case of misrouting ; the Commission will not recognize the validity of any general agreement between two or more carriers by which one assumes responsibility for misrouting in all cases. 199. RESPONSIBILITY FOR MISROUTING.— When a ship- per has given routing instructions which a carrier fails to trans- mit to its connection, the carrier so failing shall be responsible for all additional transportation charges resulting from a mis- routing of the shipment. (Amended by ruling 286-c. See ruling 137.) 200. REPARATION CLAIMS ON THE INFORMAL DOCKET. — (a) At a recent conference between the Connnission and representatives of a number of carriers the embarrassments , arising through the tying up of rate schedules under the one-year clause customarily inserted in informal reparation orders were fully considered, and the discussion that then took place as well as our subsequent reflection upon the matter have led us to the conclusion that some modifications of our practice in that regard may be made in certain cases to advantage and without impairing the effectiveness of the law. We have therefore agreed ujion the following rules which we think will afford some relief in the premises. (See rulings 14, and 396.) 084 Conference Rulings. 1. In cases whore the through rate in effect at the time of the shipment was in exceSvS of the sum of the local rates the order, instead of requiring the maintenance of an absolute rate for one year from the date of the tiling of the application, shall require the absolute rate to be maintained for a period of only six months from the date upon which the reduced through rate equaling the sum of the locals became effective ; this rule shall apply, how- ever, only in cases where the local rates in question are to and from some well-recognized and established basing point or line, such as the Mississippi, Missouri, and Ohio Rivers, Chicago, Min- nesota Transfer, Buffalo, etc. In all other eases the present practice shall be enforced. (Modified by ruling 425.) 2. Where there is a natural geographical relation between the point involved and other points, which relation the carrier has theretofore expressed in its tariffs by grouping that point wnth the other points, either with respect to rates on the commodity in question, or with respect to rates on other commodities, or with respect to class rates, the order may require the maintenance of the group relation for one year from the date of the applica- tion instead of requiring an absolute rate to or from the point in question. 3. Where the rates on a product of a raw material have had a definite relation to the rates on the raw material, and that relation has been temporarily disturbed and subsequently re- stored, the order may control the relation for one year instead of fixing an absolute rate on the product. 4. Where a carrier is compelled to charge a higher rate than was intended because of an error in printing a tariff, the one-year clause may be omitted only where the error is specifically called to the attention of the Commission within ninety days after the tariff containing the error has been filed. (b) Because of the uncertain condition of the tariffs of carriers the Commission has been rather liberal in the past in the conduct of its special reparation docket and proposes, in order to help carriers dispose of claims that have accumulated in tlie past, to continue this policy for the present. It is manifest, however, that the time is approaching when in the general interest of all concerned the Commission must adopt a different attitude. We take occasion therefore now to say that the Commission will Conference Rulings. 685 cooperate with carriers, so far as that may legally be possible, in the effort to get all old claims disposed of, and, with respect to shipments made prior to September 1 next, will pursue its present policy of liberality. But with respect to shipments mov- ing on and after that date the Commission will draw the lines much more closely, and will adopt such measures as will materi- ally narrow the scope of its activities in that connection. We are not prepared at this time to define in detail what our policy in the future will be. It may be well, however, uow to say that after that date we shall not award reparation, either on the for- al or the special docket, in any case where the carj-ier in question has reduced a rate simj^ly in order to meet the lower rate of a competitor. Any other course of action not only deprives the competitor of the natural benefits of its lower rate, but tends to destroy the inducements for making a lower rate. Moreover, any other course of action is demoralizing in that it enables the carrier, before its own lower rate has become effective, to assure shippers that they may ship by its line notwithstanding its higher rate and afterwards secure reparation on the basis of the lower rate of its competitor. "Wliere there is a difference in rates be- tween two points over different lines, shippers must understand that they may get the benefit of the lower rate only by sending their merchandise over the line publishing the lower rate. (See ruling 205 ; also ; Nohle v. D., T. & I. By. Co., U. R. Op. A-510 ; Trussed Concrete Steel Co. v. E. B. B. Co., U. R. Op. A-512 and A-513; Athens Pottery Co. v. T. & N. 0. B. B. Co., U. R. Op. A-796; Ishell & Co. v. L. 8. c& M. S. By. Co., 19 I. C. C, 450; Georgia-Carolina .Brick. Co. .v.. 8. By. Co., 20 I. C. C, 149; Bailroad Commissioners of Montana v. N. P. By. Co., 26 I. C. C, 482; and PuyaUup & Summer Fruit Grower's Asso. N. P By. Co., 38 I. C. C, 702.) (c) It may be well also to announce that it has been suggested that when reparation is granted to a complainant, either in a for- mal or an informal proceeding, on a finding that the rate under which his shipment moved was excessive and therefore unlawful, ..the spirit of the law requires that the order ought also to com- ^pel the carrier to make a refund on the same basis on all other shipments, moving after the date of the filing of any such com- plaint, under the rate thus condenmed. Wliile no conclusion 686 Conference Rulings. lias l)oen reached there is force in this view and it will have further consideration. (See ruling 220-f7.) (d) The suggestions that have come to us from various quar- ters in relation to the conduct of the special reparation docket indicate that some misapprehension exists as to the purpose of that docket, and as to the authority of the Commission in deal- ing with such cases. It may be well, therefore, to say that our action in special raparation cases has no authority in law ex- cept the authority upon which we take similar action in formal cases. In all cases, whether on the formal or the special docket, the law in section 15 specifically requires a complaint and ans- wer and a full hearing; and in section 14 it is provided that where damages are awarded the report of the Commission shall include the findings of fact on which the award is made. We have endeavored to simplify the procedure on the special docket by accepting the application of the carrier as the eciuivalent of a complaint and answer, and by accepting its admission that the rate charged under the circumstances then existing was un- reasonable as a sufficient compliance with the requirements of section 15 for a full hearing The informality in the pleadings in such cases seems to have led some carriers as well as shippers into the error of supposing that special reparation cases can be disposed of still more informally. This, however, is a mistaken view of our authority. The special docket it not an informal docket in any sense except in respect to the form of the pleadings and the character of the hearing. Our orders in such cases must be regarded as formal orders as fully in all respects as our orders in formal cases. The Commission can exercise no au- thority on the informal docket that it can not exercise on the formal docket, nor may it omit any requirement with respect to cases on the special docket that the law imposes upon us in the disposition of cases on the formal docket. (See ruling 14 and 220.) June 23, 1909. 201. JOINT THROUGH RATES TO AND FROIM PORTO- RICAN PORTS.— Without at this time deciding whether Porto Rico is to be regarded as a territory of the ITnited States as that phrase is used in section 1 of the act, the Commission will Conference Rulings. 687 "^ecognize the validity of joint through rates from or to points in the United States or to or from a port or ports in Porto Rico when properly concurred in by the water carriers. (See rulings 155, 354, 401, and 422.) June 24, 1909. ■ 202. DISTANCE TARIFFS TO SHOW DISTANCE BE- TWEEN STATIONS.— Where rates are stated in a tariff as so much per mile, or according to distance, that tariff, or .some tariff sijecifically referred to therein, must show the distances between the stations between which such rates are to be ai)plied. For the present the Commission will not apply lliis rule to ordi- nary mileage tickets or books for passenger travel. June 29, 1909.- 203. SUBSTITUTION OF TONNAGE IN TRANSIT.— (Cancels ruling 85. Ruling 20.'> withdrawal February 10, 1913. see The Transit Case, 24 I. C. C, 344, and 26 I. C. C., 210.) 204. TRANSIT PRIVILEGES.— It is the sense of the Com- mission that no transit privilege should extend beyond one year. (Qualified by ruling 232.) 205. LIABILITY FOR MISROUTING.— An initial carrier misrouted a shipment, resulting in additional transportation charges, for which it admitted its responsibility and made settle- ment in accordance with Rule 70 of Tariff Circular No. 15-A (Ruling 214 of this bulletin). Subsequently the connecting line over which the shipment moved became a party to a tariff' naming the same rate that applied at the time of the movement over another route. Thereupon the initial carrier and the con- necting line requested permission to divide the misrouting over- charge: Held, That the petition must be denied on the ground that such a course would amount to the retroactive application of a published rate. (See rulings 200& and 220/(.) July 2, 1909, 206. PROCEDURE IN FORMAL CASES.— (See current Rules of Practice.) 688 Conference Rulings. September 15, 1906. 207. PAYMENT FOR TRANSPORTATION.— Nothing but money can be lawfully received or accepted in payment for trans- portation subject to the act, whether of passengers or property, or for any service in connection therewith, it being the opinion of the Commission that the prohibition against charging or colleeting a greater or less or different compensation than the established rates or fares in effect at the time, precludes the acceptance of services, property, or other payment in lieu of the amount of money specified in the published schedule. (See In the Matter of Transportation of Company Material, 22 I. C. C, 439 ;C. /. & L. Ry. (Jo. v. U. S., 219 U. S., 486; L. d' N. R. R. v. Mottley, 219 U S., 467 ; and N. Y. Central R. R. v. Gray, 239 U. S. 583.) October 12, 1906. 208. FREE PASSES AND FREE TRANSPORTATION.-^ (a) The pro\dsions of the act relative to -the issuance of free tick- ets, free passes, free transportation, or free carriage to employees of carriers apply only to persons who are actually in the serv- ice of the carriers and who devote substantially all of their time to the work or business of such carriers. Land and im- migration agents unless they are bona fide and actual em- ployees, representatives of correspondence schools, agents of accident or life insurance companies, agents of oil or lubricat- ing companies, etc., are not within the classes to Avhich free or reduced-fare transportation can be lawfully furnished. (See rulings 95, 308, 412, 449, 454, and 466.) (b) But the Commission does not construe tlie law as pre- venting a carrier from giving necessary free transportation to a person traveling over its line solely for the purpose of attending to the business of or performing a duty imposed upon the car- rier, nor from giving free carriage over its line to the household and personal eff'ects of an employee who is required to remove from one place to another at the instance of or in the interest of the carrier by which he is employed. (See rulings 109, 134, 255, 361, 478, and 479.) (c) Nor does the Commission construe the law as preventing a carrier from giving free or reduced-rate carriage over its line Conference Rulings. 689 to contractors for material, supplies, and men for use in con- struction, improvement, or renewal work on the line of that carrier, provided such arrangements for free reduced-rate carri- age are made a part of the specifications upon which the contract is based and of the contract itself. (See rulinirs 386 and 413 j also Railroad^Telegraph Contracts, 12 I. C. C, H.) (d) The provision of the act relative to the issuance of free or reduced-fare transportation to ministers of religion do not apply to or include members of the families of ministers of religion. Neither do the provisions of the act relative to the is- suance of free or reduced-fare transportation admit of including therein officers of the Government, the army, or the navy, or members of their families, or other persons to whom such con- siderations may have been extended in the past, unless they are within the classes specifically named in the act. Reduced rate or fare transportation may be granted to such persons as are specified in the law as those to whom free trans- portation may be given. (See ruling 95.) (e) Section 22 of the act authorizes carriers to grant free or reduced-rate transportation of property for the United States, state, or municipal governments, or for charitable purposes or for exhibition at fairs or expositions. It also authorizes free or reduced-fare transportation of certain specified persons. This special provision and the words "reduced rates" are con- strued to be special authority for carriers to depart from estab- lished tariff rates or fares; and for such transportation as is provided for in said section 22 it is not necessary for carriers to provide tariff's or observe tariff rates or fares and regulations excepting in the issuance, sale, and use of mileage, excursion, or commutation passenger tickets, and joint interchangeable mile- age tickets. As to these, the provisions of section 6 with regard to publishing, filing, posting, and observing tariffs must be com- plied with. (See rulings 33, 36, 65, 218, 244, 297, and 311; compare ruling 107.) November 16, 1906. 209. DIVISION OF JOINT RATES OR FARES— CON- TRACTS AND AGREEIMENTS FOR, MUST BE FILED.— A contract, agreement, or arrangement between common carriers. 690 Conference Rulings. governing the division between them of joint v?tes or fares on interstate business, is a contract, agreement, or arrangement in relation to traffic within the meaning of section 6 of the act to regulate commerce, and a copy thereof must be filed with the Commission. Where such contract, agreement, or arrangement is verbal, or is contained in correspondence between the parties, or rests on their custom and j^ractice, a memorandum of its terms must be filed with the Commission. When the agreement or arrangement under which divisions are made is in the form of a contract or formal agreement or recorded memorandum, a copy of each such contract, agreement, or memorandum is to be filed with the Commission. Where such arrangement is made by correspondence or verbally, a con- cise memorandum of the basis and general terms and application of the arrangement or practice is to be filed with the Commission. The filing of the division sheets themselves is not desired. (See ruling 269 and 372; amended by order in Divisioa of Joint Rates on Bail way Fuel Coal, 37 I. C. C, 265.) 210. CORRESPONDE^[CE WITH COMMISSION ON FREIGHT AND PASSENGER MATTERS.— It is believed that the best results and understandings will be reached if the con- ducting of ordinary correspondence between carriers and the Commission is confined to as few persons as possible. Request is therefore made that the traffic manager or the general pas- senger and general freight agents of each road designate not more than two officials or other representatives to respectively conduct the correspondence with the Commission on freight and passenger matters and to promptly advise the Commission of such appointments. 211. DISTRIBUTION OF OFFICIAL CIRCULARS AND RULINGS. — It is obviously impracticable for the Commission to place copies of its official circulars and rulings in the hands of all the officers of carriers or to furnish copies for distribution among them. The officers at the head of the traffic departments, or in charge of the passenger and freight departments, res- pectively, will please designate for each road one official in the passenger department and one in the freight department (un- Conference Rulings. G9L less both are imder one liead officer and one appointment is con- sidered sufficient), to whom such circidars and rulings are to be sent; and arrange for such designated officials to disseminate the information among other interested officers and agents. Please report these appointments to the Commission as carin- as possible. With the view of giving prompt information to those who may be interested, the Commission will upon application place upon its mailing list regularly organized boards of trade, cham- ber of commerce, commercial clubs, and shippers' associations, for the purpose of mailing to them copies of official circulars containing rulings and orders of the Commission. January 21, 1907. 212. TEANSPORTATION OF NEWSPAPER EMPLOYEES ON SPECIAL NEWSPAPER TRAINS.— In Transportation of Newspaper Employees, 12 I. C. C. 15, on the petition of certain newspapers in New York City, the Commission decided that a conrmodity rate may not be applied to the transportation of passengers or a passenger fare to the transportation of a com- modity, and that therefore emplo^-ees of the newspapers, riding on special newspaper trains, can not lawfully be transported under a commodity rate established for the carriage of news- papers or at any rate other than the one specified m the regularly published schedule of passenger fares. 213. DIVERTING TRAFFIC BECAUSE OF BLOCK ADES. — (a) Whenever, by reason of blockade upon the line o- a carrier resulting from storm, washout, wreck, or similar casualty, it becomes necessary for it to divert to the line of an- other carrier passengers or freight that are in transit, the car- rier so diverting its business should pay the carrier or carriers, upon whose train such passengers or freight are carried, regular tariff rates or fares from and to the points between which it or they transport such diverted traffic, except that if the carrier accepting such diverted traffic is participant in a joint tariff in which the diverting line is also a participant and under which the diverted traffic is being moved, settlement may be made on basis of the division of the through joint rate or fare. (See rulings 83, 138, 146, 147, and 183.) 692 Conference Rulings. (b) If, because of such blockade, a carrier's train is de- toured over the line of another carrier, or special train is ar- ranged for movement of the interrupted traffic, the tariff rates or fare, if there be any for such movement, must be applied In the absence of such tariff regulations compensation should be agreed upon. (See ruling 138.) This rule does not apply in cases of congested lines due to lieavy traffic or ordinary causes. (See Woodwarjl <& Dickerson y.L. cO N. R. B. Co., 15 I. C. C, 170. March 18, 1907. 214.ROUTING AND MISROUTING FREIGHT.— (a) Al- leged neglect or errors on part of agents of carriers in misrout- ing shipments lead to numerous claims of overcharge, many of which are meritorious. The lawful charge on any shipment is the tariff rate via the route over which the shipment moves. No carrier can lawfully refund any part of the lawful charge ex- cept under authority so to do from the Commission or from u court of competent jurisdiction. (See rulin 286-a.) That thor- ough understanding and uniform practice may be had m this connection, the Commission issues the following administrative ruling : (b) In order to secure desired delivery to industries, plants, or warehouses and avoid unnecessary terminal or switching charges, the shipper may direct as to terminal routing or de- livery of shipments which are to go beyond the lines of the initial carrier ; and his instructions as to such terminal delivery must be observed in routing and billing such shipments. The car- rier may not disregard the instructions of shippers as to in- termediate routing, except when tariff of initial line reserves the right to carrier to dictate intermediate routing. When such reservation is made in tariff, (1) where all-rail rates and rail- and-water rates are available the agent of carrier must have the shipper designate which of the two he wishes to use ; and (2) the agent must not route shipment via a route that will be more expensive to the shipper than the one desired by him, or that does not furnish substantially as good and expeditious service. If carrier is not willing to observe the intermediate rout- ing instructions of shii)per it must not execuie bill of lading Conference Rulings. 09.'] contaming such routing. Carriers will be held responsil)le for routing shown in bill of lading. (See rulings 190, 284, and 316. Amended hy ruling 321.) (c) In the absence of specific through routing by shipper, which carrier is willing to observe, it is tlie duty of tlie agent of the carrier to route shipment via the cheapest rea.sona])le route knoAvn to him of the class designated by the shipper — that is, all-rail, or rail-and-water — and via which he has rates which he can lawfully use. If a foreign car is available which under rules as to car service must be sent via a particular line or route over which a higher rate obtains, agent must explain to shipper that fact and allow shipper to elect whether he will use that car at the higher rate or wait for another car. If shipper elects to use the car at the higher rate, agent should so note on bill of lading. If agent is in doubt, he should secure information from proper officers of traffic department. It is important that agents at initial points be able to, and that they do, quote correct rates and give correct routings. (See rulings 91. 140, 190, 284, 316; also United Port- land Cement Co. v. M. P. Rif. Co., U. R. Op. A-321; Lord & Bushnell Co. v. 31. C. R. R. Co., 22 I. C. C, 463; Meeds Lumber Co. V. A. & V. Ry. Co., 38 I. C. C. 679; Donahue-Stratton Co. V. G. M. & St. P. Ry. Co., 38 I. C. C, 739; and Chattanooga Implement & Mfg. Co. v. L. & N. R. R. Co., 40 I. C. C. 146.) (d) If a carrier's agent misroutes a shipment and thus causes extra expense to the shipper over and above the lawful charges via another available route of the class designated by shipper — that is, all rail or rail and water — over which such agent Iiad applicable rates which he could lawfully use, and responsibility for agent's error is admitted by the carrier, such carrier may, as to shipments moving subsequent to ]\Iarch 18, 1907, adjust the overcharge so caused by refunding to shipper the difference be- ween the lawful charge via the route over which shipment moves and what would have been the lawful charges on same shipment at the same time via the cheaper available route of the class de- signated which could have been lawfully used. Such refund must in no case exceed the actual difference between the lawful charges via the different routes as specified, and must in every instance be paid in full by the carrier whose agent caused such overcharge and must not be shared in by or divided with any other carrier, corporation, firm, or person. This authority is limited strictly ()9i Conference Rulings. to the cases specified and to the circumstances recited and does not extend or apply to instances in which soliciting or commercial agents of carriers induce shippers to route shipments over a parti- cular line via which a higher rate obtains than is effective via some other line. (See rulings 93 and 286; also Duluth & Iron Range R. R. Co. v. C, St. P., 31. d' 0. Rrj. Co., 18 I. C. C, 485.) (e) The rule is intended to apply to cases in which the agents who bill or actually forward or divert shipments through error or oversight send the shipments via routes that are more ex- pensive than those directed by shippers or available in the ab- sence of routing instructions by shippers. It must not be used in any case or in any way to "meet" or "protect" a rate via another route or gateway via which the adjusting carrier has not in its tariffs at the time the shipment moves rates which are available and lawfully applical)le thereto, nor as a means or device by which to evade tariff rates or to meet the rate of a competing line or route, nor to relieve shipper fro.m responsibility for his own routing instructions. November 15, 1907. (f) The prerequisites to any refund under this rule are ad- mission by carrier of responsibility for its agent's error in mis- routing the shipment, and such carrier's willingness to bear the extra expense so caused, without recourse upon any other car- rier for any part thereof. If, therefore, the error is discovered before the shipment has been delivered to consignee or before charges demanded upon same have been paid, the carrier ac- knowledging responsibility for the error may authorize the delivering carrier to deliver shipment upon payment of the charges that would have applied but for the misrouting and to bill upon it for the extra charge; or, if the shipment has been delivered undercharged before the error is discovered, the car- rier that acknowledges responsibility for the error may pay the undercharge to the carrier that delivered the shipment instead of requiring it to collect the undercharge from shipper, to be refunded to shipper. (Interpreted by ruling 198.) Complete distinction nmst be observed between cases to whict this rule applies and those provided for under ruling 217. Conference Rulings. 695 (g) Shippers must bear in mind that there is a limit beyond which an agent of a carrier could not reasonabl.y be expected to know as to terminal delivery or local rates at distant points and on lines of distant roads to or with which he has no specific joint through rates. Consignors and consignees should cooperate with agents of carriers in avoiding misunderstandings and errors in routing and must expect to bear some responsibility in con- nection therewith. (See What Cheer Tool Co. v. K. & M. By. Co., U. R. Op. 2159, and Ishell & Co. v. L. ^. & M. S. Ry. Co., 19 I. C. C, 450.) March 9, 1909. (h) If, under this rule, a carrier adjusts a claim for misrout- ing and later learns that the responsibility for misrouting actu- ally rests upon another carrier, such other carrier may voluntarily reimburse the carrier that made the payment in the full amount of such payment, or the matter may,, if necessary, be referred to the Commission for determination of the question of which carrier is responsible for the error. April 6, 1909. (i) Restated in ruling 474c. March 18, 1907. 215. COMBINATION OF JOINT RATI] OR FARE TO COM- MON POINTS AND LOCAL RATE OR FARE BEYOND.— (a) In order to secure uniformity in practice and understand- ings and to remove the cause of many complaints, the Commis- sion decides that when a joint through rate or fare is the same to two or more points and rate or fare on through shipment or passenger to local station to which no specific joint through rate or fare applies is made up by combination of such joint through rate or fare to common points and local rate or fare beyond, the rate or fare for through shipment or passenger must be Idetermined by calculating the joint through rate or fare to the point from which the lower local rate or fare applies to point of destination and adding thereto such local rate or fare. For example : Joint through tariff names the same rates or fares 696 Conference Rulings. from certain eastern points to Chicago and Milwaukee. Ti .^hip. ment or passenger is destined to a point to which the local rate or fare is less from Milwaukee than from Chicago, the rate or fare applied should be the joint through rate or fare to ^Milwaukee plus tlie local rate or fare from Milwaukee to destination, and unless the lines of delivering carrier reach both Chicago and Milwaukee the shipment or passenger should move via ^Milwaukee. If the local rate or fare from Chicago to point of destination is lower than from l\Iilwaukee, the rate or fare should be the joint through rate or fare to Chicago plus the local rate or fare from Chicago to destination, and unless the lines of delivering carrier reach both Mihvaukee and Chicago the shipment or passenger should move via Chicago. (See Larrowe Milling Co. V. C. & X. W. Ry. Co., 17 I. C. C, 443 and 548; also Relilerg & Co. V. Erie R. R. Co., 17 I. C. C, 508.) (b) Rates or fares for outbound through movements from such local stations and under like circumstances must be applied on the same basis where the joint through rates or fares are the same from two or more points. (c) This does not authorize any carrier to apply to trans- portation over its lines any rate or fare except those stated in its own lawfully published tariffs or in the lawfully published joint tariffs in which it has concurred. If a carrier desires to "meet the rate" of a competitor, it must do so by lawfully in- cluding in its own tariffs such specific rates or fares, proportional or otherAvise, as may be necessary so to do. (See rulings 195 and 214.) (d) It is suggested that shippers can assist in avoiding mis- takes and misunderstandings by calling attention to the rate that should apply in such cases as come under this rule by in- dicating it on shipping bill in connection with routing instruc- tions; for instances, "Rate on ^lilwaukee." This is, however, merely a suggestion, and does not relieve the agents of carriers from the responsibility of quoting and applying the correct lawful rate. (e) This rule does not apply where a shipment has reached its destination as originally given by shipper and has been re- consigned, except when tariff contains reconsigning rule that provides for such application, Conference Rulings. 697 (f) This rule must not apply in any case wiiere there is an applicable specific joint through rate or fare from point of origin to point of destination. (See Rule 55, Tariff Circular 18-A.) March 25, 1907. 216. FRP:E transportation of officers or EM- PLOYEES OF OI\lNIBUS OR BAGGAGE EXPRESS COM- PANIES. — In its decision on the petition of the Frank Parmelee Company (Exchange of Free Transportation, 12 I. C. C. 39) the Commission hold that a carrier subject to the act can not lawfully give free transportation to officers, agents, or employees of an omnibus or baggage express company, except, as authorized in the act, for baggage agents who meet passenger trains at some point near the larger cities and go through the trains to arrange for transfer of passengers and their baggage. (See ruling 95a, par. 3, and 95g.) May 6, 1907. 217. RETURN OF ASTRAY SHIPMENTS.— Instances occur in which, through error or oversight on the part of some agent or employee, a shipment is billed to an erroneous destination or is unloaded short of destination or is carried by. The Com- mission is of the opinion that in hon of Tariff Circular 18-A.) 720 Conference Rulings. (b) The law imposes upon carriers the obligation of arranging to every reasonable extent for through carriage and through shipment. Neither the burden of following his shipment to a ^connecting point between two carriers and there transferring it, nor of bearing the expense of such transfer, can be laid upon the shipper. It is not deemed reasonable that in a case of this kind the shipper should be required to pay higher charges than he would have paid had the initial carrier furnished the equipment that is provided for in its tariif and that was ordered by the shipper. The carriers in the different classification territories ought to have, and should provide at the earliest practicable moment, a uniform rule on this subject. (c) It is believed that where the initial carrier provides in its tariffs that if for its own convenience it furnishes a car larger than that ordered by the shipper, it will be used upon the basis of minimum weight applicable to the car ordered, and the con- necting carrier to or over whose lines such shipment is moved has not such provision in its tariff, the initial carrier should note upon the bill of lading and upon the way bill or transfer bill, which accompanies delivery of a shipment to its connections, the fact that car of certain size was ordered and car of certain size for its own convenience furnished by the carrier to be used on the basis of the minimum weight applicable to the car ordered and that connecting carrier, receiving such notice on the way bill or transfer bill and not having provision in its tariff which permits the use of the car on the basis of the lower minimum weight, should transfer the shipment into car of the size or capacity ordered by the shipper or into car to which the same minimum weight applies, without additional expense to the shipper. This ruling outlines the policy which the Commission will follow in cases of this nature which may be brought before it. It is, of coui-se, understood that shipper may not demand any car that is not provided for in the initial carrier's tariff. (See ruling 339 ; also Gisholt Machine Co. v. C. & X. W. Ry. Co., U. R. Op. A-618.) April 4, 1910. 275. HOURS OF SERVICE LAW— TRAIN BAGGAGE- MEN. — The provisions of section 1 of the liours of service law Conference Rulings. 721 apply to train baggagemen who are employees of the railway company and who are required- by the rules of the company to perform or to hold themselves in readiness, when called upon, to perform any duty connected with the movement of any train. (See rulings 74 and 287.) 278. DEMURRAGE CHARGES— TARIFF AUTHORITY THEREFOR. — A consignor while loading cars at the point of origin detained them for several days before they were billed out for movement to interstate destinations. The initial carrier issued a tariff providing for demurrage, but the tariff naming the rate applicable on the movements neither provided demurrage charges nor referred to the initial carrier's tariff where such charges were specified : Held, That there was sufficient tariff \authority for the collection of the charges by the initial carrier, 277. ERROR IN THE ISSUANCE OF PASSENGER TICK- , ETS. — The Commission adheres to its formerly expressed view (that connecting lines are entitled to divisions according to the transportation which they honor on presentation by the traveler, and therefore that a carrier whose agent had mfide an error in not properly punching half-fare and lower-class tickets must bear the full burden of the mistake. (See rulings 69, 113, 167, 247, 266, and 481.) 278. FREE TRANSPORTATION TO TRAVELING SECRE- TARIES OF Y. W. C. A.— Under the provisions of the act free or reduced rate transportation may not lawfully be accorded to traveling secretaries of a Young Woman's Christian Association. April 5, 1910. 279. APPLICATION OF RATES ON ARTICIiES SOLD UNDER TRADE NAMES.— A compound described under its technical chemical name in the tariff carrying the rate is of fered for shipment and sold by a manufacturer under a trade name : Held, That while the packages may bear ihe trade name of the article, the shipper is not entitled to the rate applicable on the specified compound unless the packages, as tendered for transportation, are also labled so as to indicate that they con- tain the compound. 722 Conference Rulings. 280. ESTIMATED AVEIGHTS PER PACKAGE.— Sometimes a trausportation rate is stated to be a certain sura per package, and sometimes the rate is stated in cents per 100 pounds, and it is provided that the package will be taken at a stated estimated weight. Changes in size or dimensions of packages and disagree- ments as to the size or dimensions upon w^hich the estimated weight was fixed have caused troublesome complications. In so far as, and whenever, it is practicable, the size and dimensions of such packages should be clearly and accurately described and de- fined in the tariff. April 11, 1910. 281. A CONCURRENCE BY ONE CARRIER IN THE TAR- IFFS OF ANOTHER DOES NOT LEGALIZE THE USE BY THE FORMER OF THE LOCAL RATES OF THE LAT- TER. — A tariff published by one carrier in addition to certain joint through rates also named local rates between two points on its line that were also served by the lines of another and con- curring carrier: Held, That the local rates of the carrier that published the tariff could not be recognized as the rates of the concurring carrier on local movements between the two points in question. 282. JOINT RATE REDUCED TO THE SUM OF THE LO^ CALS, MINIMUM WEIGHT BEING INCREASED. (Rescind- ed by ruling 338.) May 10, 1910. 283. DRAYAGE CHARGE RESULTING FROM MISROUT- ING. — Modified and restated in ruling 509. 2&4. INTERPRETATION OF MISROUTING RULING NO. 214. (Superseded by ruling 316.) 285. FREE TRANSPORTATION FOR THE REMAINS OF AN EX-EMPLOYEE.— The Commission finds no warrant in law for holding that free transportation may be accorded to the remains of an ex-employee of a carrier who resigned from the service some time prior to his death. (Compare ruling 193.) Conference Rulings. 723 286. ADJUSTMENT OF CLAIMS FOR DAMAGES RE- SULTING FROM THE MISROUTING OF FREIGHT.— (a) The Commission holds that it has exclusive jurisdiction over claims for damages arising from the misrouting of freight. (See rulings 139 and 214.) (6) The statute of limitations embodied in section 16 of the act to regulate commerce, as amended, governs misrouting claims, and thereunder the Commission is without jurisdiction to take cognizance of claims presented more than two years after the delivery of shipments at destination. (See ruling 139; also Phillips V. Grand Trunk By., 236 U. S., 662.) (c) If a connecting line accepts a shipment at the junction point without routing instructions, it will be lield responsible for any excessive charges that may directly accrue from its error in forwarding the shipment to destination via any other than the cheapest available route. (Amending rulings 137 and 199. See Duluth & Iron Range R. R. Co. v. C, St. P., M. & 0. Rij. Co., 18 I. C. C, 485; and American Lumber d' Export Co. v. A., T. & N. R. R. Co., 42 I. C. C, 260.) (d) (Restated in ruling 509.) (e) The Commission will exercise jurisdiction to award dam- ages as against the carrier guilty of misrouting to the extent of the additional cost thus imposed on the delivering carrier. (/) (Amended and restated in ruling 474c.) March 16, 1908. 287. THE HOURS OF SERVICE LAW.— (a) The provisions of this act apply to all common carriers by railroad in the Dis- trict of Columbia, or in any Territory of the United States, or engaged in the movement of interstate or foreign traffic ; and to all employees of such common carriers who are engaged in or connected with the movement of any train carrying traffic in the District of Columbia, or in any Territory, or carrying interstate or foreign traffic. (See ruling 56.) {h) Sec. 2. The requirement for ten consecutive hours off duty applies only to such employees as have been on duty for sixteen consecutive hours. The requirement for eight consecutive hours in the aggregate out of a twenty-four hour period. Such duty sixteen consecutive hours but have been on duty sixteen 724 Conference Rulings. hours in the aggregate out of a twenty-four hour period. Such twenty-four hour period begins at the time the employee first goes on duty after having had at least eight consecutive hours off duty. The terms ''on duty" includes all the time during which the employee is performing service or is held responsible for performance of service. An employee goes "on duty" at the time he begins to perform service, or at which he is required to be in readiness to perform service, and goes "off duty" at the time he is relieved from service and from responsibility for performance of service. (Qualified l)y ruling 74.) (c) The act does not specify the classes of employees that arc subject to its terms. All employees engaged in or connected with the movement of any train, as described in section 1, are within its scope. Train dispatchers, conductors, engineers, telegraphers, firemen, brakemen, train baggagemen, who, by rules of carriers, are required to perform any duty in connection with the move- ment of trains, yardmen, switch tenders, tower men, block-signal operators, etc., come within the provisions of the statute. (Quali- fied by rulings 108 and 275 ; see also ruling 88. ) (d) The proviso in section 2 covers every employee who, by the use of the telgraph or telephone, handles orders pertaining to or affecting train movements. In order to preserve the ob- vious intent of the law this provision must be construed to in- clude all employees who, by the use of an electrical current, han- dle train orders or signals which control movements of trains. (See ruling 88.) (e) The prime purpose of this law is to secure additional safety by preventing employees from working longer hours than those specified in the act. Therefore a telegraph or telephone oper- ator who is employed in a night and day office may not be requir- er to perform duty in any capacity or of any kind beyond nine hours of total service in any twenty-four hour period. (See United States v. G. R. & I. By. Co., 224 Fed. Kep., 667.) (/) The phrase "towers, offices, places, and stations" is in- terpreted to mean particular and definite locations. The pur- pose of the law and of the proviso for nine hours of service may not be avoid'ed by erecting offices, station, depots, or buildings in close proximity to each other and operating from one a part of the dav while the other is closed and vice versa. Conference Rulings. 725 The statute is remedial in its intent and must have a broad construction so that the purpose of the Congress may not be defeated.. (g) The Commission interprets the phrase "continously operated night and day" as applying to all offices, places, and stations operated during a portion of the day and a portion of the night, a total of more than thirteen hours. The phrase "operated only during the daytime" refers to stations which are operated not to exceed thirteen hours in a twenty-four hour period, and is not considered as meaning that the operator thereat may be employed only during the daytime (h) The act provides that operators employed at night and day stations or at daytime stations may, in case of emergency, be required to work four additional hours on not exceeding three days in any week. Manifestly, the emergency must be real and one against which the carrier can not guard. ''In any week" is construed to mean in any calendar week, beginning with Sunday. (?") (The Commission decided in conference on April 9, 1917. to rescind this paragraph because the question upon which it was made has since been judicially interpreted and is now pending in the courts upon appeal.) (j) It will be noted that the penalties for violation of this act are against the "common carriers, or any officer or agent there- of, requiring or permitting any employee to go, be, or remain on duty," in violation of the law. It is clear that the officers and agents of carriers who are liable to the penalties provided in the act are those who have official direction or control of the em- ployees ; and that the penalties do not attach to the employees, who, subject to such supervision or control, perforin the service prohibited. (k) Sec. 4. To enforce this act the Interstate Commerce Com- mission has all the powers which have been granted to it for the enforcement of the act to regulate commerce, including authority to appoint employees, to require reports, to examine books, papers, documents, to administer oaths, to issue subpoenas, and to interrogate witnesses. 726 CONFEEENCE. EuLlNGS. Octoher 3, 1910. 288. COMPETENCY OF RAILROAD EMPLOYEES— CON- DITION OF SIGNAL DEVICES.— Upon inquiry: Held, That, except in cases of accident, the Commission has no authority under the act to regulate commerce to look into the competency of railroad employees or the physical condition of block signals, and makes no general investigations of that nature. Octoher 4, 1910. 289. POSTING NAMES OF RESIDENT AGENTS AT BLIND SIDINGS. — The act requires a carrier to post the name of its resident agent in every office, warehouse, depot, or station building at which freight is received. But upon inquiry : Held, That this is not necessary at blind sidings where there is no station agent or any station building at which freight is received. (See ruling 86.) Octoher 10, 1910. 290. STATEMENT OF SEX OF CHILDREN ON APPLICA- TIONS FOR PASSES. — Upon inquiry by a carrier whether un- der Conference Biding 95 it is necessary that applications by one carrier on another for exchange transportation should show the sex of the child or children for whom free transportation is requested: Held, That an application in behalf of "John Smith and children" is not a sufficient compliance with the rule; it should be made in the name of "John Smith, one son, and two daughters," so that the representation that they are the children of the person named may affirmatively appear. Octoher 11, 1910. 291. PARAGRAPH 5 OF SECTION 15 OF THE AMENDED ACT DOES NOT APPLY TO TELEGRAPH COMPANIES.— Upon inquiry: Held, That the paragraph of section 15 of the amended act to regulate commerce giving the shipper the right to route his shipment does not apply to telegraph companies. (Also see Routing.) Conference Rulings. 727 November 7, 1910. 292. ALLOWANCES FOR FLOOR RACKS JN REFRIGER- ATOR CARS ANALOGOUS TO GRAIN-DOOR ALLOW- ANCES. — Certain carriers filed tariffs providing that when re- frigerator cars without floor racks are set for loading, and ship- pers are required to furnish floor racks to protect the freight loaded, allowances will be made equal to the cost of the rack, but not to exceed $2.50 per car. The question of the lawfulness of such tariffs being under consideration : Held, That the prin- ciple involved is the same as that relating to grain doors furnish- ed by shippers. (See rulings 19, 78, 132, 267, and 360.) 29'3. RATES OR FARES PUBLISHED SUBSEQUENT TO FEBRUARY 17, 1911, IN VIOLATION OF SECTION 4 AS AMENDED, — Subsequent to February 17, 1911, any rate, fare, or charge maintained or imposed in violation of the long-and- short-haul provision of the fourth section of th« act as amended, which rate, fare, or charge is not covered by an order of the Commission granting relief from the provisions of the section, or by pending application for such relief, will be held not to bo brought into conformity with said section by a change in classi- fication ; cancellation of commodity rate leaving class rate or combination rate to apply; cancellation of a rate with provision that in lieu thereof a rate in some other tariff shall apply; cor rection of error in tariff; addition or elimination of routes with- out change in list of participating carriers ; or by any other change which does not leave the rate, fare, or charge free from conflict with the law. (See rulings 299, 304, 318.) 294. TRANSPORTATION FROM FOREIGN COUNTRIES NOT ADJACENT THROUGH THE UNITED STATES TO AN ADJACENT FOREIGN COUNTRY.— (Withdrawn No- vember 11, 1912; see Seymour v. M. L. & T. R. R. & S. S. Co., 35 I. C. C, 492.) 295. RATES BASED ON VALUE OF MERCHANDISE. — Carriers may lawfully establi.sh schedules of »'harges applica- ble to a specific commodity and graduated reasonably according to value. When such rates are published shippers are entitled to the rate corresponding to the actual value of the property of- fered by them for transportation. Shippers are not entitled un- 728 Conference Rulings. der such rates to understate the actual value of shipments for the purpose of obtaining the rate applicable upon articles of less value. The valuation stated to carriers should correspond witli the actual value as shown by invoices, etc. Shippers misstating? the vahie of property for the purpose of obtaining the rate ap- plicable to property of less value are guilty of misbilling and are subject to prosecution under section 10 of the act to regulate commerce. (See ruling 58; compare ruling 188: see also The Cummin's Amendment, 33 I. C. C, 696 ; and Express Bates, Practices, Accounts, and Revenues, 43 I. C; C, 510.) November 8, 1910. 296. POWER TO REQUIRE ADDITIONAL PASSENGER TRAIN SERVICE. — {a) Upon complaint of a resident at a suburban station that sufficient trains are not run to and from "New York City during the morning and evening hours to ac- commodate commuters : Held, That the Commission is without authority to require the running of additional trains. (6) Upon complaint of the discontinuance of a daily accom- modation train between Washington and a rural commiuiity 27 miles distant, Held, That the Commission is without power to grant relief. 297. FREE AND REDUCED. RATE TRANSPORTATION OF PERSONS TRAVELING AT THE EXPENSE OF STATE OR TERRITORIAL GOVERNMENTS.— Cox/ercnce Bulincj 218 is confined to movements at the instance and expense of the United States. The Commission finds nothing in the law author- izing free or reduced rate transportation of persons, other than indigents, traveling at the expense of a state or territorial gov- ernment. (See ruling 208-e and 452.) November 14, 1910. 298. THROUGH FARES HIGHER THAN THE COMBI- NATION OF INTERMEDIATE FARES.— Upon inquiry whether the prohibition against charging a greater compensation as a through charge than the aggregate of the intermediate charges subject to the provisions of the act is to be construed as meaning that fares must be made not higher than the lowest pos- Conference Rulings. 729 sible combination of intermediate fares, and if not, upon what basis they may be constructed : Held, That the fares must be constructed upon the basis of being no higher than the lowest combination of fares that are published and filed as available for interstate travel or in making up interstate fares. If a car- rier desires to exclude from this consideration any of its purely intrastate fares it must refrain from publishing and filing such intrastate fares as available for use in making up interstate fares. (See Vnited States v. N., C. & St. L: Ry., U. R. Op. A- 691 ; and V),ited States v. B. d- 0. R. R. Co., 15 I. C. C, 470.) December 17, 1910. 299. APPLICATION OF SECTION 4, AS AMENDED JUNE 18, 1910, TO EXPORT AND IMPORT RATES.— (a) Inland export and import rates are subject to the provisions of the act and within the jurisdiction of the Commission. (i) The fourth section of the amended act forbids carriers subject thereto, without authority from the Commission in ac- cordance with said section, to charge more for the transportation of a like kind of export or import traffic for a shorter than for a longer haul over the same line in the same direction; that is, as we understand the law, the validity of a rate under this sec- tion is determined by comparison of an export rate with an ex- port rate, or an import rate with an import rate. (c) So far as the fourth section is concerned, carriers are not required in the first instance to establish export and import rates which shall be measured and limited by domestic inter- state rates between the same points of origin and destination in the United States ; but as export and import rates, as well as domestic interstate rates, are subject to the provisions of the act and the jurisdiction of the Commission, it is clear that the rea- sonableness of any of these rates under the provisions of sec- tion 1, and questions of discrimination under the third section, may all be considered and the Commission may condemn any discrimination in export and import rates, upon comparison with those applicable on domestic interstate traffic, to the extent that the same may be found unjust or unreasonable in any particular case upon investigation and full hearing. 730 Conference Eulings. (Section 4 as amended is also interpreted in rulings 293, 304, 318. See Import Rates on Manganese Ore, 12 I, C. C, 666.) January 14, 1911. 300. BROKERAGE CHARGES BY EXPRESS COMPA- NIES ON SHIPMENTS PROM ABROAD.— A suit case con- signed from London in care of an express company at New York City for further transportation inland by express was appraised by the customs officials, with its contents, at the sum of $363. Upon complaint of a charge of $3 exacted by the express com- pany for its services in clearing the shipment ihrough the cus- toms house, no scale of such charges being filed with this Com- mission, it was Held: That brokerage charges of this nature are not within the jurisdiction of the Commission, not being a part of the transportation service. (See rulings 7, 221, 300, and 444.) Fehruary 13, 1911. 301. EMPLOYEES ON PRIVATELY OWNED OR CHAR- TERED CARS. — Upon inquiry: Held, That porters, cooks, or waiters on privately owned or chartered cars moving under tariff authority may be carried as employees. 302. TELEGRAMS RELATING TO SHIPMENTS.— Tele- gTaphic instructions or incpiiries made by shippers to or of a carrier in relation to their shipments may not properly be paid for by the carrier unless so provided in its published tariffs; a telegram sent by the carrier to the shipper relating to his traf- fic, and his reply thereto, pertain to the business of the carrier and may be sent at its expense. (Construed by rulings 327 and 351; see rulings 363, 480.) Fehruary 22, 1911. 303. REDEMPTION OF TICKETS.— Under appropriate provision in its tariffs a carrier may redeem the unused portion of a round-trip ticket on the basis of a lower round-trip fare to a point directly intermediate, provided the latter fare was law- fully available for the journey as actually commenced and con- cluded ; or it may, under a tariff provision to that effect, ex- change a round-trip ticket to a point directly intermediate for Conference Bulings. 731 a round-trip ticket available at the same time to a more distant point, upon collecting the difference in the fares of the two tickets. (Affirming ruling 265; see also rulings 76, 115.) March 13, 1911. 304. APPLICATION OF SECTION 4 AS AMENDED JUNE 18, 1910.— (a) The fourth section applies to all rates and fares, but in determining whether its provisions are con- travened rates and fares of the same kind should be compared with one another; that is, transshipment rates should be com- pared with transshipment rates; proportional rates with pro- portional rates; excursion fares with excursion fares; and commutation fares with commutation fares. It would not be in violation of the fourth section, for instance, if a proportional rate to or from a given point were lower than the regular rate to or from an intermediate point, nor if the commutation fare to or from a more distant point were lower than the regular fare to or from an intermediate point. (Rulings 309, 310. See Southern Illinois Millers Asso. v. L. & N. R. R. Co., 23 I. C. C, 673; and Rates on Grain and Grain Products to Texarkana, Ark., 29 I. C. C, 36.) (h) A proportional rate is defined as one which applies to part of a through transportation which is entirely within the jurisdiction of the act to regulate commerce ; that is, the bal- ance of the transportation to which the proportional rate applies must be under a rate filed with this Commission. A rate to a port for shipment beyond by a water carrier not subject to the provisions of this act would not be a proportional rate. (See Crescent Coal & Mining Co. v. C. & E. I. R. R. Co., 24 I. C. C, 155.) The foregoing holding is not intended to approve the lawful- ness of any existing transshipment rate. (c) An excursion rate is one which provides for a return to the initial point or some corresponding point. (d) Wliere from the absorption of a switching charge it re- sults that the total transportation charge from a more distant point to the point where the property is delivered is less than the total transportation charge from or to an intermediate point the fourth section is violated. Owing, however, to the very gen- 732 Conference Rulings. eral practice of absorbing switching charges from competitive and not from noncompetitive stations, and in view of the fact that much benefit and little complaint results, the Commission will, by general order, permit a continuance of this practice, re- serving for consideration and determination individual cases which may require special consideration. (Such an order was entered March 20, 1911.) (e) If a carrier has been given authority to maintain from or to noncompetitive intermediate points rates higher than those from or to more distant competitive points and a new intermedi- ate station is opened, rates from or to such intermediate station which are the same or in harmony with those authorized may be established by the carrier without special authority from the Commission. (/) If a carrier is authorized to maintain rates to or from a given point which are not in conformity with the fourth sec- tion, it may establish rates upon branch lines connecting with the main line at these points which are higher than such inter- mediate rates by arbitraries or by the branch-line locals, without special authority from the Commission. (Section 4 as amended is also interpreted in rulings 293, 299, 318.) 305. APPLICATION OF THE AMENDED ACT TO TELE- GRAPH AND TELEPHONE COMPANIES.— (a) Each and every telegraph and telephone company which transmits mes- sages over its line or lines from a point in one state, territory, or district of the United States to any other state, territory, or dis- trict of the United States, or to any foreign country, is subject to the provisions of the act. (&) If a telegraph or telephone company, the line of which is wholly within a single state, territory, or district of the United States, receives a message within such state, territory, or district of the United States, for transmi.ssion to a point without the state, territory, or district of the United States, which it trans- mits over its line to another point in the same state, territory, or district of the United States and there delivers it to an inter- state line for transmission to destination, the first-named com- pany by virtue of its participation in this transcation, is not made subject to the provisions of the act ; uidess there be an Conference Rulings. 733 arrangement between that company and its connection for through continous transmission of snch messages, in which latter case all of the participating companies in such through continous transmission are sub^'ect to the provisions of the act. (c) If two or more lines are connected so that a person within one state, territory, or district of the United States talks with a person at a point without such state, territory, or district of the United States, or so that a message is transmitted directly from a point within a state, territory, or district of the United States to a point without the same, the transmission of messages in this manner constitutes interstate commerce and brings all of the par- ticipating lines within the purview of the act. (d) It follows that telegraph and telephone companies sub- ject to the act, as above indicated, must conform to the provi- sions of section 1 thereof, requiring that all of their rat&s and charges for the transmission of interstate messages shall be rea- sonable and just, and that such companies may lawfully issue franks covering free interstate service or may grant free in- terstate service to the same extent, and subject to the same limitations as other common carriers under the provisions of said section. (See rulings 95a, par. 2, 161, 219, and 364.) (e) Such telegraph and telephone companies subject to the act are also governed by the provisions of section 3 forbidding any undue or unreasonable preference or advantage by rebates or otherwise, or any undue or unreasonable prejudice or disad- vantage in any respect whatsoever, and are subject to the law- ful orders of the Commission made pursuant to the provisions of section 15 of the act, and also of section 20 thereof respecting the keeping of accounts and memoranda and the making of re- ports to the Commission. April 3, 1911. 306. STATUTE OF LIMITATIONS NONOPERATIVE AS BETWEEN CARRIERS.— Before the expiration of two years a delivering line discovered and at once refunded an overcharge ; upon demand made by it after the two years had expired a con- necting line declined to repay its share, on the ground that the statute had run : Held, That in such cases the statutes does not run as between carriers. (See rulings 10, 220 j, and 307.) 734 Conference Rulings. 307. CLAIMS BARRED BY THE STATUTE OF LIMITA- TIONS. — Overlooking a higher through rate, chargas were col- lected on the sum of the intermediate rates. After two years had expired the through rate was reduced to that basis and still later the balance of the through rate legally in effect on the date of -ithe shipment was collected. Upon presentation of the claim some months later : Held, That it was barred by the statute, and that the case is controlled by Blmn Lumher Co. v. 8. P. Co., 18 I. C. C, 430. (See rulings 10, 220i, 306, and 508.) 308. USE OF FREE TRANSPORTATION BY RAILROAD EMPLOYEE WHILE CONNECTED WITH MUNICIPAL I OFFICE. — Upon inquiry : Held, That a railroad employee on leave of absence for the purpose of filling a term in a public office, or to engage in other business, is not entitled during such period to free passes either for himself or his family. (See rul- ing 208d) 309. PASSENGER FARES UNDER THE FOURTH SEC- TION. — Held, That carriers may not disregard the fourth sec- tion in order that passenger fares may be stated in multiples of five. (See ruling 304a.) 310. PASSENGER FARES UNDER THE FOURTH SEC- TION. — Held, That in determining whether the provisions of the fourth section are contravened, mileage, commutation, party rate, and half fares for children should be compared only with fares of the same character. (See ruling 304a.) April 4, 1911. 311. FREE TRANSPORTATION OP PROPERTY FOR COUNTY AUTHORITIES.— (Restated in ruling 452.) 312. TERMINAL COMPANIES SUBJECT TO ACT.— Up- on inquiry: Held, That terminal companies miLst file statistical reports as required by the Commission. April 10, 1911. 313. DEIMURRAGE RULES.— (See Code of National Car Demurrage Rules indorsed by the Connnission January 17, 1916.) Conference Rtjlings. 735 May 1, 1911. 314. COLLECTION OF UNDERCHARGES.— The law re- quires the carrier to collect and the party legally responsible to pay the lawfully established rates without deviation therefroiu. It follows that it is the duty of carriers to exhaust their legal remedies in order to collect undercharges from the party or par- ties legally responsible therefor. It is not for the Commission, however, to determine in any case which party, consignor or consignee, is legally liable for the undercharge, that being a question determinable only by a court having jurisdiction and upon the facts in each case. (Superseding rulings 3 and 187. See also rulings 16 and 156 and Y. & M. V. B. Co. v. Zemurray, 238 Fed., 789.) See interpretation ruling 515. 315. USE OF INTRASTATE MILEAGE BOOKS ISSUED IN EXCHANGE FOR ADVERTISING.— A state statute per- mits the exchange of intrastate mileage books for advertising. Upon inquiry: Held, That such books may not be used upon any part of an interstate journey. (See C, I. & L. By. Co. v. United States, 219 U. S., 486.) 310. CONFERENCE RULING 284 SUPERSEDED.— Upon inquiry as to the application of Conference Bulings 190 and 214 to routes made up partly of a car ferry : Held, That routes involving the transshipment of freight from a rail line to a water line or from a water line to a rail line are ' ' rail-and- water routes, ' ' and that routes composed of rail lines connected by car ferries over which the freight is ferried in the car constitute "car- ferry routes" and are understood to be included in the general term '^all-rail." (See HolUngshead & Blei v. P. & L. U. B. B. Co., 18 I. C. C, 193.) Held further, That where a shipper does not specify a par- ticular route or a rail-and-water route, the carrier's agent nuist consider ear-ferry routes as available in performing the duty of routing a shipment over the cheapest route. (See ruling 190, interpreting ruling 214.) May 2, 1911. 317. ERRORS IN TRANSMISSION OF TELEGRAPHIC MESSAGES.^Upon inquiry: Held, That the Commission has 736 CONFEEENCE RuLINGS. no jurisdiction over claims for damages due to alleged errors in the transmission of telegraphic messages. (See Unrepeated Mes- sage Case, 44 I. C. C, 670.) May 8, 1911. 318. APPICATION OF FOURTH SECTION WHEN ONE OR MORE POINTS ARE IN A FOREIGN COUNTRY.— The fourth section does not apply when the more distant point and the intermediate point are in a foreign country; nor when the point of origin and point of destination are both in the United States and the intermediate point is in a foreign country. (See rulings 293, 299, 304, and 447.) June 2, 1911. 319. FREE TRANSPORTATION OF WITNESSES.— Upon inquiry : Held, That a carrier may not lawfully issue free interstate transportation to one not otherwise entitled to it in order to enable him as a witness to attend a proceeding in court unless the carrier is a party thereto or has a direct legal interest in the result. (See ruling 414.) 330. FREE TRANSPORTATION OF INSTRUCTOR IN USE OF BOILER COMPOUND.— (Overruled by ruling 336. See ruling 169.) 321. SHIPPER MAY DIRECT TERMINAL ROUTING.— In view of the amendment to section 15 of the act, paragraph h of Conference Biding No. 214 is now amended so as to read as follows : (&) In order to secure desired delivery to industries, plants, or warehouses and avoid unnecessary terminal or switching charges, the shipper may direct as to terminal routing or deliv- ery of shipments which are to go beyond the lines of the initial carriers; and his instructions as to such terminal delivery must be observed in routing and billing such shipments. When ship- ments are accepted without specific routing instructions from shipper, where all-rail rates and rail-and-water rates are avail- able, the carrier's agent must have the shipper designate which of the two he wishes to use. Carriers will be held responsible for routing shown in bill of lading. (See rulings 190 and 316.) Conference Rulings, 737 322. SUSPENSION OF TARIFF SCHEDULES.— The au- thority conferred on the Commission by the amendatory act of June 18, 1910, to suspend schedules stating new individual or joint rates, fares, or charges, or any new individual or joint clas- sification, or any new individual or joint regulation or practice affecting any rate, fare, or charge, was not intended to withdraw from carriers the right to initiate their rates, fares, charges, and regulations and does not mean that in every case of advanced rates or charges the schedules should be suspended. The statute vests a discretion in the Commission in that regard and con- templates that it will be exercised in a judicial spirit. Except in cases where it acts on its own initiative the Commission will not ordinarily suspend the operation of a schedule unless the changes complained of are called to its attention at least 10 days before the effective date of the schedule, thus giving the Commission time in which to act intelligently and to avoid discriminations that might result from the improper suspension of a schedule. Requests for such action by the Commission should be made in the form of a complaint indicating the schedule by its I. C. C. number and specifically referring to the parts thereof as to which suspension is asked, together with reasonably detailed explana- tions as to the probable effect of the proposed new rates, fares, etc. June 8, 1911. 323. OFFSETTING OF UNDER OR OVER CHARGES.— It appearing that some confusion has been caused by the Com- mission's Conference Rnlings Nos. 48, 133, and its ruling of February 14, 1911, the following is issued in lieu of the three rulings above mentioned : The Commission has no authority to control the disposition of an overcharge. The carrier must charge no other than its law- ful rate and the failure to collect the full rate as to any ship- ment is a violation of the law, as is the collection of more than the full rate. The Commission declines to declare that an over- charge may be offset as against an uncollected undercharge ; such offset is not within the power of the Commission to author- ize or condemn. (See Illinois Cent. B. Co. v. W. L. Hoopes & Sons, 233 Fed. Rep., 135.) 738 Conference Rulings. June 19, 1911. 324. DIVISIONS ON COMPANY COAL.— Upon inquiry: Held, That it is unlawful for carriers to make special and dis- criminatory divisions of joint rates upon locomotive fuel as be- tween an originating or participating carrier and a purchasing carrier. In the division of joint rates a railroad must be treated precisely as any other shipper is treated, and the Commission will regard any special division as a device to defeat the pub- lished rate. All divisions upon fuel coal must be made in good faith without respect to the fact that one of the carriers is the purchaser of such coal. (See order if one of the carriers is the purchaser of such coal.) (See Rates an Railroad Fuel and Other Coal, 36 I. C. C, 1, and order in Divisions of Joint Rates on Railway Fuel Coal, 37 I. C. C, 265; also ruling 486.) June 20, 1911. 325. LEASE OF LAND BY SHIPPER FROM A CARRIER AT NOMINAL RENTAL UNLAWFUL.— Under a lease in which a nominal rental is reserved a private person has erected a grain elevator upon land belonging to an interstate carrier: Held, That the arrangement constitutes an undue preference. (See rulings 94 and 421.) October 9, 1911. 326. BAGGAGE CHECKED BY INITIAL LINE WITH ROUTING INADEQUATELY SPECIFIED.— Upon inquiry as to the legal propriety of a proposed agreement by an association of general baggage agents providing, in substance, that an in- termediate line shall forward to checked destination by the most direct route any baggage received by it not fully routed ; that the initial line shall report to the lines actually moving the baggage the amount of any excess baggage charges collected by it; and that in ease there is more than one station at destina- tion the initial as well as the terminal line shall be advised of the station at which the baggage may be found, it was. Held, That subject to such modified conclusions as may be required in the light of further information, the Commission sees no present objection to such rules if properly published in the tariffs. Conference Rulings. 739 October 10, 1911. 327. TELEGRAMS RELATING TO SHIPMENTS— RUL- ING 302 CONSTRUED.— Telegrams from a shipper relating to his traffic must be paid for by him, but a carrier may lawfully an- swer such a message at its expense. (See rulings 302, 351, 363, and 480.) November 6, 1911. 328. SAFETY APPLIANCES— CARS OF SPECIAL CON- STRUCTION. — Locomotives while equipped with snowplows or flangers are to be regarded as cars of special construction within the meaning of the order of March 13, 1911. 329. SAFETY APPLIANCES— ORDER OF MARCH 13, 1911, CONSTRUED.— The order entitled "United States Safety Appliance Standards," adojoted on March 13, 1911, is inter- preted with respect to the details mentioned as follows : 1. That gondola and ballast cars with swinging side doors at ladder locations may be considered as cars of special construc- tion. Ladders and handholds need not be applied to swinging side doors. A side vertical handhold shall be placed on corner post of such cars, as nearly as possible over sill step. 2. That high-side gondola and ballast cars with end plat- forms 18 inches or more in length may be considered as cars of special construction. Ladders shall be placed on such cars as prescribed for high- side gondola and hopper cars, with sill step under ladder, or as near under ladder as car construction will permit. Ends and side of cars to be equipped with handholds in the same manner as fiat cars. 3. Ladders — spacing of ladder treads. That the spacing of top ladder treads shall l)e taken from eave of roof at side of car, whether latitudinal running board is used or not. (Shown on plates illustrating LTnited States States safety appliance stan- dards, issued by the Commission July 1, 1911.) 4. Box and other house cars — automobile cars with swinging end doors — end ladders : That these cars may come under the head oi! cars of special construction, as per clause on page 37 of the order, and the end ladders placed as nearly as possible to designated location. 740 Conference Eulings. November 14, 1911. 330. FREE CARRIAGE OF RAILWAY Y. M. C. A. LI- BRARY BOOKS. — It is not unlawful for an interstate railroad to carry without charge, for use by railway employees, books be- longing to the libraries of Railway Young Men's Christian As- sociations. 331. TRANSFER OF SHIPMENT IN TRANSIT TO AN- OTHER CAR. — A shipment started to move under a joint through rate and an established mininuim for the car of the size in which it was loaded, but for the convenience of the car- rier was subsequently transferred into a smaller car taking a lower minimmn under the same through rate. Charges were collected on the actual weight, which was in excess of the lower and less than the higher minimum weight : Held, That where a joint through rate is in effect the through charges are not af- fected by such a transfer of the shipment in transit from one car to another whether larger or smaller ; and that the through charges here should have been collected at the joint through rate and on the basis of the minimum weight applicable on the car ordered or accepted by the consignor for the movement. (See rulings 273, 274, 339, and 357.) Decemhei' 11, 1911. 332. CARRIERS FAILING TO OBEY ROUTING IN- STRUCTIONS LIABLE TO PROSECUTION.— (Rescinded by ruling 502.) 333. COMPANY MATERIAL.— Material for use in the re- pair of one of its cars was shipped by a carrier to the shop of a connecting line. Upon inquiry whether the material could move free of charge over both roads it was Held, That in cases of this kind company material may move without charge only over the line at whose expense the repair is made. (See ruling 373.) January 9, 1912. 334. RATES ON GASOLINE MOTOR CARS IMOVING UNDER THEIR OWN POWER.— The movement of a gasoline Conference Rulings. 741 motor car, from the manufacturer to the purchaser, over the rails of a common carrier is transportation that is subject to the act, when between interstate points, notwithstanding the fact that it moves under its own power and is operated by em- ployees of the manufacturer. Such tranportation is lawful only when a rate for it has been duly published. Except on the commodities specifically enumerated in section 1 of the act, rates can not lawfully include the passage of attendants, and as gasoline motors cars are not so enumerated the attendants must pay fares on the basis of the regularly published i^assenger fare then in effect. In adjusting its rates the carrier should take into consideration the conditions surrounding the movement of traf- fic of this kind. 335. FREE TRANSPORTATION OF HOUSEHOLD GOODS. — A bureau of the American Railway Association, known as the Bureau for the Safe Transportation of Explosives, ordered one of its inspectors to permanent duty at another sta- tion. Held, That the carriers in the route between the two points can not lawfully transport his household goods free of charge, even though they are members of that association. 336. FREE TRANSPORTATION OF INSTRUCTOR IN THE USE OP BOILER COMPOUNDS.— Annual passes may not lawfully be issued to or used by employees of companies manufacturing boiler compounds ; nor may a carrier transport such persons free of charge when going to or from instruction work on the line of a connection. A carrier using the compound in its locomotive boilers may give free transportation to an ex- pert of the manufacturer whom it desires to send over its own line to instruct its employees in the use of the compound, but only for that purpose and to the extent necessary in the per- formance of that duty, provided the agent does not sell or solicit orders. (Overruling Conference Ruling 320. See ruling 346.) January 15, 1912. 337. AGENTS FOR CARRIERS MAY NOT ACT AS AGENTS FOR SHIPPERS.— At certain docks the stevedores, who are also the loading contractors for a connecting rail line, unload the vessel and load its cargo into the cars, handling a 742 Conference Rulings. loading slip to the rail line, upon which the latter issues bills of lading. For the purpose of defeating the through rate, or in such a manner as to have that result, they also act as agents for consignees, and forward to inland rail points goods received by water at the docks and originally intended for such destina- tions. (See In re Wharfage Facilities at Pensacola, Fla., 27 I. C. C, 258 ; and Boran & Co. v. .V., C. & St. L. Ry., 33 I. C. C, 527.) Affirming the principle of Conference Ruling 98, it i^ Held, That neither a railroad nor its agents or employees may law- fully act as forwarding agents for shippers. (See ruling 365.) February 5 1912. 338. JOINT RATE REDUCED TO THE AGGREGATE OF THE INTERMEDIATES, MINIMUM WEIGHT BEING IN- CREASED. — A joint rate exceeding the aggregate of the inter- mediate rates was later reduced to equal their sum, the mini- mum weight, however, being increased. Held, That in such cases reparation, when awarded informally by the Commission, will be on the basis of the newly established joint rate and mini- mum weight, subject of course to the actual weight when higher than the new minimum. (Rescinding ruling 228.) 339. TWO SMALL CARS FURNISHED IN LIEU OF A LARGER CAR ORDERED BY THE SHIPPER.— Upon in- formal complaints and numerous inquiries it is Held, That the act of a carrier in furnishing two small cars in lieu of the larger car ordered by a shipper under appropriate tariff authority is binding, at the rate and minimum applicable to the ear ordered, upon all the carriers that are parties to the joint rate under which the shipment moves from the point of origin; the ship- per is entitled to all privileges in transit, to reconsignment, and to switching at the same charges as would be applicable under the joint tariff had the shipment been loaded into one car of the capacity ordered; and demurrage will likewise accrue on that basis. If the shipment moves beyond the point to which the joint rates applias, the connecting line or lines are entitled to and should collect their transit, reconsigning, switching, and de- murrage charges as provided in their own tariffs. Conference Rulings. 743 In all cases the initial carrier will be lia])le for such additional charges as may be imposed on the sliipper by reason of its fail- ure to furnish a car of the capacity ordered. Carriers that are parties to the joint rate under which the shipment commenced to move may share in such additional expense so incurred by the initial carrier. Rule 66 of Tariff Circular 18-A: General Chemical Co. v. N. & W. By.. 15 1. C. C, 349 ; Conference Ruling 250; Milwaukee Falls Chair Co. v. C, M. & St. P. Eij., 16 I. C. C, 217; Confer- ence Rilling 59; Nolle v. B. & 0. R. R., 22 I. C. C, 432; and Conference Ruling 274 reaffirmed, with the understanding, how- ever, that the duty of transferring the shipment rests upon the carriers and not necessarily upon the connecting carrier. (See ruling 357 amending ruling 250.) 340. RESTAURANT EMPLOYEES AT A UNION STA- TION NOT ENTITLED TO FREE TRANSPORTATION.— A restaurant is conducted in a union station primarily for the bene- fit of the traveling public by a terminal company claiming to be a common carrier within the meaning of the act. Upon inquiry, Held, That its emploj^ees in the restaurant are not entitled to free transportation. (See ruling 87.) 341. SWITCHING ROAD S— CONCURRENCES.— Two lines having no direct connection effect an interchange of traffic through a terminal railroad under an arbitrary switching charge of $3 a car, which they absorb out of the joint rate. Upon in- quiry it is Held, That it is not necessary that the switching road be shown as concurring in the joint through rate if its tariff of' switching charges is on file and the tariff naming the joint through rate provides that such charges will be so absorbed. (See ruling 402.) February 12, 1912. 342. HOURS OF SERVICE LAW.— A trainman required by the rules of the carrier, in conjunction with his duties as train- man, to send, receive, or deliver orders affecting the movement of trains comes within the proviso of section 2 of the hours of service act, and therefore a carrier may not require a trainman, who has been on duty longer than the limit of time fixed for a 7-14 Conference Rulings. telegraph or telephone operator, to send, receive, or deliver or- ders affecting the movement of trains, as a part of the duties regularly assigned to him. But upon inquiry whether the practice of requiring conductors of trains delayed at stations where there is no regularly as- signed telegraph or telephone operator on duty, and conductors of trains about to be overtaken by superior trains, to telephone or telegraph the train dispatcher for instructions is in accord with the act and with the Commission's order of interpretation of June 25, 1908, Held, That a trainman who has been on duty for more than 9 hours or for more than 13 hours is not prohibited from occasionally using the telegraph or telephone to meet an emergency. March 4, 1912. 343. ICED REFRIGERATOR CAR NOT USED.— A refrig- erator car set for loading, fully iced, was not used because of weather conditions, and the shipper refused to pay the ice com- pany's bill: Held, That wiiile an action may doubtless lie at common law, it is not clear, in the absence of a tariff pro\'ision to cover such cases, that the ice charges are collectible under the act. 344. RATES LAWFULLY CANCELED.— Upon inquiry, Held, That a rate once lawfully canceled may not be reinstated as a reissued item. 345. FREE TRANSPORTATION.— The free-pass provision of section 1 is construed as implying that free transportation may be accorded by carriers to Canadian customs and immigra- tion inspectors on duty. March 11, 1912. 346. FREE TRANSPORTATION OF INSTRUCTORS.— In the interest of safety and economy many carriers have adopted certain appliances and methods in the use of which by their employees instruction and supervision are essential to proper results and can only be given by experts. The contracts under which carriei*s undertake to use such appliances or materials Conference Rulings. 745 not infrequently contain provisions requiring the vendor to fur- nish experts for these purposes and the carrier to transport them over its line free of charge. The successful use of such appliances or matei-ials makes for the public interest, and upon full consideration of numerous in- quiries in the light of more complete information, and differen- tiating clearly between vendors' expert demonstrators and in- structors and other of their agents, it is Held, That where a car- rier purchases appliances, materials, or supplies, in the use of M'hich instruction and supervision of emploj^ees by experts are essential to proper and successful results, it may, in the con- tract of purchase, undertake to grant free transportation over its own line to such expert demonstrators and instructors as are furnished by the vendor under the contract, to the extent and only to the extent that such transportation is necessary for the performance of their duty on that line ; and provided that no such expert so traveling under free transportation shall in any way engage in the sale of goods or in the soliciting or taking of orders therefor: Held further, That such experts are not rail- way employees in the sense that they may be given free trans- portation to travel over one road or system for the purpose of reaching another road or system to which they may have been assigned upon like duty. The view^s expressed in Conference Biding Ko. '208 as to gen- eral application of the law are adhered to; Conference Rulings 134 and 336, in which the principles of Conference Ruling 208 are applied, are not to be understood as being modified by any- thing here said. 347. ERROR IN STATING CONCURRENCE NUMBER. — Through inadvertence a tariff showed an erroneous number of a lawful concurrence by a participating carrier : Held, That the tariff is not invalidated by a minor error of that character but is a lawful issue, and is binding upon the participating car- riers. 348. FABRICATION OF STRUCTURAL STEEL.— In mak- ing shipments of structural iron and steel the consignor intended to take advantage of the privilege of fabricating the material in transit, but failed to note on the bill of lading as required by the tariff "To be fabricated at ." As a result of this 74-6 • Conference Rulings. omission higher charges accrued: Held, That the Commission will not authorize the carrier to refund the additional charges resulting from the shipper's own error. (See Woodland Lumhef Co. V. N. 8. R. R. Co., 38 I. C. C, 710.) 349. DESTRUCTION OF RECORDS.— The sale of docu- ments, records, and papers of an interstate carrier as waste pa- per is held to be a lawful destruction of such records within the meaning of the rules and regulations of the Commission touching the destruction of records, provided all other require- ments under those rules and regulations have been complied with. April 1, 1912. 350. RATES APPLICABLE TO SHIPMENTS STOPPED SHORT OF INTENDED DESTINATION, AND FARES AP- PLICABLE TO PASSENGERS DISCONTINUING JOUR- NEYS. — Under transit tariffs requiring the payment of the full rate to final destination at the time the shipmeiit is delivered at the transit point, it sometimes occurs that a shipment is never forwarded to the destination to which charges have been paid : Held, That it is not unlawful or improper in such cases to re- fund the charges that have been paid in excess of what the law- ful charges on the shipment would have been if the transit point had been its final destination. (See Clinton Sugar Refining Co. V. C. & N. W: Ry. Co., 28 . C. C, 367, and Pillshiiry Flour Mills Co. V. G. N. Ry. Co., 39 I. C. C, 357.) Held further, That, subject to the time limit of ticket, the same rule applies where a passenger has purchased n ticket and has abandoned his journey at a point short of the destination sho^^^^ on his ticket and also to a prepaid shipment of freight that is stopped and delivered at a point short of that to which prepaid. (See ruling 115.) 351. TELEGRAMS OF SHIPPERS.— Upon inquiry, under Conference Ruling 327, whether carriers may send at their ex- pense over shippers' names telegrams directing the routing of certain traffic: Held, That carriers may not pay for such tele- grams. (See rulings 302, 327, 363, and 480.) April 2. 1912. 352. FREE TRANSPORTATION.— A carrier that has ac- quired a railroad by foreclosure, reorganization, or otherwise, Conference Rulings. 747 mRv lawfully continue to issue free transportation to the widows, during widowhood, and minor children, during their minority, of persons who died while in the service of the company formerly operating the road. 353. SHIPMENTS. BY WATER —In the application of the act, a shipment by water from one port to another in the terri- tory of the United States is to he regarded as coastwise business; a shipment by water from a port of the United States to a port of any foreign country, even though adjacent, is export busi- ness. (See rulings 359, 369, and 468.) 354. THROUGH SHIPIMENTS VIA WATER AND RAIL. — Upon inquiry, and referring to w^ater carriers as defined in section 1 of the act : Held, That if a rail carrier and a water carrier separately publish and file their rates applicable to through shipments, traffic over such route may lawfully be transported under through bills of lading, even though the rates are not .joint through rates. Held further, That a water carrier may not lawfully accept shipments for transportation on through bills of lading issued by a rail carrier unless the water carrier has lawfully published and filed rates applicable thereto. Held further. That the acceptance by a water carrier of through traffic on through bills of lading issued by a rail carrier is an evidence of an arrangement for continuous carriage which subjects the traffic to the provisions and jurisdiction of our act. (See rulings 66, 155, 201, 401, and 422.) These holdings shall not be construed so as to conflict with Rule 71, Tariff Circular 18-A, which covers export and import traffic. (Last paragraph as amended in conference November 11, 1912.) Held fnrther (as amended Mar. 6, 1917), That it is not law- ful for a carrier subject to this act to issue through bills of lading under an arrangement with a water or other carrier for a con- tinuous carriage until such water or other carrier shall have law- fully filed with this Commission rates applicable to such carriage. April 8, 1912. 355. FREE TRANSPORTATION OF OFFICERS OF NONOPERATING COMPANY.— A railroad constructed 748 GONFERENCB RuLINGS. by municipal trustees was afterwards leased under a contract antedating the act to regulate commerce and providing that the lessee company would issue annual passes to Ihe trustees and their agents and would furnish a car for their use in inspecting the line. Upon incpury whether these covenants, being a part of the consideration for the lease, may now be complied with by the lessee company, it is Held, That officers directors, and other per- sons connected with a nonoperating company are not entitled to use free transportation. (See rulings 95 and 263.) May 6, 1912. 356. DISCLOSING NAME OF CONSIGNEE.— Upon in- quiry: Held, That it is unlawful for a carrier to disclose to a shipper the name of the ultimate consignee of a shipment recon- signed in transit by the original consignee. (Sec. 15, act to reg- ulate commerce as amended June 18, 1910. See In the Matter of Freight Bills, 29 I. C. C, 498.) 357. DEMURRAGE, SWITCHING, RECONSIGNMENT, AND DIVERSION CHARGES ON A CARLOAD SHIPMENT TRANSFERRED INTO TWO CARS.— In case a shipment leaves a point of origin in a single car and for the convenience of the carriers is transferred in transit into two cars which are subsequently detained at destination beyond the free time, de- murrage should be assessed as for one car only, so long as either ear is detained ; and in such cases switching, reconsignment, and diversion charges should be assessed as for one car only. (Amend- ing ruling 250 ; also also rulings 273, 274, 331, and 339. Also Scudder v. T. & P. By. Co., 21 I. C. C, 60.) 358. DEMURRAGE AT PORTS RESULTING FROM VES- SEL DELAY. — Coal consigned to tidewater was held in the cars at the port awaiting the arrival of a vessel which had been delayed by storms: Held, That the delay being due to condi- tions beyond the control of the rail carrier its demurrage charges might not lawfully be waived. (See rulings 8 and 135.) May 13, 1912. 359. SHIP:\rENTS TO COLON, PANAMA.— Colon, although within the geographical limits of the Canal Zone, is governed by Conference Rulings. 749 and is under the sovereignty of the Republic of Panama. The Commission holds, therefore, that shipments from the United States to that point are entitled to export rates. (See ruling 468.) May 17, 1912. 360. ALLOWANCES UNDER SECTION 15.— Held, Tha: an allowance purporting to he made under sectioji 15 must be re- garded as a concession from the rate unless duly published by the carrier in its tariffs and thus made available to all shippers furnishing a like facility or performing a like service of trans- portation in connection with their traffic. (See rulings 19. 78, 132, 267, and 292.) June 3, 1912. 361. FREE TRANSPORTATION TO JOINT EMPLOYEE. — It is desired to move to another station a messenger carried on the pay rolls of an express company who also acts as baggage- man for a rail line, 45 per cent of the salary^ paid him by the , former being refunded to it by the latter : Held, That the rail- road company may not lawfully transport his household goods free or at rates other than those duly established. (See ruling 208&, also ruling 157.) June 4, 1912. 362. ASSIGNMENT OF CLAIM.— In awarding reparation the Commission will recognize an assignment by a consignor to a consignee or by a consignee to a consignor, but will not recog- nize an assignment to a stranger to the transportation records. (Amending ruling 246. See Fohinson Co. v. Ameriean Expresa Co., 38 I. C. C, 735; also Oden & Elliott v. 8. A. L. By., 37 L C. C, 345.) June 8, 1912. 363. PAYIMENT BY CARRIER OF TOLLS ON TELE- GRAMS. — A carrier's tariffs provide that it will pay for tele- grams by consignees to shippers when they contain nothing in addition to the necessary specific instructions to route shipments 750 Conference Rulings. over its rails : Held, That such a rule, when lawfully incorpo- rated in the tariffs of a carrier, is not objectionable. See rul- ings 302, 327, 351, and 480.) 364. EXCHANGE OF SERVICES BY TELEGRAPH AND RAILROAD COMPANIES.— See rulings 305 and 491. 365. CARRIERS ACTING AS FORWARDERS OF SHIP- MENTS. — Conference Rulings 98 and 337 do not apply when the consignment is to or in care of the carrier itself for the pur- pose of being forwarded by that carrier from the point of re- ceipt, at the regular rate, over its own line and connections ac- cording to routing instructions, and when no lawful through rate is defeated and no discrimination or other violation of the act results. In no ease may the same person act as the agent of the carrier and the shipper. (See In re Wharfage Facilities at Pensacola, Fla., 27 I. C. C, 258 ; and Doran & Co. v. N., C. & St. L. Uy., 33 L C. C, 527.) June 10, 1912. 366. DEMURRAGE OR STORAGE CHARGES RESULT- ING FROM FAILURE TO GIVE NOTICE AT NAMED AD^ DRESS. — Upon informal complaint it is Held, That when the definite address of a consignee is noted upon the bill of lading it is the duty of the initial and of each succeeding carrier to trans- mit that address to connections participating in the movement, and the duty of the delivering carrier to send notice of arrival to that address ; the carrier at fault in this respect will be held liable for demurrage or storage charges accruing as the result of the failure of the notice to reach the consignee. (See ruling 127, also see Code of National Car Demurrage Rules.) 367. LIQUOR SHIPMENTS NOT DELIVERED.— An ex- press company may not refund the prepaid charges on ship- ments of liquor which it carried to destination but could not de- liver under a local law. October 7, 1912. 368. CARRIER LOCATED WHOLLY WITHIN A STATE. — Some of the express matter carried by a traction company for Conference Rulings. 751 an express company between points within a state originates at or is destined to points outside the state. Upon in([uiry, Held, That the traction line is subject to the act to regulate commerce and must file reports and otherwise comply with its requirements. (See rulings 197 and 418.) October 8, 1912. 369. COASTWISE TRAFFIC OVER PANAMA RAIL- ROAD. — Shipments moving between ports of the United States by vessel and the Panama Railroad and to ultimate destination by rail are interstate and must take interstate rates for the rail haul from the port to destination. (See rulings 353, 359, and 468.) 370. MISROUTING INVOLVING LOSS OF TRANSIT PRIVILEGE. — Besidess stating the route and giving instruc- tions to stop the car in transit to finish loading a shipper also noted a through rate on the bill of lading. This rate did not apply over the indicated route, but was appliciable over a route that did not permit the stop specified. Held, that the initial carrier, not having advised the shipper of the facts, is liable under Conference Biding 286f for the higher charges that re^ suited from following the routing instructions. (See ruling 474 amending 286f ; also Jefferson Lumher Co. v. M. cO 0. B. B. Co.. 40 L C. C, 44.) 371. FREE TRANSPORTATION OF EMPLOYEES OF BL REx\ITS OF CARRIERS.— The following persons may lawfully use free transportation : (a) Employees of a weighing and inspection bureau who per- form and supervise the weighing of cars for the carriers main- taining such bureau are exclusively engaged upon the work of such carrier, and are subject to the direction of their officials, but report to and are paid by the w^eighing and inspection bureau. (&) Employees of the American Association of Railroad Superintendents known as chief interchange inspectors, whose duties are to settle disputes among car inspectors at junction points where traffic is interchanged Avith other lines. (See ruling 448.) 752 CONFEEENCE RuLINGS. 372. FREIGHT MOVED FOR AN EXPRESS COMPANY.— On a shipment consigned to itself under a joint freight rate an express company is not entitled to the benefit of a rail car- rier's division to its junction with the line over which the ex- press company operates. (See ruling 209; also Jn re Contracts for Free Transportation, 16 I. C. C, 246.) 373. REPAIR OF CARS ON FOREIGN LINES.— A carrier on whose line a car was damaged made an order on a connect- ing line, M'hich owned the car, for certain castings to be delivered to it at the junction of the two lines. Held, That the former line was a shipper over the line of the owning carrier and must pay the published rate. (See rulings 225 and 333.) 374. CAR FERRY COMPANY SUBJECT TO THE ACT.— An incorporated company operates a car ferry connecting the two interstate rail lines by which it is owned. It separately conducts its own affairs and keeps its own accounts, but has no direct dealings with the public. Held, That the ferry company is a common carrier subject to the act, and must file tariffs, keep its accounts, and make reports in accordance with the rules and regulations of the Commission. 375. DESTRUCTION OF RECORDS OF LESSOR COM- PANY. — A corporation ow^ning a railroad that it has leased to a carrier for use in interstate traffic is itself subject to the act and must designate an officer to have charge of the destruction of its records. 376. REPARATION CLAIMS ON THE INFORMAL DOCKET.— (Restated in ruling 425.) November 14, 1912. 377. USE OF COMMISSIONS BY POST-OFFICE INSPEC- TORS WHEN OFF DUTY.— The use of his commission for transportation by a post-office inspector when returning to duty from a pleasure trip is unlawful. (See ruling 95/.) 378. EXPORT BILL OF LADING. — The rules and regula- tions of carriers governing bills of lading on export traffic must be published and filed with the Commission. 379. INTEREST UPON OVERCHARGE CLAIMS.— (Re- .stated in ruling 489.) Conference Rulings. 753 October 15, 1912. 380. REFUND ON UNUSED PORTION OF PASSENGER TICKET. — A passenger, having a round-trip ticket for an inter- state journey with stop-over privileges, stopped off at an inter- mediate point on the going trip and later proceeded to des- tination. He did not use the return portion of the ticket. The tariff provided for redemption in such eases at the difference between the fare paid and the published rate to the point where the trip was discontinued. There were in effect between the starting point and destination a one-way fare with stop-over pri- vileges, a one-way fare for a continuous passage, and one- way fares for continuous passage to the stop-over point and from that point to destination. The latter .combination was lower than the through fare with stop-over. Held, That the refund was properly made on the basis of the difference between the fare paid and the one-way fare with stop-over privileges. November 11, 1912. 381. BRIDGE COIMPANIES.— A bridge company which does not own or operate any motive power or cars and rents its bridge to an interstate carrier need not file tariffs with the Conunission. (See ruling 399.) 382. MILEAGE IN PART PAYMENT FOR TICKET.— A mileage book presented in part payment for a passenger ticket must be accepted for transportation to the farthest station cover- ed by the remaining coupons, the passenger to pay the local fare from that point to destination. (See ruling 81.) 383. MISROUTING SHIPMENT.— The address of the con- signee having been omitted, a shipment arriving at destination by a line other than that designated in the routing instructions was sent to a storage warehouse. The consignee had made inquiry for it of the delivering carrier noted on the bill of lading. The freight rates were the same by either route. Held, That the in- itial carrier is liable for the storage and drayage charges re- sulting from misrouting the shipment. 754 Conference Rulings. 384. CHARGES FOR MEALS ON DINING CAR.— The Cora- mission has no jurisdiction over charges made for meals on din- ing car. (See ruling 28.) 385. HIGHER PASSENGER FARE TO INTERMEDIATE POINT THAN TO MORE DISTANT POINT.— A higher pas- senger fare was charged to an intermediate point than was in effect to a more distant point over the same route. .Held, That, the discrimination in its tariff being corrected, the Commission will entertain an application by the carrier to be permitted to make refund on the basis of the lower fare to the more distant point. 386. FREE TRANSPORTATION TO TIE INSPECTOR.— A carrier purchases all its erossties from one source and the con- tract provides for free transportation to the inspectors of the contractor while traveling to inspect and purchase the ties. Held, That free transportation may not lawfully be extended to such inspectors. (See rulings 208-c and 430.) 387. UNIFORM BILL OF LADING.— The uniform bill of lading contains the following clause : The value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if pre- paid), at the place and time of shipment under this bill of lading. At the time a particular shipment, lost in transit, was made, the market price of a commodity had advanced beyond the price fixed in a contract previously entered into, under which a large quantity had been purchased for future delivery. A construc- tion of the clause being requested, it is the view of the Com- mission that the provision in the bill of lading contained in the parentheses above quoted does not apply to a shipment made several weeks later than the contract of sale. December 2, 1912. 388. TRANSPORTATION OF EXPLOSIVES.— The regula- tions of the Commission touching the transportation by freight and express of explosives and other dangerous articles, together with the specifications for the containers thereof, are amended by extending their application to company materials and supplies of that nature. (See ruling 106.) Conference Rulings. 755 389. TARIFFS CONTAINING EXPORT OR IMPORT RATES.— (Restated in ruling 468.) 390. AGENT'S ERROR IN FIXING TIME LIMIT TO PASSENGER TICKET.— Under a tariff providing for an ex- tension of the time limit, when the privilege of stop-over on a through ticket is availed of, the carrier's agent at the stop-over point attached the necessary certificate but erroneously showed an expiration date not sufficiently in advance to permit the holder to reach destination by a continuous trip on a regular train ; and in consequence it was necessary for the holder to pay the local fare of a connecting line to destination from the point where the time limit expired. Held, That the carrier whose agent made the error must bear the entire burden of the refund of the additional fare. (See rul- ings 167 and 277.) 391. FARE PAID UNDER MISAPPREHENSION OF A .PRIVILEGE OFFERED UNDER A THROUGH TICKET.— A passenger, not knowing that a coupon attached to his through ticket, and good for passage between two intermediate points by steamship, might be exchanged for transportation by rail between those points, failed to make the request required under the tariff and purchased a local railroad ticket therefor. Held, That that carrier may not lawfully refund the amount of the local fare. December 9, 1912. 392. MISROUTING INVOLVING WRONG TERMINAL DE- LIVERY.— Rescinded by ruling 509. December 10, 1912. 393. REFUND OF PASSENGER FARE.— The holder of a round-trip ticket died at destination, all required steps for ex- tending the time limit for the return trip having been previoush^ taken except the affixing of the holder's signature. Had the signature been affixed the ticket would have sufficed for the trans- portation for the corpse. Upon inquiry, Held, That refund may be made by the carrier. 756 Conference Rulings. 394. JURISDICTION OVER WIRELESS I\IESSAGES.— The Commission considers that it has jurisdiction over wireless messages from a commercial station in the United States to a ship at sea, whether it be a United States or foreign ship. It does not consider that it has jurisdiction over messages between two American ships at sea. (See ruling 410.) December 16, 1912. 395. VIOLATIONS OF THE FOURTH SECTION.— Con- firming the general principle of an order entered and announced on January 26, 1911, it is Held, That when a carrier in obedience to the requirement of the fourth section of the act has, after August 17, 1910, corrected discriminations against intermediate points, it may not lawfully restore such discriminatory rates un- less upon formal application the Commission finds justifying circumstances and authorizes a deviation from the long-and- short-haul rule. (See ruling 406 ; also Cement Rates From Mason City, la., 30 I. C. C, 429.) Fehruary 10, 1913. 396. SPECIAL REPARATION ON INFORMAL COM- PLAINT. SUPERSEDING RULING 220-c.— Reparation under informal proceedings will be authorized in instances where the tariff rate has been applied, upon the filing of an application by the carrier or carriers which participated in the transportation of the property in question, containing an admission that the rate charged was unreasonable, supported by a statement of the facts substantially showing that the charges demanded for the trans- portation service performed was excessive, that within a reason- able time a tariff naming the rate upon basis of which adjustment is sought has been published, and that such rate has been made lawfully applicable via the route over which the shipment moved. The Commission's order for refund on account of a reduced rate or changed tariff regulation will require the maintenance of such rate or regulation for at least one year. (Superseding ruling 38; also see rulings 14, 130, and 200-a ; also Riverside Mills v. Georgia R. R., 20 I. C. C, 424; and Jefferson Lumber Co. v. M. & 0. R. R. Co., 40 I. C. C, 44.) Conference Eulings. 757 January 6, 1913. 397. REPARATION FOR MISROUTINO.— ITntil the Com- mission otherwise directs, carriers may adjust claims arising under item (/') of Conference Ruling 286 without first bringing them to the attention of the Commission ; in pursuing this course, however, they must accept full responsibility for the correct application of the rule. (See ruling 474, amending ruling 286f.) January 13, 1913. 398. FREE TRANSPORTATION OF COLLEGE SUP- PLIES. — A college maintained largely by voluntary contri- butions provides free tuition through scholarships for worthy and needy pupils, but collects tuition from all students who are able to pay it : Held, That under section 22 of the act coal contributed to the institution may not be transported by carriers at other than the published rates. (See ruling 477.) 399. REPORTS BY BRIDGE COMPANIES.— A bridge com- pany which has leased its bridge to an interstate rail line must file the annual, monthly, and other reports required of lessor companies under the accounting rules of the Commission. (See ruling 381.) 400. PASSES FOR TRAIN AUDITORS EMPLOYED BY AN AUDIT COMPANY.— An audit company under contract with several carriers provides train auditors to collect tickets ; they do no other work and may be transferred from road to road as the parties to the contract may require. Upon inquiry, Held, That a trip pass may be issued by any such carrier for a parti- cular journey over its line by an auditor in connection with its own business, but that annual passes must not be granted. January 14, 1913. 401. COASTWISE TRAFFIC MOVING ON A THROUGH BILL OF LADING TO INLAND POINT.— A through bill of lading was issued on a shipment routed over a rail-and-water iroute from, an inland point in one state to an inland point in another state, Under instructions from the consignee the ship- 758 Conference Rulings. ment was delivered by the coastwise line to a forwarding com- pany at the port of arrival^ to be delivered by it to a rail line for carriage to the inland destination as a local state movement. The delivering rail line advanced the charges of the initial and coast- wist lines and those of the forwarding company and collected them, together with its own charges, at destination. The sum of the local rates thus applied exceeded the through published rate from point of origin to destination. Held, That the through rate should have been assessed on the shipment. (See rulingfs m, 155, 201, 354, and 422.) February 3, 1913. 402. CONCURRENCE BY A LESSOR COMPANY IN RATES PUBLISHED BY A LESSEE.— When the lessor com- pany participates in the service with its engines and crews and is compensated therefor on a percentage division it should con- cur in and be shown as a party to the tariffs of the lessee nam- ing passenger fares and freight rates over the lessor's rails. (See ruling 341.) February 4, 1913. 403. STORAGE CHARGES ACCRUING DURING RECON- STRUCTION OF A LEASED WAREHOUSE.— A terminal company may not cancel charges that accrued, under published rates, on shipments landed and stored on its wharf with its consent pending the repair of a warehouse which it had leased to the shipper and which had been destroyed during a storm. March 10, 1913. I 404. STORAGE CHARGES ACCRUING BECAUSE OF WEATHER CONDITIONS.— Because of inclement weather and impassable roads shippers failed to remove less-than-carload vided in the tariff. (See rulings 242 and 313.) See code of National Car Demurrage Rules. freight within the free time specified in the tariffs and storage charges resulted. T^pon inquiry : Held, That the same rule may be applied to storage charges as to demurrage charges if so pro- Conference Rulings. 759 405. DEMURRAGE RULES APPLICABLE TO SHIP- MENTS. — Before certain shipments were removed by the con- signee at destination amended demurrage rules became effective providing charges after certain free time had elapsed: Held, That the rules in effect at the time the shipments arrived at the demurrage point must control. (See rulings 473 and 518.) April 7, 1913. 406. VIOLATION OF THE FOURTH SECTION.— A viola- tion of the long-and-short-haul clause, having been canceled out of its tariffs, may not lawfully be restored by the carrier without the special authority of the Commission, even though the violation was in existence w^hen section 4 of the act was amended on June 18,1910. (See ruling 395.) 407. COMMISSIONS PAID BY TELEGRAPH COMPA- NIES. — It is unlawful for a telegraph company to pay to the person, firm, or company in whose building a telegraph office is located any commission on the messages received by or transmitted for that establishment. April 8, 1913. 408. NOTICES OF ORAL ARGUMENT. (See current Rules of Practice.) 409. APPLICATION OP AVERAGE AGREEMENT UN- DER UNIFORM DEMURRAGE RULES.— No average agree- ment made under the uniform demurrage rules may properly combine in one account the cars of more than one consignee ; each average agreement must cover the business of one consignee only. Demurrage agreements may not lawfully be made with draymen or with public elevators serving various consignees. This rule is not intended to prohibit the application of the average agreement at a public elevator or warehouse so far as it applies to cars consigned to the elevator or warehouse company. (See ruling 463; also see Code of National Car Demurrage Rules.) . 410. EXCHANGE OF PASSES WITH WIRELESS TELE- GRAPH COMPANIES.— It is the view of the Commission that 760 C0NFEREi<[CB RuLINGS. passes and franks may lawfully be exchanged between wireless telegraph companies and other common carriers subject to the act. (See ruling 394.) 411. LABOR AGP]NT MAY NOT LAWFULLY RECEIVE PASSES.— The proprietor of a labDr agency, who furnishes laborers to railway companies and contractors, is not an employee of the carriers within the meaning of the first section of the act^ and passes may not lawfully be issued to him. 412. PASSES TO AN ATTORNEY ENGAGED IN THE WORK OF A CARRIER. — A carrier arranged with a lawyer to give preferred attention to its railroad business at a monthly salary, the attorney being permitted also to engage in general practice. Upon inquiry : Held, That time passes may not law- fully be issued in such a case unless substantially all the attor- ney's time is devoted to the work of the carrier. (See rulings 95a and 208a.) 413. SUPPLIES SOLD TO EMPLOYEES OF CARRIER BY A CONTRACTOR NOT TO BE TRANSPORTED FREE.— An employment agent is under contract with an interstate car- rier to furnish it with track laborers and to keep them supplied, even at remote points along its line, with provisions, foodstuffs, iclothing, etc., which they purchase of him from time to time with written orders upon the carrier against their pay. The con- tractor does no business with the general public. Held, That the supplies may not lawfully be transported free. (See ruling 208c. Compare ruling 469.) 414. PASSES TO WITNESSES IN CRIMINAL CASES.— Upon inquiry: Held, That, in case of a criminal prosecution for theft of property from a carrier subject to 1he act, the car- rier may lawfully issue to witnesses on the side of the state interstate passes to and from the place of trial, even though the witnesses are not cmploj-ees of that or any other common carrier. (See ruling ol9.) April 14, 1913. 415. EXCHANGE OF BILLS OF LADING.— The exchange at an intermediate point of one bill of lading for anotlier. show- Conference Rulings. 761 iug a different consignor or consignee or a different destination, is unlawful except in connection with a reconsigninent or diver- sion authorized in the tariff. (See ruling 227.) May 6, 1913. 416. CONSIGNEE RELIEVED OP DEMURRAGE CHARGES THAT ACCRUED AT POINT OF ORIGIN.— A consignee received a carload shipment, paid the freight charges thereon as agent for the shipper, sold the goods, and remitted the proceeds to the shipper after first deducting the freight charges. About six months afterwards a bill was pre- sented to the consignee for demurrage charges which accrued at the shipping point. The demurrage charges were not shown as advance charges, but a clear bill of lading was issued by the carrier. Upon inquiry : Held, That the issuance of a clear bill of lading by the carrier and its failure to bill the demurrage as advance charges relieves the consignee from the obligation to pay the demurrage charges, and the initial carrier must look elsewhere for their payment. 417. FREE TRANSPORTATION FOR TRAINED NURSE IN FAMILY OF EMPLOYEE.— Upon inquiry whether a train- ed nurse is entitled to free transportation, under section 1 of the act, when in attendance upon, and traveling with, an em- ployee of a carrier, who is himself entitled to free transpor- tation, or with one of his family, the Commission affirms its definition of the term ''families" a.s contained in Conference Ruling 95c and, conforming to its uniform practice with res- pect to such matters, declines to determine whether particular individuals are eligible to receive free transportation. May 12, 1913. 418. INTERSTATE CARRIER DEFINED.— An electric street railway, with a large passenger traffic and a substantial intrastate freight movement, derives a very small percentage of its revenue from shipments moving between interstate points. It asserts that its entire freight service, both state and interstate, is performed as a matter of accommodation 1o patrons along its line. 762 Conference Rulings. Upon inquiry : Held, That if a company engages in interstate commerce at all it thereby becomes subject to the act and is amenable to its provisions with respect to making statistical, annual, and other reports to the Commission and must file tariffs (See rulings 197 and 368.) 419. REPARATION ON THE BASIS OF STATE RATES. — Upon further consideration Conference Billing 251 is modi- fied as follows: The Commission will not recognize as a basis for reparation any rate that is not on file with it, except that in misrouting cases a lower state rate not on file here may be accepted as the basis for reparation when officially verified by local authorities. (Se ruling 93; also Lathrop Lumber Co. v. A. G. S. R. B.. 27 I. C. C. 250, and McCaull-Dimmore Co. v. G. N. By., 41 I. C. C, 178.) June 3, 1913. 420. JURISDICTION OVER TELEPHONE COMPANIES IN PORTO RICO.— It is the view of the Commission that it has no jurisdicion over the service and rates of telephone com- panies the lines of which are wholly within Porto Rico. 421. A CARRIER MAY NOT LEASE ITS ELEVATORS AT A NOMINAL RENTAL. — An interstate carrier desires to lease to a grain dealer at a nominal rental an elevator which has not been in use for some time, and which the carrier is anxious to dispose of because the operation of the elevator would attract business to the road. Upon inquiry : Held, That such a transaction would be illegal (See rulings 94 and 325.) June 5, 1913. 422. JURISDICTION OVER TRAFFIC MOVING ON THROUGH BILL OF LADING TO HAWAII— A steamship company filed a porportional tariff with the Commission pro- viding export commodity rates from a port in the United States to a port in the territory of Hawaii. The traffic was covered by through bills of lading from inland points in the Ignited States to the port of transshipment and moved under Conference Rulings. 703 tariffs filed with the Commission. Upon inquiry: Held, That imder the Panama Canal act the Commission has jurisdiction over shipments moving under the steamship company's pro- portional tariff. (See rulings 66, 155, 201, 354, and 401.) 423. COMBINATION RATE MAY NOT BE APPLIED UNTIL JOINT THROUGH RATE IS CANCELED.— A mixed carload shipment moved under a joint mixed carload rate. There was also in effect at the time of the shipment a combination carload rate on the heavier weighted commodity in the mixture and a through less-than-carload rate on the lighter weighted commodity, which made a lower charge than that based on the joint mixed carload rate. The joint mixed carload rate had not been canceled. Upon inquiry : Held, That a refund to the basis of the lower combination could not lawfully be made. 424. ABSORPTION OF SWITCHING CHARGES OF AN INDUSTRY. — An industry operates its own rails as a plant facility to a connection with the plant rails of another industrial concern, the latter rails, on the other side of the plant, con- necting with the rails of an interstate carrier. The trunk line desires to extend its service to the rails of the first industry. The intermediate industry refuses trackage rights to the car- rier but will continue itself to switch cars to it, and will accept compensation therefor from the carrier instead of from the other industry, provided this course does not sul)ject it to the act as a common carrier. It is the view of the Commission that the service performed by the intermediate industry is a service for the shipper and luot for the carrier and that the carrier may not lawfully ab- ,sorb the switching charge of the intermediate industry. 425. REPARATION CLAIMS ON THE INFORMAL DOCKET. — Upon further consideration Conference Ruling 376 is amended to read as follows : In special docket cases no order as to the rate for the future shall be entered where the joint rate in effect at the time of shipment exceeded the aggregate of the intermediate rates and the rates have been subsequently changed in sufh a manner as that at the time the order of the Commission is entered the 764 Conference Rulings. I through rate does not exceed the sum of the intermediate rates, or in cases where at tlie time the shipment moved the rate for a short haul was greater than tlie rate for a longer haul over the same line or route, in the same direction, the shorter being included within the longer distance and the rates have been subsequently changed in such a manner that at the time the distance does not exceed the rate for the longer distance. (Modifying ruling 200rt..) June 9, 1913. 426. TIME PASSES TO LOCAL ATTORNEYS, SUR- GEONS, ETC. — The Commission adheres to the ruling many times repeated that it is uidawful for an interstate carrier to issue time passes to local attorneys, surgeons, and others, who do not devote subtantially all their time to the work or busi- ness of the carrier. The principle of Conference Ruling 208-a is reaffirmed. (See ruling 449.) 427. INDUSTRIAL SWITCHING TRACKS>— Restated in ruling 512. 428. PAYMENT BY RAIL CARRIERS OF ADVANCE CHARGES ON IMPORT TRAFFIC— A rail carrier may not advance charges to an ocean carrier on import traffic except under a proper provision therefor in its tariffs. When such advance charges are made the freight bill of th^ rail line must show in separate items the charges so advanced and the charges of the inland carrier or carriers; it must also show the tariff rate or rates of the inland carrier or carriers. The name of the ocean carrier to which the charges are advanced must also be shown. In order that carriers may have time in which to ad,just their tariffs in conformity herewith this ruling will become effective on August 15, 1913. (See rulings 62 and 444; also Express Rates, Practices, Accounts, and Revenues, U. R. Op. A-980.) June 16, 1913. 429. FREE OR REDUCED RATE TRANSPORTATION TO FAMILIES AND HOUSEHOLD GOODS OF POSTAL CLERKS. — The law does not authorize free or reduced rate Conference Rulings. 7f<5 transportation for the families and household goods of postal clerks whose headquarters were changed for the convenience of a carrier. 430. TIE INSPECTORS NOT ENTITLED TO FREE TRANSPORTATION.— A man who has a contract to furnish ties to an interstate carrier may not lawfully have free trans- portation as a tie inspector. (See ruling 386.) 431. REDUCED RATE TRANSPORTATION FOR CON- VICTS UNLAWFUL.— It is the view of the Commission that reduced interstate fares may not be granted by carriers for transporting to the penitentiary persons convicted in the United States courts for violation of Federal laws. June 18, 1914. 432. WAIVER OF UNDERCHARGES.— (Canceled by rul- ing 472.) June 23, 1913. 433. SHIPPER LIABLE FOR HIS ERROR IN MAKING L. C. L. SHIP]\IENTS. — Besides being expressly so provided in the rules of all freight classifications, it is on broad general grounds the duty of a shipper correctly to mark packages of less-than-carload freight intended for transportation, and when so marked the carrier is held to a strict responsibility for their safe delivery at destination. A package of merchandise was addressed by a shipper to Lake City, Fla., instead of Lake City S. C. Held, That the shipper making the error must bear the burden of the resulting freight charges, and the fact that the correct address was noted on the bill of lading is not material. Parlin & Orendorff Flow Co. V. United States Express Co., 26 I. C. C, 561, reaffirmed. (See rulings 237 and 248; also Amepican Agricultural Chemical Co. V. B. & 0. B. B. Co., 28 I. C. C, 401.) Jtily 23, 1913. 434. PASSES TO OFFICIALS OF RAILROADS IN ADJA- CENT FOREIGN COUNTRIES.- Free interstate transpor- 76fi Conference Kulings. tation may lawfully be issued to officials of any railroad in an adjacent foreign country which has filed with this Commis- sion joint tariffs and concurrences in connection with interstate carriers in the United States without reservation as to the Commission's jurisdiction. (See ruling 475.) Jidy 24, 1913. 435. DESTRUCTION OF RECORDS.— It is the view of he Commission that all maps, profiles, plans, specifications, esti- mates of work, records of engineering studies, field books, and other records pertaining to the physical property of carriers come within the prohibition of destruction contained in section 20 of the act, and as such shall not be destroyed or otherwise dis- posed of unless their destruction be specifically authorized in the orders of the Commission in the matter of the destruction of records. (See orders of the Commission governing the des- truction of records.) Jiihj 25, 1913. 436. PASSES TO DIRECTORS OF A CARRIER IN THE HANDS OF RECEIVER.— When the management of a rail- road company has been placed in the hands of receivers and the officers and directors of the railroad company are not employed by the receivers : Held, That such officers and directors are not entitled to free transportation. (See ruling 165.) 437 EMBARGOES ON ACCOUNT OF REVOLUTION IN ADJACENT FOREIGN COUNTRIES.— Embargoes against the receipt of freight have been astablished by Mexican rail- roads at different times on account of revolutionary troubles in Mexico. Upon inquiry: Ecld, That interstate carriers in the United States under the special circumstances Mill be per- mitted to file with the Commission the proper application for authority to establish on short notice tariffs naming the con- ditions and rates under which they will return or otherwise dis- pose of property billed to points in IMexico, but which they have been unable to deliver because of the revolutionary con- ditions in that country. It is understood that the tariffs will arrange that those carriers which participated in the haul Conference Rulings. 767 within the United States will prorate the expenses of per diem, storage, loading, and unloading of the shipments or of their return to the points of origin. 438. REFUND OF PASSENGER FARES.~A ticket was purchased for an interstate journey during a time of high water, the agent stating that through trains were being operated with- out difficulty or delay. Upon arrival of the train at an inter- mediate point the conductor informed the passenger that the train would be abandoned on account of high water. The pas- senger then purchased a ticket back to the point of origin. Upon inquiry: Held, That a refund of all the fares paid on the trip may be made, provided the railroad company publishes a general tariff rule providing a refund of fares to all passengers affected by such circumstances and conditions. 439. COMPANY MATERIAL HAULED OVER ANOTHER LINE UNDER TRACKAGE RIGHTS.— A carrier having trackage rights permitting it to haul general traffic may haul its own company material over the leased track as over its own rails. In the case passed upon in Conference Rulmg 153 there was no arrangement for handling commercial freight over the leased track. 440. DESTRUCTION OF RECORDS.— An express company has retired from business and asks permission to destroy cer- tain of its records : Held, That in the absence of special per- mission by the Commission the records must not be destroyed except under the rules of the Commission. 441. TARIFFS COVERING ABSORPTION OF DRAY- AGE CHARGES. — The absorption of drayage charges being under consideration, the Commission holds : {a) Where there is an additional transfer or drayage charge in connection with a through shipment, the carrier's tariffs must specify what that charge shall be. (&) If such drayage or transfer charge is absorbed, in whole or in part, by a carrier, the tariffs must show the amount of such transfer charge that will be absorbed. (c) A drayage firm is not a proper party to a joint tariff nor is it a carrier under the provisions of our act; therefore, no tariffs can properly be filed by it. 768 Conference Rulings. (d) There is no provision in the law which requires, and the Commission has no authority to require, a carrier to confine such drayage to one draymen or one firm of draymen. (e) The responsibility in case of loss and damage while a shipment is in charge of truckman to whom it has been com- mitted by the carrier is a question for the carrier to resolve, and is not for our determination. 442. FEEDING AND GRAZING IN TRXNSIT.— Confer- ence Ruling 17 is amended to read as follows : In connection with the published privilege of feeding and grazing in transit, or where carriers are required to feed live stock in transit, under the provision of an act approved June 29, 1906, commonly called the 28-hour law, carriers may law- fully pro^^de in their tariffs that they will furnish feed at current market prices and bill the cost thereof, together with an addition not exceeding 10 per cent of such cost to cover the value of their services, as advance charges. October 7, 1913. 443. THROUGH RATE ONLY LAWFUL RATE FOR THROUGH SHIPMENTS.— Upon inquiry as to whether a through distance tariff rate should be applied in cases where a combination i^ate made up of a rate to an intermediate point and a distance tariff rate beyond makes a lower though charge: Held, That the through rate is the only lawful rate. (See ruling 220^.) 444. ADVANCES OF CUSTOMHOUSE BROKERAGE FEES. — Rail carriers may properly advance customhouse brok- erage fees and import duties and charges only when proper provision therefor is made in their published tariffs. (See rulings 7, 221, and 300.) 445. CHECKING SAMPLE BAGGAGE.— When carriers' tariffs provide for checking sample baggage and define sample baggage as that which is carried for display and not for dis- tribution or sale, it is not lawful to distribute or sell articles contained in such baggage at any point to which it has been so checked. Such articles may lawfully be distributed or sold at any point to which they are shipped by mail, freight, or Q?.- Conference Eulings. 769 press, and they may lawfully be so shipped from a point to which they have been checked as baggage for use as samples or for display. (See ruling 455; see also Jewelers' Protective Un- ion V. P. R. R., 36 I. C. C, 73.) November 4, 1913. 446. PASSES TO STATION AGENT WHO DEVOTES ONLY PART TIME TO RAILROAD DUTIES.— Upon in- quiry : Held, That a station agent employed by a railroad com- pany may not lawfully receive free transportation when he employs other persons to perform his duties so that he may de- vote the greater part of his time to other business. (See ruling 208a.) 447. APPLICATION OF FOURTH SECTION.— The pro- visions of the fourth section apply where the point of origin is in an adjacent foreign country and the intermediate point and more distant point of destination are in the United States, or where the point of origin and the intermediate point are in the United States and the more distant point of destination is in an adjacent country. (See ruling 318.) 448. FREE TRANSPORTATION TO MEMBERS OF FAMILIES OF EMPLOYEES OF BUREAUS OF CAR- RIERS. — LTpon inquiry it was agreed that Conference Ruling 371, holding that employees of bureaus maintained by com- mon carriers may lawfully use free transportation, must neces- sarily be understood as meaning that members of their families may also lawfully use free passes. December 1, 1913. 449. FREE TRANSPORTATION OF VETERINARY SURGEONS. — A veterinary surgeon not earned regularly on the pay rolls of a carrier but engaged by the carrier to examine live stock offered for shipment or to care for injured stock may not be furnished wdth a term pass but may lawfully use a trip pass over the lines of a carrier w^hen performing a bona fide service for it. (See rulings 208a, 2086, and 426.) 770 Conference Rulings. December 4, 1913. 450. TARIFFS OF A RAILROAD SYSTEM— THE TRADE NAjME. — The tariffs and concurrences of a railroad system must show, in addition to its trade name, the corporate title or titles of the various lines of which the system is com- posed. January 6, 1914. 451. DE:\IURRAGE charges on D'A]\IAGED SHIP- MENTS. — The uncertainty of a consignee as to whether or not he will accept a damaged shipment does not justify the carrier in waiving the demurrage charges accruing on the shipment pending his decision. 452. FREE TRANSPORTATION OF PROPERTY FOR TOWNSHIPS AND COUNTIES.— Upon inquiry: Held, That townships and coiuities are municipalities within the mean- ing of section 22 of the act to regulate commerce and carriers may lawfully transport their property free or at reduced rates. (See rulings 33, 36, 297, and 311.) 453. CHANGE OF ROUTE BY CONSIGNEE.— Rescinded by ruling 502. Januanj 12, 1914. 454. FREE TRANSPORTATION FOR CUSTOMS BROKER. — A customs broker emploj'ed by a carrier on a com- mission basis and not paid a regular salary and who does not devote substantially all his time to the service of the company is not entitled to use free transportation. (See ruling 208a.) Fchruanj 3, 1914. 455. SALE OF PROPERTY TRANSPORTED AS BAG- GAGE. — Upon inquiry as to whether or not it is unlawful for a person to sell property transported as baggage and upon which excess baggage charges on the entire weight are paid : Held, That if the carrier 's tariffs make provision for the transportation of .such property at excess baggage rates on the entire weight it would not be in violation of the law to dispose of the property Conference Rulings. 771 by sale or otherwise. (See ruling 445; also Jewelers' Protective Union v. P. B. B., 36 I. C. C, 73.) 3Iarch 2, 1914. 456. WRITTEN NOTICE TO CARRIER CONSTITUTES PRESENTATION OF CLAIM.— Restated in ruling 510. March 3, 1914. 457. WRITTEN STATEMENTS OF RATES FURNISHED BY Carriers. — it is the understanding of the Commission that under section 6 of the act carriers are recjuired to make written statements as to rates only in relation to shipments about to be made or shipments affected by contracts about to be en- tered into, and that the provisions of that section do not re- quire carriers to expend their time and labor in making such statements upon demands therefor by individuals wishing to is- sue books or notices of rates, or for other purely speculative pur- poses. March 16, 1914. 458. LOSS OP RETURN PORTION OF PASSENGER- FARE TICKET BY AGENT OF CARRIER.— The return por- tion of a passenger-fare ticket was lost by the agent of a carrier, and the carrier was obliged to furnish the traveler another ticket upon which to complete the return journey. Upon inquiry: Held, That the carrier at fault must assume the entire loss and pay to each carrier interested its proportion of the value of ticket furnished in lieu of the return portion of ticket lost. If, however, the return portion of ticket is later found, the carriers receiving settlement for the ticket furnished in lieu thereof may properly return the amounts received in settlement of the ad- ditional ticket furnished. April 13, 1914. 459. PASSES FOR SUPERINTENDENT OF MAIL SERV- ICE OF THE CANADIAN GOVERNIMENT.— It is the view of the Commission that free annual transportation may not law- 772 Conference Rulings, fully be issued to a superintendent of mail service of the Ca- nadian government. 460. TELEGRAMS AND CABLEGRA]\IS.— The practice by telegraph and cable companies of returning to patrons the origi- nal telegrams or cablegrams in support of their bills is unlaw- ful. Such documents must be retained in conformity with the regulations of the Commission governing the destruction of rec- ords of telephone, telegraph, and cable companies. April 14, 1914. 461. WATER CARRIERS CONTROLLED BY OTHER CO:\I]\ION CARRIERS.— Section 5 of the act as amended by the Panama Canal act prohibits common carriers subject to the act to have, after July 1, 1914, any interest, directly or indi- rectly, in any common carrier by water, or any vessel carrying freight or passengers, with which said carrier does or may com- pete for traffic. The manifest purpose of this law is to bring about discon- tinuance of common ownership or control of water carriers ex- cept in those in.stances in which, after investigation and hearing, it is found that such operation is in the interest of the public or of advantage to the convenience and commerce of the people, and neither excludes, prevents, nor reduces competition on the route by water. The act does not in specific words authorize the continuance of such common ownership or control beyond July 1, 1914, pending the decision of the Commission on application relative thereto; but it is provided that any application filed be- fore July 1, 1914, may be considered and granted thereafter. It is not conceivable that the Congress intended that the service should be withdrawn from the public on July 1, 1914, if for good and sufficient reasons it had been impossible for the Commission to determine the questions presented in the application before that date. Although the language employed is difi'erent, it seems that the legislative intent was similar to that expressed in the amended fourth section of the act and in the safety appliance acts. The Commission therefore interprets the amendment to section 5 of the act as contemplating and authorizing a continuance of any existing common ownership or control after July 1, 1919, Conference Rulings. 773 between rail and other carriers and water carriers not traversing the Panama Canal until such time as the Commission has passed upon the application relative thereto, provided such application is filed with the Commission prior to July 1, 1914. April 25, 1914. 462. CARRIER MUST INVESTIGATE BEFORE PAYING CLAIMS. — Upon further consideration Conference Ruling 15 is modified as follows : A carrier can not shield itself from responsibility in paying a claim by accepting the authority of a connecting line to pay it, but must ascertain the lawfulness of the claim and allow it or not upon the basis of its own investigation. This is not to be un- derstood, however, as requiring each carrier interested in the claim to make an independent investigation. The principle of direct investigation embodied in the rules of the freight claim association, whereby the carrier against which a claim is pre- sented undertakes to make the investigation for itself and for the other carriers concerned in the joint movement out of which the claim arises, is approved by the Commission as a means of expediting the adjustment of claims. In all cases, however, the investigation so made must be thorough and must disclose a law- ful basis for payment before the claim is adjusted. (See ruling 236; also Charleston & W. C. Ry. Co. v. Varnville Co., 237 U. S., 597.) May 19, 1914. 463. APPLICATION OF THE AVERAGE AGREEMENT UNDER UNIFORM DEMURRAGE RULES.— A storage ware- house company which is specifically designated as the consignee of carloads of miscellaneous freight, the property of others, and which company is responsible for the unloading and for the detention of cars so received, may be made the subject of the average demurrage rule. Cars arriving otherwise consigned and afterwards ordered to the warehouse for storage may not be included under the average agreement with the warehouse com- pany. (See ruling 409.) 774 Conference Rulings. May 28, 1914. 464. INTEREST UPON OVERCHARGE CLAIMS.— Re- Btated in ruling 489. July 11, 1914. 465. ORDERS ISSUED ABROAD FOR DOMESTIC PAS- SENGER TICKETS.— Under an arrangement with the rail car- riers trans-Atlantic steamship lines in selling a ticket for ocean passage from a foreign port will also sell an order upon a rail line for transportation from the port of arrival to an inland point, based on the fare in force at the time the order is i.ssued. Upon inquiry as to whether a carrier may honor such an order when the fare has been changed between the date of its issue and the date of its presentation : Held, That the order may be hon- ored on the basis of the fare in effect at the time it was sold, pro- vided the rail carrier has published an appropriate tariff provi- sion for the acceptance of .such orders at th(! fares in effect when they were issued. July 17, 1914. 466. PASSES FOR OFFICERS AND E:\IPL0YEES OF TAP LINES. — Under the decision of the Supreme Court of the United States in The Tap Line Cases, 234 U. S., 1, it is the view of the Commission that the law does not prohil)it the use of interstate free passes by the officers and employees of common- carrier tap lines who devote substantially all their time to the service of the tap line and where, by the use of such free passes, no unlawful discriminations are effected. (See ruling 208a and The Tap Line Case, 31 I. C. C, 494.) July 29, 1914. 467. EXCURSION TICKET ISSUED ON DATE NOT AU- THORIZED BY TARIFF.— A .station agent sold a colonist ticket at a reduced fare before the commencement of the period designated in the tariff. Upon inquiry : Held, That the selling carrier is responsible for the error and in settlement with its con- nections must allow them their usual divisions of the fare law- fullv in effect on the date of sale. Conference Rulings. 775 December 23, 1914. 468. EXPORT AND IMPORT RATES— CONFERENCE RULING 389 RESTATED.— In order to avoid controversies and questions: Held, That tariffs hereafter issued containing rates applicable to export or import traffic shall specify, by in- clusion or exclusion, the countries to or from which such rates are applicable, whether such countries are or are not adjacent to the United States. In the interest of clearness the tariffs should also specify whether or not shipments to or from Cuba, the Philippine Is- lands, Porto Rico, the Hawaiian Islands, or the Canal Zone are included. (See rulings 353, 359, and 369.) 469. FREE TRANSPORTATION OF SUPPLIES FOR LA- BORERS. — Upon inquiry as to whether or not a carrier may transport without charge food or other supplies for the use of laborers employed on its line : Held, That such shipments may not be carried free except when shipped hy an agent of the car- rier acting for it and for whose actions the carrier assumes and accepts responsibility. (Compare ruling 413.) December 24, 1914. 470. SPECIAL RATES ON SHIPMENTS IN FOREIGN CARS. — A carrier may not by tariff limit the application of cer- tain proportional rates to shipments in cars of other can'iers. January 19, 1915. 471. CHANGES IN RECONSIGNMENT CHARGES.— At the time a shipment commenced to move from the point of origin the tariff provided four days free time for reconsignment, but before the shipment reached the reconsigning point the time had been lawfully reduced to one day: Held, That the tariff in effect when the shipment, was made applied. May 3, 1915. 472. WAIVER OF UNDERCHARGES.-On and after August 1, 1915, the Commission will not consider on the infor- mal docket any application for authority to waive collection of undercharges in connection with shipments delivered subsequent 776 Conference Rulings. to July 31, 1915. Conference Rulings 258 and 432 are hereby rescinded as of Augnst 1, 1915. May 24, 1915. 473. DEMURRAGE AND STORAGE RULES.— Upon in- quiry and to remove the confusion that exists among carriers and shippers it is Held, That demurrage and storage in transit are controlled by the tariff in effect when the initial movement begins ; that demurrage on outbound shipments is controlled by the tariff in effect when the car is actually set for loading ; that demurrage and track storage at destination are controlled by the tariff in effect when the car is actually or constructively set for unloading; and that offtrack storage by a carrier at des- tination, in its warehouse or otherwise, is controlled by the tariff in effect at the time such storage begins. (See rulings 405 and 518.) May 25, 1915. 474. ADJUSTMENT OF CLAIMS FOR DAMAGES RE- SULTING FROM MISROUTING.— CoH/ere/ice Bulings 286-d and 286-f are amended to read as follows : (a) It is the duty of a carrier to make delivery in accordance with routing directions. Where such routing instructions have not been followed and delivery is tendered at another terminal than that designated, it remains the duty of the delivering car- rier to make delivery at the terminal designated in routing in- structions, either by a switch movement or by carting. In either event the additional expense involved in making such, delivery must be borne entirely by the carrier responsilile for the mis- routing and the reimbursement thereof to the delivering carrier may be made by the carrier at fault without a specific order of the Commiasion. (See ruling 214cZ.) (&) Restated in ruling 509. (c) The obligation lawfully rests upon the carrier's agent to refrain from executing a bill of lading which contains provisions that can not lawfully be complied with or provisions which are contradictory, and therefore impossible of execution. When, therefore, the rate and the route are both given by the shipper in tb.e shipping instructions and the rate given does not appjy Conference Rulings. 777 via the route designated it is the duty of the carrier's agent to ascertain from the shipper whether the rate or the route given in the shipping instructions shall be followed. The carrier wall be held responsible for any damages which may result from the failure of its agent to follow this course. If, however, the agent of the carrier, after exercising reason- able diligence, is unable to obtain more definite instructions as to routing, the goods should b'e sent via the rout specified in the bill of lading. (Cancels rulings 159, 186, 192, 2U-i, and 231 see rulings 243, 370, and 397. See Gibson Fruit Co. v. C. & N W. By. Co., 21 I. C. C, 645; Ludowici-Ccladon Co. v. M. P By. Co., 22 I. C. C, 589 ; American Agricultural Chemical Co V. B. & A. B. B. Co., 28 I. C. C, 400; Goldfield Cases, 34 I. C C, 378 ; Texarkana Pipe Works v. B., S. L. & Wn. By., 38 I C. C, 341 ; Chapin & Co. v. C, I. & L. By. Co., 38 I. C. C, 613 Jefferson Lumber Co. v. M. & 0. B. B. Co., 40 I. C. C, 44 Laclede. Christy Clay Products Co. v. M. P. By. Co.,\]. R. Op A-780; and B. McCracken & Son v. B. & 0. B. B Co., U. R. Op 2199.) 475. PASSES TO OFFICERS AND EMPLOYEES OF OCEAN AND FOREIGN COMMON CARRIERS.— In view of the decisions in United States v. Erie Bailroad, 236 U. S., 259. so much of Conference Bulings 59-a, 95-g, and 196 as pertains to passes to officers and employees of ocean common carriers and of rail common carriers in foreign countries not adjacent is withdrawn. (See ruling 434.) June 2, 1915. 476. PASSES TO THE FAMILY OF A DECEASED PEN- SIONED EMPLOYEE.— Upon inquiry as to whether or not common carriers may grant free transportation to the members of the family of a deceased pensioned employee : Held, That with the exception of widows during widowhood and minor children during minority, the members of the family of a de- ceased pensioned employee may not lawfully use free passes. (See rulings 103, 173, and 193.) June 14, 1915. 477. FREE TRANSPORTATION OF CAR WITH EXHIB- ITS FOR STATE AGRICULTURAL COLLEGE.— A state col- 778 Conference Rulings. lege uses a car containing live stock and agricultural products in giving free educational lectures and demonstrations to farm- ers in different parts of the state. Upon inquiiy : Held, That if the college is sustained by the state and if the arrangements are made with the proper and responsible officers of the state such car and contents and the necessary agents employed in connection therewith may lawfull}^ be moved by carrier without cliarge or at reduced rates. (See ruling 398.) July 8, 1915. 478. PASSES TO WATCH AND TIME INSPECTORS.— Upon inquiry: Eeld, That free passes may not lawfully be used by watch and time inspectors who, while engaged in the per- formance of a service for a carrier, pursue other business or sell or solicit the sale of merchandise of any character either to the employees of the carrier or to the general public. (See rul- ing 208&.) Jidy 22, 1915. 479. PASSES TO EMPLOYEES OF PRIVATE CAR LINES. — A company owns and leases cars to railroad companies on a mileage basis and ices and re-ices such ears at various points on the carriers' lines at the expense of the carrier. In- asmuch as the furnishing of cars and the icing of cars are duties imposed upon carriers under section 1 of the act, and following the principle laid down in Conference Riding 208-h, it is Held, That passes may lawfully be issued to the officers and employees of the car company when traveling solely for the purpose of furnishing or icing cars for shipments over the carrier's own lines, but may not lawfully be issued to or used by the officers of the car company when not traveling in the performance of a hona fide service for the carrier. July 22, 1915. 480. TELEPHONE MESSAGES RELATING TO SHIP- IMENTS.— Upon inquiry: Eeld, That Conference Rulings 302, 327, 351, and 363, regarding the exchange of messages between carriers and shippers, relate to telephone messages as well as to telegrams. Conference Rulings. 77D July 23, 1915. 481. ERROR IN THE ISSUANCE OF PASSENGER TICK- ETS.— Restated in ruling 487. July 26, 1915. 482. ROUTING OP SHIPMENTS BY CONSIGNEES.— Re- scinded by ruling 502. October 4, 1915. 483. COMMODITY RATE BASED UPON A MAXIMUM CARLOAD WEIGHT.— Under a tariff namin<^ a commodity rate per car, not exceeding a specified maximum weight, and also a class rate with a minimum carload weight: Held, Thar charges should be assessed upon the basis of the commodity rate, any excess weight to be charged proportionately ; but the car- rier may refuse to receive in one car a shipment weighing more than the maximum load prescribed for that car. (See ruling 84, and also Rule 7 of Tariff Circular 18-A.) 484. PASSES TO EMPLOYEES OF PRIVATE CAR LINES. — Conference BuUng 479 has no application to the of- ficers and employees of a private car company, .such as a fruit express company, that owns cars and leases them to a common carrier railroad, all its capital stock being owned by the lessee carrier and its employees being treated by the owning road in all respects as its own employees. November 1, 1915. 485. PASSES TO FAMILIES OP SECRETARIES OF RAILROAD YOUNG MEN'S CHRISTIAN ASSOCIATIONS. — Members of the family of a secretary of a Railroad Young Men's Christian Association are not entitled to use free passes. (See ruling 208f?.) Decemiber 22, 1915. 486. DIVISIONS OF JOINT RATES ON RAILWAY FUEL MUST BE PILED WITH THE CO]\U\IISSION.— For the pur- pose of giving the matter wider publicity, this means is adopted 780 CONFEKENCE RULINGS. of directly attending to the Commission's report and order in Filing of Divisions of Joint Bates Applicable to Railway Fiiel, 37 I. C. C, 265, and to its supplemental report and order in the same proceeding, 38 I. C. C, 169. By these orders Con- ference Ruling 209 was modified and carriers were required to file with the Commission sheets or statements showing the di- visions of all joint rates on railway fuel ; and to file all changes and amendments to such sheets or statements; and to file all new sheets or statements which in any wise affect or determine the division of joint rates on railway fuel. (See ruling 324.) Decemher 23, 1915. 487. ERROR IN ISSUANCE OF PASSENGER TICKETS. — Conference Ruling 481 revised. The contract portion and some of the coupons of a half-fare or lower class ticket were properly punched by the agent of an initial carrier, but the remaining coupons were overlooked. Upon inquiry, Held, That while adhering, under Conference Ruling 277, to the principle that the initial carrier in such cases must bear the full burden of the mistake of its agent and settle wdth its connecting lines on the basis of the class of ticket as honored b}^ them, neverthe- less, when the conductor of a connecting line honoring the un- marked or unpunched coupons indicates thereon that the con- tract portion of the ticket was properly marked or punched and that the holder was actually accorded half fare or lower class transportation, such line may accept its proportion of the fare applicable to the transportation so furnished. January 10, 1916. 488. RATES BETWEEN POINTS IN IHE UNITED STATES AND ADJACENT FOREIGN COUNTRIES.— In the absence of a published through rate between a point in the United States and a point in an adjacent foreign country, the published through rate between the border gateway and the domestic point should be applied in constructing the total rate. In the absence of a published through rate between the border gateway and the domestic point the lowest combination of legal rates should be applied. (See ruling 2205r.) Conference Rulings. 781 Fehruary 18, 1916. 489. INTEREST UPON OVERCHARGE CLAIMS.— Con- ference Ruling 464 amended and restated. Interest on an overcharge (by which is meant the amount col- lected on a shipment in excess of the legally published rate) ac- crues from the date of its collection by the carrier whether arising from an error in rate, weight, or classification. The Commission does not regard it as unlawful for a claimant to accept in satisfaction of his claim the ascertained amount of an overcharge without interest ; and the Commission is of the opinion that w^ien such a refund is made by the carrier within 30 days after the improper collection of the overcharge, it may be regarded, in accordance with a well-established usage, as a cash transaction, upon which interest does not accrue. The views expressed in this ruling shall be understood as ap- plying to all pending and unsettled overcharge claims and to those arising in the future, but not as authorizing or requiring the reopening of any claim which has been settled and closed by the acceptance by a claimant of the amount of an overcharge without interest. (See Scattergood d- Co. v. L. S. & M. S. By. Co., U. R. Op. 2040; and International Lumber Co. v. C. N. Rij. Co., 40 I. C. C, 283.) March 13, 1916. 490. TRACKAGE RIGHTS OVER AN INDUSTRIAL ROAD. — Upon inquiry by a common carrier respecting proposed trackage rights over a portion of a logging road. Held, That if the common carrier uses the logging road in interstate com- merce or as a higliM^ay for interstate commerce the logging road must keep its accounts as required by section 20 of the act ; it will also be subject to the provisions of the safety-appliance acts. March 23, 1916. 491. EXCHANGE OF SERVICES UNDER CONTRACTS BETWEEN RAILROADS AND TELEGRAPH, TELE- PHONE, OR CABLE COiMPANIES.— Upon inquiry whether under section 1 of the act' a railroad may contract with a tele- graph company to transport the latter 's property, either for use on the railroad's line or elsewhere, at a rate different to the 782 Conference Rulings. regularly published rate for such transportation : Held, That such an exchange of services may lawfully be made only upon the basis of the legally established rates of the railroad and on the basis of the fixed charges of the telegraph company regularly exacted of other customers for similar services; ex- cept that such carriers may so contract, without reference to said lawful rates and charges, for the transportation of the property of the telegraph company over the line of the con- tracting railroad company for use along the latter 's line and in the construction, improvement, or operation thereof; that is to say, when such transportation is not conducted by said railroad as a common carrier. (Amends and modifies ruling 219 and cancels ruling 364 ; see also ruling 305. This ruling cited in Chicago G. W. R. Co. v. Postal Telegraph Cable Co., 245 Fed. 600.) 1. Section 1 provides: "That nothing in this act shall be con- strued to prevent telephone, telegraph, and cable companies from en- tering into contracts with common carriers for an exchange of services." April 4, 1916. 492. REFUND OF FARE FOR CHILD UNDER FIVE YEARS OF AGE.— A passenger traveling with a child under five years of age intended to purchase one ticket, the tariffs pro- viding for the free transportation of children under that age. The carrier's agent, however, sold the passenger two full-fare tickets and they were used for the journey. Held, That the participating lines might join in refunding the fare paid for the child. (Compare ruling 163.) 493. FREE TRANSPORTATION TO INSURANCE SU- PERVISORS.— Insurance supervisors carried on the pay rolls of a railroad and devoting only a part of their time to the rail- road service, but who are subject to call, may lawfully use trip passes when traveling exclusively on the business of the railroad. (See rulings 208, 412, and 426.) April 22, 1916. 494. RESPONSIBILITY OF INITIAL CARRIER FOR STOLEN TICKETS HONORED BY ITS CONNECTIONS.— Conference Rulings. 783 Certain passenger tickets stolen from an initial carrier were later honored by the connecting lines. Held, That the initial carrier is responsible to its connections for their revenue, the tickets showing its approved stamp although fraudulently af- fixed thereon. April 27, 1916. 495. REFUND OF PASSENGER FARE IN EXCESS OF SERVICE RENDERED.— A passenger, applying for second- class carriage, was handed a first-class round-trip ticket from Minneapolis to San Francisco and return, and paid the tariff fare therefor. Under the belief that it was a second-class ticket he traveled in that class to Los Angeles, and then presented the unused portion of the ticket for redemption : Held, That re- fund should be made in the difference between the fare paid for the ticket and the fare applicable to a second-class one-way ticket from Minneapolis to Los Angeles. July 3, 1916. 496. RATES BASED ON VALUE OF PROPERTY AS DE- CLARED AT THE TIME AND PLACE OF SHIPMENT.— A tariff provided that — carriers, parties hereto, have no means of determining value of live stock when offered for shipment and live stock will not be accepted for transportation unless the shipper or his agent declares in writing the valuation at time and place of shipment. The rates named in tariff shall be applied on animals, the actual value of which does not exceed the following amount. Live stock valued at $5 per head at the shipping point was sold at destination at an average price exceeding that amount. Upon inquiry whether the charges should be assessed at the rate applicable to live stock of the value at which it was sold at des- tination : Held, That unde'r such a tariff provision the value de- clared by the shipper at the time and place of shipment is the basis for determining the rate applicable and that a reasonable difference between that value and the value at destination is not evidence of a misstatement of value at the point of origin. (See rulings 58 and 295; also In re The Cummins Amendment, 33 L C. C. 682, 693.) 784 CONFEHENCE EULINGS. October 3, 1916. 497. APPLICATION OP AVERAGE AGREEMENT UN- DER CODE OF UNIFORM DEMURRAGE RULES.— A con- signee at St. Louis, under proper tariff authority, reconsigned a shipment to a storage warehouse on the tracks of a terminal carrier at that point. Upon inquiry, Held, That as the terminal carrier had an independent average demurrage agreement with the storage warehouse, it must treat the storage warehouse as the consignee within the meaning of Conference Ruling 463. (See also ruling 409.) Octoher 16, 1916. 498. APPLICATION OF AVERAGE AGREEMENT UN- DER CODE OP UNIFORM DEMURRAGE RULES.— Before cars loaded by an industry were switched from its warehouse their contents were sold to another shipper to whom bills of lad- ing were issued by the carrier: Held, That the average agree- ment between the carrier and the industry may lawfully be applied. (See rulings 409 and 463.) November 8, 1916. 499. CANCELED TARIFFS NEED NOT BR KEPT POST- ED. — Under section 6 of the act to regulate commerce, carriers are required to keep posted for public inspection only their cur- rent tariffs and tariffs filed to become effective in the future. 500. RELEASED RATES UNDER CUMMINS AMEND- MENT AS FURTHER AMENDED.— Under the so-called Cum- mins amendment as further amended, carriers when authorized or required by the Commission may establish rates on property, other that ordinary live stock, based upon its agreed or declared value even though the value so declared or agreed to may be less than the true value of the property transported. November 28, 1916. 50L ISSUING CARRIER'S RESPONSIBILITY UNDER JOINT RATE PUBLISHED WITHOUT PROPER CONCUR- RENCE. — An originating carrier having pu])lished a joint Conference Rulings. 785 through rate without the concurrence of a connecting line, the higher combination of intermediate rates was applied. Fol- lowing du Pont de Nemmirs Powder Company v. Wabash Rail- road, 33 I. C. C, 507, Held, That the through rate should have been applied, the originating carrier assuming the difference between that rate ond the higher combination rate without assistance from the other carriers participation in the move- ment (See rule 68 of Tariff Circular 18- A.) January 8, 1917. 502. ROUTING OF SHIPMENTS BY CONSIGNEES.— In view of the provisions of an act of Congress entitled "An act relating to bills of lading in interstate and foreign commerce," approved August 29, 1916, Conference Rulings 332, 453, and 482 are rescinded. February 26, 1917. 503. HANDLING OF CIRCUS AGENTS AND ADVANCE CARS. — While the advance cars of a circus may properly be handled on regular trains under special circus rates, the use of special circus mileage books should be confined to employees and circus members accompanying the circus train and should not be used on regular passenger trains. March 12, 1917. 504. RELEASED AND DECLARED VALUE RATES.— Upon the petition of a vshipper to require a carrier to establish ,rates depending upon the declared or agreed value of the prop- erty transported, a hearing will be had and an order thereon will issue. L^pon a petition by a carrier for authority to es- tablish such a rate, the Commission will investigate its reason- ableness and propriety in such manner and by such means as it may deem proper; any rate so authorized must be published and posted as required by law and will be subject to suspension on protest and to attack on complaint as in the case of other rates. 786 CONFEBENCE RuLINGS. April 2, 1917. 505. TRAFFIC PASSING THROUGH THE UNITED STATES FROM A POINT IN AN ADJACENT FOREIGN COUNTRY TO A POINT IN AN ADJACENT FOREIGN COUNTRY. — With respect to a shipment inoviug from a point in Canada through the United States to Boston consigned for export to a point in Nova Scotia: Held, That, following the ruling announced in Seynwur v. M. L. & T. B. R. d? 8. S. Co., 35 I. C. C, 492, and Cannles v. G., H. t£- .Sf. A. By. Co., 37 I. C. C, 573, the Commission is without jurisdiction. Rescinded. See Ruling 514. April 17, 1917. 500. DEMURRAGE UNDER AVERAGE AGREEMENT ON STATE AND INTERSTATE SHIPMENTS.— Where the demurrage rules and rates on state and interstate traffic differ, Held, That credits on state traffic under an average agreement may not lawfully be offset against the debits on interstate traffic. April 23, 1917. 507. SHIPMENTS HELD AT TRANSIT POINT BEYOND TRANSIT PERIOD BECAUSE OF INABILITY OF CAR- RIER TO SUPPLY CARS.— Certain shipments were placed in transit under a tariff rule providing, in substance, that the bill- ing would not be recognized for Avarehousiug and reshipping purposes with respect to shipments on hand at the close of Au- gust 31 of any year. Upon inquiry whether, the carrier being unable to comply with a demand for cars made only a day or two before the clearing day, the shipper is entitled to a refund of the difference between the through rate and the sum of the local rates to and from the transit point: Held, it not being sho\vii that the carrier failed in its duty to supply cars upon reasonable request, the refund may not be made. (See Peck v. A., T. & S. F. By., U. R. Op. A-923.) May 12, 1917. 508. FILING OF INFORMAL COMPLAINTS. STATUTE OF LI]\riTATIONS.— Section 16 of the act to regulate com- Conference Rulings. 787 meree, as amended, provides that "All complaints for the re- covery of damages shall be filed with the Commission within two years from the time the cause of action accrues and not af- ter." In Blinn Lumber Co. v. Southern Pacific Co., 18 I. C. C, 430, it was decided that the two-year period is to be computed from the date of the delivery of the shipment. In all eases the complaint nuist be filed by or on behalf of the party who has borne the transportation charges as such. Inter- national Agricultural Corporation v. Louisv\ille & Nashville Rail- road Co., 29 I. C. C, 391, and Oden cf- Elliott v. SeaUard Aid Line Railway, 37 I. C. C, 345. In order that it may operate to stay the statute of limitations, an informal complaint must be filed with the Commisston within two years from the time the cause of action accrues, and (a) must name the defendant carrier or carriers; (&) must allege a violation of the act and ask affirmative relief; and (c) must describe the shipment by naming the point of origin and destina- tion, the consignor and consignee, the date of the shipment, the initials and number of the car, in the case of carload shipments, or {d) must give such available information as may be reason- ably necessary to enable the defendant carrier or carriers to identify the shipment. A notification to the Commission of the possibility or intention of filing a complaint for the recovery of damages is not such a filing as is contemplated by the statute. An informal complaint embodying the information above in- dicated should be filed with sufficient copies to enable the Com- mission to send one copy to each defendant carrier as notice to it of the complaint, retaining one copy for its own use. When a complaint for reparation has been before the Connnis- sion informally on the special docket or otherwise, and the par- ties have been notified by the Commission that the complaint is denied or that it can not be determined informally, or when the parties voluntarily withdraw the complaint from informal con- sideration, it may not be reconsidered informally if not again submitted to the Commission within six months from the date of such notification or withdrawal, nor may it be filed as a formal complaint unless so withdrawn : Provided, however, That this rule does not apply when the two-year period from the date of de- livery of the shipment has not expired. (See rule III of the Rules of Practice.) ]\[odified ruling 516. 788 CONFEBENCE RULINGS. June 19, 1917. 509. DRAYAGE EXPENSE RESULTING FROM ERRO- NEOUS TERMINAL DELIVERY.— Co;(/erence Ruling 474-b amended and 392 rescinded. — In case the consignee elects to ac- cept the shipment at the terminal where delivery has been er- roneously offered rather than insist upon delivery at the ter- minal designated, the shipper or the consignee is entitled to re- cover damages in the sum of the difference between the expense of drayage actually incurred at a reasonable charge therefor and the expense which would have been incurred if proper delivery had been effected by the carrier. The carrier responsible for misrouting the shipment, resulting in a claim of this character, may reimburse the shipper or consignee entitled to reimburse- ment wholly at its expense without a specific order of the Com- mission in each case. In pursuing this course carriers must accept full responsibility for the correct application of the rule and must make reports to the Commission in accordance with its order of July 3, 1917, June 21, 1917. 510. WRITTEN NOTICE TO CARRIER CONSTITUTES PRESENTATION OF CLAIM.— Modifying conference ruling 456. It is the view of the Commission that the provision in the uniform bill of lading requiring that claims for loss, damage, or delay must be made in WTiting within a specified period is legally complied with when the shipper, consignee, or the lawful holder of the bill of lading, w^ithin the period specified, files with the agent of the carrier, either at the point of origin or the point of delivery of the shipment, or with the general claims department of the carrier, a claim or a written notice of intended claim de- scribing the shipment with reasonable definiteness. (See G. F. <& A. Rij. v. Blish Milling Co., 241 U. S., 190.) Julij 19, 1917. 511. PASSES TO FURLOUGHED EMPLOYEES ENTER- ING MILITARY OR NAVAL SERVICE OF THE UNITED STATES. — Upon inquiry: Held, That employees of common carriers who enter the military or naval service of the United States in the present war and who are carried on the records of Conference Rulings. /89 the carriers as furloughed employees, to be restored to the car- rier's service at the termination of the war, are furloughed em- ployees within the meaning of section 1 of the act to regulate commerce and the carriers may lawfully grant free passes to dependent members of their families. July 20, 1917. 512. [NDUSTRIAL SWITCHING TRACKS.— Conference Ruling 427 modified and amended. — A carrier may not lawfully build a switch track inside the plant boundary of an industrial company without adequate compensation therefor. And an agreement by the industry to give the carrier all or a part of its traffic as compensation for the building of the track is not regarded as "adequate compensation." (See Ruling 110.) 513. EXPRESS COMPANIES MAY NOT CARRY PROP- ERTY FOR OFFICERS AND EMPLOYEES EXCEPT AT PUBLISHED RATE.— Upon inquiry. Held, That the act to regulate commerce as amended does not authorize an express company subject to the act to carry property either for its own officers or employees or for the officers and employees of other common carriers, except at its legally published rate. (See rulings 157, 208&, and 361.) 514. In conference on March 25, 1918, the Commission ap- proved the following ruling rescinding conference ruling 503, concerning the HANDLING OF CIRCUS AGENTS AND AD- VANCE CARS: In the light of changed practices, conference ruling 503 is rescinded pending the issuance of a further ruling if that be found necessary. The present practices may be continued pend- ing such further ruling. 515. In conference on May 4, 1918, the Commission approved the following interpretation of conference ruling 314, concern- ing the COLLECTION OF UNDERCHARGES : RULING 314 INTERPRETED.— In conference ruling 314 the Commission held it to be the duty of common carriers to ex- haust their legal remedies to collect undercharges. But the Commission has pointed out from time to time and now holds that this ruling does not require the filing of a suit where the party liable for the undercharge cannot be located, or service cannot be made, or where upon investigation by the carrier in 790 Conference Rulings. good fnith it is found that legal process would be futile and ineffectual. 516. The following Conference Ruling has been approved and adopted : RIGHT OP ACTION TO RECOVER REPARATION ON ACCOUNT OF UNLAWFUL CHARGES ACCRUES WHEN THEY ARE PAID.— The Supreme Court of the United States in TJ. S. ex rel. v. Interstate Commerce Commission decided on April 29, 1918, held that the right to recover reparation on ac- count of unlawful freight charges accrues when they are paid, and not upon the delivery of the shipment as held by the Com- mission in Blinn Lumher'Co. v. S. P. Co., 18 I. C. C, 430. The Commission will therefore entertain petitions for the re- consideration of any such formal or informal claims that were filed within two years from the time the charges were paid and were denied by the Commission under the ruling of the Blinn case. Such petitions should be filed not later than December 31, 1918. Modifying Conference Ruling 508. 517. In conference on April 14, 1919, the Commission ap- proved the following restatement of conference ruling 362 : ASSIGNMENT OP CLAIM.— In awarding reparation the Commission will recognize an assignment by a consignor to a consignee or by a consignee to a consignor, but will not recog- nize an assignment to a stranger to the transportation records. The phrase ".stranger to the transportation records," as here used, has no reference to the lawful rights of an undisclosed principal, either in matters of reparation before the Commission or the adjustment by the carriers of plain undercharge or over- charge claims. Amending ruling 246. See Oden rf* Elliott v. »S'. A. L., 37 I. C. C, 345, and Robinson Co v. Am. Express Co., 38 I. C. C, 735. 518. The Commission in conference October 6, 1919, adopted the following conference ruling which rescinds Rulings 405 and 473. DEMURRAGE AND STORAGE RULES.— Upon inquiry find to remove the confusion that exists among carriers and shippers, Held, That off-track storage not in transit, track stor- age and demurrage are controlled bj^ the tariffs in effect con- temporaneously with the accrual of these services, and there- fore are subject to such changes as la\\^ully may be made in the applicable tariffs during the period of accrual ; that off -track storage in transit is controlled by the tariffs in effect upon the date of shipment. (Rescinding Conference Rulings 405 and 473.) *INDEX TO CONFERENCE RULINGS. Arsorption of switching charges: Ruling, carrier to pay terminal line for switching and not leave it to consignee 64 intermediate industry, disapproved 424 on competitive traffic only; application of fourth section . . 304d on inbound cars, accrued claim not invalidated by cancella- tion of tariff 136 Accident: exception in case of, no authority over competency of em- ployee or condition of signal 288 unavoidable, exception in hours-of-service law 88 Accounts of telegraph and telephone companies subject to act . . 305e Accrual of cause of action 220/ Address: damages resulting from erroneous, on notice of arrival .... 127 duty of carriers in connection with transmitting 127 consignee's, omitted from routing instructions 358 failure to send notice of arrival to named 366 Adjacent foreign country: Canadian local rate not legally applicable unless filed with Commission 256 car-service charges to and from Canada 191 divisions of rates to and from Mexico must be published .... 269 municipal governments in, no free transportation 118 one or more points in; long-and-short haul 318 overcharge on shipment to Mexico 126 railroad officials in, passes to 434 rule applicable in absence of through rates between points in the United States and 488 shipments to, export business 353 traffic through the United States from and to an 505 Admission, by erring road of responsibility for misrouting 198, 214rt, 214/ Advance charges: by forwarding company, shipment covered by through bill of lading and through rate 401 covering cost of feed and services in transit 442 customhouse brokerage fees and import duties 444 failure to bill demurrage as 416 to boats that are not common carriers, unlawful 62 to acean carriers on import traffic 428 (791) 792 Index to Conference Rulings. Ruling Advance of rates: while import shipment on seas Ill discretionary with Commission whether to suspend 322 request for suspension of; what must be shown 322 ♦For general index see end of Volume Two. Ruling. Advertisikg. State mileage book exchanged for; Interstate journey ; 815 Agents (see also Employees): astray shipments resulting from, error 817 awaiting authority to accept check for charge demurrage ac- crued '. 89 Canadian fares, in United States selling tickets 34 caretaker accompanying shipments where carrier furnishes refrigeration 171 carriers', acting as forwarding agent for shipper 98, 337, 8&5 disciplinary matters between carrier and its agent, Com- mission will not Intervene 69, 105 duty of, when rail-and-water rates available (routing) 190, 316, 321 duty of, with respect to routing and quoting rates .... 214c, 215d error of, in not limiting ticket 69, 277 joint, error in misrouting shipment 253 labor, may not lawfully receive passes 411 land and immigration passes to, if bona fide employees .... 208a misrouting of passengers 113, 167 "necessary agents" in free transportation for Government or charity 150 posting name of, at blind sidings 289 rate and route in conflict, duty of 474 relief of, does not relieve carrier from collecting under shipper's, binds principal when declaring valuation 188 station, devoting part time, no passes 446 tariffs filed by tariff agent, conflict with carrier's own tariffs 50, 104 tickets to entertainments in connection with excursions, may sell 221o Agreements: baggage agents' association, with respect to forwarding bag- gage inadequately routed 326 between carriers respecting responsibility for routing traffic 198 between carriers for division of joint rates or fares must be flled 209 between carrier and shipper respecting delivery, no refund of drayage 235 between carrier and shipper respecting prepayment to non- agency stations 20 Index to Conference Rulings. 793 Ageeements — Continued. Ruling exchange of services under, between railroads and telegraphs, telephone, or cable companies 491 Allowances: floor racks in refrigeration cars furnished by shippers 292 grain doors, maximum per door and per car must be pub- lished 78, 132, 267 must be published and nondiscriminatory 360 to shipper for fitting cars must be in tariff 19, 78, 132, 292 .\ll-rail route: all-rail route defined 316 car-ferry route included in term "all-rail" 316 duty of carrier to forward by, in absence of instruction . . 190, 316 Amendment to tariff. See Supplement to tariffs; Tariffs. American Association of Railroad Superintendents, free trans- portation , 371 American Railway Association, household goods of inspectors . 335 Applications for passes must show sex of children 290 Application on special docket signatures to 129 charges 151 Argument, notices of oral 408 Army, transportation of, under orders 218 Army and Navy, no free transportation to officers of 208d Assignment of reparation claim 362 Association, commercial, no free excursion by carrier 272 Astray shipments: accepted by consignee at point found; adjustment of de- murrage 31 return of 217 switched in error; right of switching line to charges 240 Attorney : employed on monthly basis, but has other practice 41:J local, not regularly employed, family of 95a not devoting substantially all of time 426 Auditors' train, to collect tickets, passes 400 Automobile cars, safety appliances 329 Automobile lines, officers and employees no passes 95gr Average agreement, application of under uniform demurrage rules 409, 463, 497, 498, 506 Baggage: checked by initial line with routing inadequately specified 326 property transported as, date of 455 sample, checked and sale of at destination 445 storage on, refunded to passenger injured in wreck 61a Baggage express cojipanies. passes only to baggage agents ....95, 216 Baggagemen on trains subject to hours-of-service law 275 Ballast cars, safety appliances 329 Parked claims. See Limitations. 794: Index to Conference Eulings. Ruling Bees in hives, passes to caretakers * 112 Belt line, municipal, subject to act 89 Bill of lading (see also Unifokm hill of lading) : date of issuance not necessarily determinative of applicable rate 172 clear, issued, and failure to bill demurrage 41G containing provisions which can not be complied with 474c destination erroneously stated in, by shipper 237 exchange, at intermediate points showing different consignor, consignee, or destination 415 exchange, route, and origin should be shown 227 loss of transit privilege through error in 348 naming route, and rate applicable over different route, mis- routing 214, 243, 474c rules and regulations governing export 378 shipper's error in failure to make required notation on .... 348 signature to released valuation clause 22*5 through, over rail and water line, no joint rate 354 through, over rail and water line, through published rate ap- plies and not combination of locals 401 uniform; measure of damages; value of lost goods 387 Blind sidings, posting name of agent at 289 Blockade. See Diversion. Boat line. See Water lines. Body of deceased person. See Corpse. Boiler compound, pass to instructor in use of 336 Bonds: to secure repayment of claims paid on presentation 236 valuation of, when shipped by express 58 Books of Railway Y. M. C. A. Library, free transportation 330 Box cars, safety appliances 329 Branch line station, rate from, not directly intermediate 304f Breaking bulk, stopping cars for part unloading, legal when under tariffs 233 Bridge company: nonoperating, no passes to officers and employees 263 when not subject to act 381 when subject to act 399 Brokerage charges need not be published by express companies 300 Brokers, customs, employed on commission basis (passes) .... 454 Bunching cars, demurrage charges resulting from owner's in- ability to unload 142 Bureau of carriers, pass to employee and members of family 371, 448 BURB^AU FOR SAFE TRANSPORTATION OF EXPLOSIVES, gOOds Of inspec- tor 335 Bus. See Transfer company. Cable companies. See Telegraph companies. Index to Conference Bulings. 795 Ruling Canada {see also Adjacent foreign countries): Canadian customs and immigration inspectors, passes .... 345 Canadian superintendent mail service, no passes 459 car-service charges to and from 191 fares for immigrants between points in, no jurisdiction 24 local Canadian rate note legally applicable unless filed with Commission 256 misquotation of rate to, undercharge must be collected .... 262 Canal boat line, subject to act when operating in connection with rail line 241 Canal Zone, tariffs containing export rates 359 Cancelled tablffs : need not be kept posted 499 Cancellation of accrued storage charges 403 must be specific and complete 101 no bar to accrued claim for absorption of switching charges 136 reissue of cancelled rate 344 tariffs and rates remain in effect until specifically cancelled 50, 70, 104 Car and party : passes, unlawful in form 95; private, diverted account blockade, entitled to shore-line mile- age rate 13S Cakei'Akers: accompanying gasoline motor car moving under own power 334 accompanying fruit by express, free transportaiicn in pas- senger cars 179 accompanying property transported for Government; to ex- positions; persons or property transported for charity .. 150 bees in hives, passes to ] 12 going on passes intending to return with fruit 1 milk 21 passes only for trip or round trip, not annual 37 refrigeration included in rates, no passes to shippers ac- companying freight 171 return to point of origin only over original route 189 Car ferries (see also Ferries): car-ferry route, defined 316 car-ferry route included in term "all-rail" 316 car ferry connecting two interstate rail lines by which it is owned 374 hour-of-service law applicable 108 route equivalent to all rail , 316 Car kitting, refund, or allowance to shipper for, if in tariff. . 19, 78, 132, 292 Car lighting company, passes to inspectors, unlawful 169 Carload rate, not applicable where shipments delivered in sepa- rate less-than-carload lots 175 Carload weight. See Minimum weight. 796 Index to Conference Rulings. Ruling Carrip:rs {see also Delivering carrier): boats that are not common carriers may not receive advances 62 erring, liable for demurrage 220/ erring, liable for misrouting ia7, 198, 199, 286, 474a exchange of service with telegraph, telephone, or cable companies 491 excursion tickets sold prior to effective date of tariff 467 issuing half rate or lower-class tickets and failing to punch all coupons 487 issuing, responsibility under joint rate published without proper concurrence 501 lessee roads not serving public as common carrier, tariffs.. 180 liable for demurrage and storage; failed to forward notice of consignee 366 located wholly within a State, when subject to the act 197, 368, 418 loss of return portion of ticket by, agent 458 misrouting of shipment of railroad supplies 143 must investigate before paying claims 236, 462 officials of, in adjacent foreign countries (passes) 434 Panama Canal act interpreted 461 participating in interstate transportation without legal rates; prosecution 90, 184, 194 passes to employees 95 payment for telegrams or messages to or from shippers 302, 327, 351, 363, 480 rail common, in nonadjacent foreign countries (passes) .... 475 railroad carrying interstate traffic for express companies subject to act 197, 368, 418 railroad system must show corporate title 450 reporting separately may not transport free for one another 225 statute of limitations nonoperative as between carriers .... 306 tickets stolen from initial, and honored by connections .... 494 trackage rights by one railroad over another, as device to avoid charges 153 Cars: allowances to shippers for grain doors, etc. ..19, 78, 132, 267, 292 bunched in transit, demurrage resulting from 142 carload shipment transferred in transit into two cars 357 carriers, out of service on storage tracks 123 commissary, operated by carriers unlawful 257 demurrage on construction cars and derricks used by contrac- tors 270 destroyed on foreign lines, transportation of trucks 224 duty of carriers in through route to furnish through cars or transfer free 59 handling of circus advance, and use of special circus mileage books 503 large car loaded, transferred by carrier to two small cars . . . 273 Index to Conference Rulings. 797 Cars — Continued. Ruling larger car furnished than ordered; connecting lines without tariff for lower minimum 274 leased, when are private 79b, 122, 128 loaded, erroneously placed in lieu of empty 240 motor, moving under their own power 334 private, defined, in connection with demurrage.. 79&, 122, 128, 222 private, diverted, short-line mileage rate applies 13S private, out of service on carrier's storage track demurrage. . 123 rate applying only on coal in box cars; carrier furnishing hopper cars liable for excess charges 120 repair of, on foreign lines 333, 373 safety appliances required on (handhold) 67 sleeping cars, privilege of occupying at destination 51 special rates on shipments in foreign 470 transfer of shipment to another car in transit 331 two small cars furnished in lieu of car ordered 339 Cars of special constbuctiox, what included 328, 329 Car service.. See Demurrage. Casualties, exception in hours-of-service law 88 Cartage. See Drayage. Cause of action, when accrues 220y Change in rate, while import shipment on seas Ill Charges (see also Rates): brokerage, need not be published by express companies .... 300 delivering carrier must collect lawful, on prepaid shipments 156 for transportation services must be paid in money 207 outbound, can not be refunded to consignee and billed as ad- vances on return movement 249 proceeds of sale for charges insufficient to cover freight and demurrage 41, 145 telegraph and telephone, must be fair and reasonable 305 T;elegram or message to or from shippers . . . .302, 327, 351, 363, 480 waiver of, loaded car placed in lieu of empty 240 Charity: passes to caretakers with persons or property carried free for charity 150 reduced rates to, without tariffs 208e Charter, train at published rate per car or per train, tickets sold by charterer at special fare 82 Check, agent awaiting authority to accept for freight charges; demurrage 39 Checking baggage: by initial line with routing inadequately specified 326 sample, and sale of at destination 445 Child (see also Family): commutation tickets for, must not discriminate in favor of school children 99 798 Index to Conference Rulings. Child (sec also Family) — Continued. Ruling sex of, must be shown on application for passes 290 under 12 years, full-fare ticket purchased, no refusal 163 under five, traveled, full-fare ticket purchased 492 Chinese, deportation of, by Government (fares; subsistence) . . 107 Circulars and rulings of Commission distributed to carriers .... 211 Circuses, handling of advance cars and use of special circus mileage books 50S Claims (see also Reparation; Special reparation): accrued, for absorption of switching charges, not invalidated by cancellation of tariff 136 adjustment of, for damages resulting from misrouting . . 214, 474 assignment of 362 barred by statute 220;, 307 bureaus filing reparation complaints, order in favor of ship- per 246 carrier must investigate before paying 236, 462 damages due to errors in telegraph messages 317 demurrage refunds 79d drayage expense resulting from misrouting, adjustment of 474, 509 filing of informal complaints, procedure; statute of limi- tations 508 interest upon overcharge 489 legal expense to collect undercharge valid, against carrier at ' fault 16 loss and damage while in charge of truckman 441c misrouting, adjustment of, under Ruling 214 474 misrouting, barred before Commission by statute; jurisdic- tion of courts 139, 286o, b misrouting, Commission will exercise jurisdiction and make award against guilty carrier 286e misrouting, exclusive jurisdiction over 286a misrouting, principles fixing liability and governing claim • adjustments 198, 205, 214, 286, 397, 474, 509 offsetting of under or overcharge 323 special reparation, principles underlying 356 statute does not run as between carriers 306 written notice to carrier constitutes presentation of 510 " Classification, does not govern tariff unless referred to 141 Class rates. See Rates; Commodity rates. Cleaning in transit. See Transit privileges. Coal cars. See Cars. Coal contributed to college 39S Coal for steam purposes may not be given special rate 34 Coastwise business, defined 853 Coastwise traffic: moving on through bill laid to inland rail point and through rate effective 401 over Panama Railroad 369 Index to Conference Eulings. 799 Rulin? College, coal contributed to 398 Collection of charges. See Charges; Payment. CoLLECTio'N OF demitrrage. See Demurrage. Collection of shipments by carriers and free switching for In- dustries 97 Collection of undercharges. See Undercharges. Colon, Panama, shipment to; export rates 359, 468 Colonist tickets. See Tickets. Combination rates (see also Rates; Fares): of intermediate rates or fares less than through rates or fares 220g, 298, 443, 488 joint, or fares to common points and local rate or fare be- yond 215 Commercial association not entitled to excursion at carrier's ex- pense 272 Commissary car operated by carrier, unlawful 257 Commission : correspondence with, if quoted, must be fully and accurately 29 correspondence with, conducted through designated officers of carriers 210 credentials of examiners must be honored 260 official circulars and ruling; distribution of 211 Commission for transportation, use of, by post-office inspectors off duty 377 Commissioners of states, not to use passes on interstate jour- neys 35 Commission: import traffic, to consignees, not sanctioned 7 on traffic, equivalent to rebates, illegal 221ia telegraph company, to persons, firms, company where office located, none 407 Commodity r.\te«: may not be applied to transportation of passengers 212 supersede class rates, although carrying high minimum weight 84 tariff naming, per car and also class rate 483 trade name, rates on articles sold under 273 Common arrangement (see also Through routf;), through bill- ing over rail-and-water line 354 Common point, rates on point making lowest combination .... 215 Commutation fares and tickets: application of fourth section of amended act 304a compared only with tickets of same character under section 4 310 exception as to tariffs in section 22 not applicable to 208e must not be discriminatory; limited to school children .... 99 state, may be used on interstate journey 26 Company material: destroyed on foreign line, return free to road owning 224 800 Index to Conference Rulings. Company material — Continued. Ruling division of joint rate on fuel coal 324, 486 free carriage returning to manufacturers for repairs 22 free transportation by one carrier for another 225 giving express company benefit of rail carrier's division . . 372 lease by carrier of trackage rights over another, as device to avoid charges 153 lease by carrier of trackage rights to haul general traflBc . . . 439 misrouting of 143 regulations concerning explosives apply to 388 repair of car for free transportation 333 repair of cars on foreign lines 373 Compensation, for building industrial switch tracks 512 Competency of railroad employees not inquired into by commis- sion 288 Complaints for reparation. See Claims; Reparation. Concentration. See Transit privileges. Concession : by means of leasing carriers property in consideration of lessee's shipments 94 unpublished allowance 360 Concurrence: agent files tariff, noncurring carrier refiles as its own with- out securing concurrences, unlawful 13 by carrier in tariffs of another does not legalize local use of local rates 281 by lessor company in rates published by lessee 402 by switching roads 341 error in stating concurrence number 347 in tariffs for through traffic by leased lines jointly operated through separate company 229 issuing carrier's responsibility under joint rate published without proper concurrence 501 railroad system must show corporate title 450 Conductor, error of, in honoring void ticket 105 Conflict: between rate and route 474c In tariffs, rates, or fares 50, 70, 104, 239 Connecting carrier : discrimination in division of rate on fuel coal 324 for misrouting involving 137, 199, 286c two small cars furnished in lieu of car ordered 339 Consignee: commissions to, on imports, not sanctioned 7 disclosing name of 358 failure to notify, at distant point, demurrage 261 f. o. b. shipment, liability for demurrage 96 omitting the address of 3831 Index to Conference Rulings. 801 Consignee — Continued. Ruling reconsignment includes changes of, at same desiination . . 72 routing of shipments by 502 shipment accepted at destination by, and subsequently re- turned 249 unknown at destination, notice of arrival of car mailed, de- murrage accrues 144 Consignor: error of, in loading car; shipment recalled in transit charges for actual haul 248 error of, in marking L. C. L. shipments 433 exchange of services under, between railroad and telegraph, charges upon unauthorized reconsignment 237 f. o. b. shipment, liability for demurrage 96 must pay lawful charges on shipment billed as prepaid .... 20 shipment returned to, by consignee with advances 249 should cooperate to avoid mistakes 215(J Continuous carriage. See Through rate. Construction, private side track, by shipper, cost repaid by car- rier 110, 512 Construction cars. See Cars. Contracts : exchange of services under, between railroad and telegraph, telephone or cable companies 491 for division of joint rates or fares must be filed 209 free transportation of materials and men for icing plant . . 124 free transportation of material for contractors under agree- ment therefor 208c pass to officers of nonoperating road 355 pass to instructor in use of appliances and material 346 solicitors for excursion, form of contract with 221c tailor under contract making uniforms for railway em- ployees, passes to 134 telephone and telegraph service; carriers must file contracts for 219 Contribution: of coal to college 398 to expense of entertainment (excursion) 2216 Convicts, no reduced fares 431 Cooks may be carried free on private cars 30*1 Correspondence: with Commission, if quoted, must be full and accurate .... 29 with Commission, conducted through designated officers of carriers 210 Correspondence school, agents of, not entitled to passes 208« County authorities, transportation free or at reduced rate, lawful 452 802 Index to Conference Rulings. Ruling Coupon for water transportation exchangable for rail trans- portation . ... - 361 Courts : death of round-trip ticket holder before return trip made; refund 393 deceased wife of employee, free transportation to place of interment 174 employee killed or died in service, free transportation of . . 18, 193 ex-employee, no free transportation 285 jurisdiction in misrouting claims that are barred before Commission 286a witnesses attending proceeding in 319, 414 Credentials of examiners must be honored without special let- ters of advice 260 Creosoting lumber: transit privilege of 18 months not excessive 232 Cross reference: in tariffs 101, 276 terminal charges, Canada 191 Cuba, tariffs containing export rates 468 Cummins amendment: released rates under, as further amended 500 Customs brokers: acting as consignees, no commissions on imports 7 employed on commission basis (passes) 454 Customs clearance, brokerage charges for, need not be published 300 Customs inspectors, Canadian passes 345 Damaged shipments, demurrage on 451 Damages: adjustment of claims for, resulting from misrouting 474 error in transmission of telegraphic message, no jurisdiction 317 measure of, under uniform bill of lading 387 refusal of shipper to pay ice charges 343 resulting from delayed notice of arrival of fruit at desti- nation 127 Dangerous articles, regulations concerning, apply to company material 388 Date effective (see Efiective date of tariffs) : excursion ticket sold before, of tariff 467 shipments received prior to, of reduced rate 172 Deadheading employees not on duty under hours-of-service law 74 Deceased employees. See E.mployees; Corpse. rates based on, at time and place of shipment 496 IlECL^VEED valuation (.SCC VALUATION): Delay: damages resulting from delayed notice of arrival of per- ishable freight 127 of vessel; no waiver of demurrage 358 Index to Conference Rulings. 803 Ruling trains, causing passenger to miss connections, invalidating ticket 27 Deficit resulting from sale of freight to pay charges 41, 145 Definition of "net," "gross," and "long ton" 131 Delivering carrier: must collect demurrage, although another carrier at fault.. 220/ must make delivery at terminal designated 474o Delivery : drayage expenses resulting from misrouting and erroneous terminal 509 duty of carrier to make, in accordance w^ith routing instruc- tions 474a prevented by local law, prepaid charges not to be refunded 367 shipper's instructions must be followed 214b wrong terminal, resulting from misrouting, no refund for drayage 234, 283, 509 Demurrage (see important note to Ruling 242) : accruing while agent waits authority to accept check for charges 39 accruing on "order notify" shipments through failure to notify, such shipments being prohibited by tariffs 261 astray shipment accepted by consignee at point found .... 31 average agreement, application of 409, 463, 497, 498, 506 bunching cars in transit 142 Canada, on traffic to and from, terminal charges must be published 191 carriers' cars out of service on storage track 123 claims for refund of 79(J clear bill of lading issued and failure to bill, as advanced . . 416 code of National Car Rules 313 collected under tariff not filed, refund denied 194 construction cars and derricks 270 damaged shipments 451 delivering carrier must collect on misrouted shipments; con- signee should accept delivery and pay charges 32, 220f destination, when tariff is effective 405, 473 due to vessel delay; no waiver 358 erring carrier liable for 220/ failure to give notice at named address 366 f. o. b. shipments, at point of origin, against consignor or consignee 96 in transit, when tariff effective 473 jurisdiction of Commission exclusive over demurrage on in- terstate traflSc 54, 223b must be published when applied on interstate shipments . . 223a occasioned by strike, no refund 8 outbound shipments, when tariff effective 478 804 Index to Conference Rulings. Demurrage — Continued. Ruling private cars on private sidetracks 79, 121, 128, 222 private car, out of service, on carrier's storage track 123 private car owned by one shipper but used by another 122 private car, when subject to 222 proceeds of sale insufficient to cover transportation and de- murrage charges 41, 145 published in separate tariff or originating carrier without cross reference in rate tariff 276 sidetrack on marshy land sank with cars, demurrage waived 117 tariffs used before August 28, 1906, but not filed by carriers until later 100 terminal line refused to accept and switch until freight charges paid, demurrage accrues 144 transferred from one to two cars in transit, demurrage on one 357 Uniform Code indorsed by Commission 242 waiver where proceeds of sale insufficient to cover all charges 145 weather or floods preventing unloading, tariff rule waiving 135 where two small cars are furnished in lieu of car ordered . . 339 Deportatiox of Chinese for Goverxment, no reduced fares . . . 107 Destination : astray shipments sent to wrong, through agent's error .... 217 erroneously billed by shipper, carrier should secure disposi- tion orders 237 reconsignment includes changes in 72c shipment accepted at, and subsequently returned to shipper 249 Destructions: maps, profiles, plans, specifications, etc., and other records. pertaining to physical property 435 of canceled tariffs by carrier 252 of records, regulations apply also to joint agencies 271 of records, express company retired 440 of records, of lessor company 375 of records, sale of records 349 telegrams and cablegrams 460 Detour of trains because of blockade; adjustment of revenues betw^een carriers 213 Device: division of joint rate on fuel coal 324, 486 evasion of through rate by employing carriers' agents .... 337 evasion of through fare by selling local tickets 24 evasion of through rate by billing locally and rebilling .... 98, 337, 365 lease by carrier of trackage over another road, avoid charges on m^aterial \ 1*53 lease of carrier's property in consideration of lessee's ship- ments 94 Index to Conference Rulings. 805 Ruling Dining car; charges for meals; no jurisdiction 384 DiREtTioN, rates published in one direction do not apply in re- verse direction 52 Discipline, matters of, between carriers and their agents and em- ployees 69, 105 Disclosing information; name of consignee 356 Discrimination between connecting lines in division of rate on fuel coal 324 Distance tariits to show distance between freight stations .... 202 Distinction: in rates, based on difference in use to which shipment is to be put, unlawful 34 in rates, between shipments handled by steam and electricity, unlawful , 2 Diversion (see also Washout) : by consignor, account washout on connecting line, carrier not liable 147 charges, carload transferred into two cars in transit 357 of shipment account floods, carrier liable for excess charges as misrouting 83 of traffic. Adjustment of revenues between carriers 213 private car and party, account floods, short-line mileage rate 138 rules reserving to carrier right of 146, 183 special understanding not in tariff 235 transit privilege lost by reason of, and misrouting 230 Divisions: contracts for, must be filed; division sheets need not be filed 209 company materials moving under joint through rates .... 225 express company not entitled to rail carrier's 372 Mexico, publication of, to and from . . . 269 of charges on detoured trains and diverted traffic 213 of overcharge on misrouting claim 205 of joint rates on fuel coal 324 of joint rates on railway fuel must be filed 486 refund of overcharge on shipment to Mexico based on, of through rate 126 Doors, grain, allowances to shipper for furnishing 78, 132, 267 Drayage: absorption of charges and tariff requirements 441 additional, charges and tariff requirements 441 adjustments of claims for damages resulting from misrout- ing 509 initial line liable for drayage charges resulting from its mis- routing 383 misrouted shipment, wrong terminal delivery, no refund.. 283 no refund where routing instructions followed, but shipment not diverted in accordance with understanding not in tariff 235 806 Index to Conference Rulings. Ruling resulting from wrong terminal delivery due to misrouting. 234, 283, 509, 474a Drummers, preference to drummers or other special classes un- lawful 45 Eastbound rate can not be applied westbound 52 Eating Houses: operated for employees and passengers, free transportation for 87 no passes to employees 340 Effective date of tariffs: first tariff filed by new carrier, date omitted, effective im- mediately 73 issued and used before August 28, 1906, but not filed until later 100 none, illegal, never effective 12 Sunday, lawful 47 Election by shipper as to released rate; carrier must inquire . . 160 Electricity and steam, distinction in rates on traffic handled by, unlawful 2 Electric line. See Street railways. Elevator, lease by carrier of land for, at nominal rental 325 Elb^'ator, leased by carrier at nominal rental 421 Embargoes account of revolution in adjacent foreign countries . . 437 Employees (see also Agent) : American Asso. of R. R. Superintendents, free transportation 371 American Ry. Asso., free transportation 335 application of hours-of-service law 56, 74, 88, 108, 287, 342 baggagemen on trains, subject to hours-of-service law .... 275 bodies of, deceased or killed in service, free transportation 18, 193 body of deceased wife of, free transportation to place of in- . terment 174 bridge company, nonoperating, no passes 263 Bureau for Safe Transportation of Explosives, free trans- portation 335 car-lighting company, no passes to inspectors 169 chief interchange inspectors, free transportation 371 competency of, Commission will not investigate except in case of accident 288 cooks, porters, and waiters on private cars may be carried free 301 discharged, transportation of household goods 109 disciplinary matter between carrier and 69. 105 entering another carrier's service, no free carriage of house- hold goods 255 ex-employees, families of, passes 158 ex-employees, traveling to enter service of common carrier. Index to Conference Eulings. 807 Employees — Continued. Rulins passes to 102 express companies, and their families, passes to 157 family of deceased pensioned, passes 47G free transportation for 95 furloughed and on leaves of absence, entitled to passes 55 furloughed, entering military or naval service of United States 511 household effects of ex-employees 109, 255 household effects, free transportation of 208b, 255 hours-of-service law, application 58, 74, 88, 287, 342 hours-of-service law, application of, to employees on ferries . . 108 inspection bureau, free transportation 371 insurance supervisors carried on pay rolls devoting only part time but subject to call 493 joint employee of express and railroad companies, free trans- portation 361 killed in service, passes to families 173, 193 laborers receiving supplies from contractor 413 laborers receiving supplies shipped by carrier's agent 469 must be actually in service of carrier to obtain pass 208a must devote substantially all time to service of carriers to obtain pass 412, 426, 446, 449, 454, 466 nonoperating road, employees of, no passes 355 nonoperating road, families of deceased employees, free trans- portation 352 ocean common carriers, passes 475 omnibus and baggage express companies, passes to .... 95a, 216 on leave to fill term in public office, pass 308 private car line (passes) 479, 484 private; porters, cooks, and waiters may be carried free . . 301 property of, may not be transported by express com.panies ex- cept at published rate 513 rail common carriers in nonadjacent foreign countries (passes) 475 receivers and officers, entitled to free passes 165 restaurant employees 87, 340 station agent devoting part time, no pass 440 tailor making uniforms for railway employees, under con- tract, passes 134 water lines; interchange of passes with rail lines 196 weighing bureau, free transportation 371 Entertainments, carrier may arrange for or contribute to, in order to stimulate travel 221 & Equalization over one route of rate over another 195, 220(7 Erring road: alone must bear burder of misrouting 137, 199, 286c alone must bear burden of its agent's error 390 808 Index to Conference Eulings. Kuling Error: additional charges through shipper's 348 agent's in punching time linait on ticket; refund of addi- tion charges 390 agents', in selling round-trip ticket resulting in undercharge 151 agent selling ticket prior to effective date of tariff 467 agent selling half rate or lower class tickets, but failing to punch all coupons 487 Canadian rate misquoted resulting in undercharge 262 damage to shipment resulting from, in arrival notice 127 fare paid under misapprehension of privilege offered under through ticket 391 in billing prepaid shipments delivering carrier must collect lawful charges 156 in destination, by shipper; reconsigning orders 237 in destination. Return of astray shipments 217 in loading car; shipment recalled in transit; charges for actual haul 248 in printing tariff, special reparation based on 200a in stating concurrence number 347 of agent in selling colonist ticket, carrier's loss 69, 277, 467 of agent in punching time limit on ticket; refund of ad- ditional fare paid 266 of agent, passenger misrouted or required to pay unnecessary transportation charges 113, 167, 277 of conductor in honoring ticket over wrong line 105 shippers, in routing through certain junction in conflict with rate 243 shippers, in marking L. C. L. shipments 433 yardmen erroneously placed loaded instead of empty car . . 240 Estimated weights per package, tariff should define size of package 280 Examiners, credentials must be honored by carriers without spe- cial letters 260 Excess baggage c harges 326 Exchange: bills of lading at intermediate points showing difterent con- signor, consignee, or destination 415 bills of lading should show origin and route 227 company material returned for, or repair 22 intrastate mileage books in, for advertising 315 of franks and passes, wireless companies 410 of passes. See Passes. of services under contracts between railroads and telegraph, telephone, or cable companies 219, 305, 491 ticket to one point for ticket to farther distant point 303 Excursion and excursion fares: carrier may employ ticket solicitors or promoters 221c Index to Conference Rulings. 809 Excursion and EXtuRSioN fares — Continued. Ruliii;-; carrier may not give free, for commercial association .... 272 defined 304c exception as to tariffs in section 22 not applicable to 208e fourth section applies to 304a privilege of remaining in sleeping cars at stopover point of destination 51 rate must be same for all schools and societies 71 Excursion tickets. See Tickets. Ex-EMPLOYEES : carriers placed in receivership, no passes 436 deceased, no free transportation of remains 2S5 families of, passes 158 free transportation of household goods, none 109, 255 passes to, traveling to enter service of common carrier 102 Exhibitions: car, contents, and necessary agents for state 477 free transportation of ores to 176 reduced rates to, without tariffs 208e Expense: monthly report of carriers 30 of collecting undercharges borne by carrier at fault 16 of fitting cars for shipments, no allowance unless in tariffs 19, 78, 132, 267, 292 Explosives : regulations concerning, apply to company material 388 tariffs and regulations for transportation of 106 Export bills of lading, rules and regulations governing 378 Export business, defined 353 Export rate: inland proportional, subject to fourth section 299 shipment to Colon, Panama 359 tariffs shall specify the countries to which, is applicable .... 468 Express company: brokerage charge for clearing goods through customs 300 destruction of records of, retired 440 express matter carried by traction company (jurisdiction) 368 not entitled to benefit of rail carrier's division 372 overvaluation (dog) 188 passes to oflTicers, agents, and their employees 157 property of employees may not be given free transportation by 513 railroads carrying interstate traffic for express companies subject to act 197 refund of prepaid charges on undelivered shipment 367 valuation and liability on shipments of bonds 58 Extension of through ticket by one carrier 43 Fabrication in transit. See Transit privileges. False billing, undervaluation of shipments by consignor 58, 295 810 Index to Conference Rulings. Ruling Family: bureaus of carriers 448 definition 95c deceased employee of nonoperating road 352 employee killed or dying in service, passes to . . . .103, 173, 193, 476 ex-employees traveling to enter service of carrier 158 express companies, families of officers and agents, passes to. 157 Government officer's, no passes 2QSd local attorney's or surgeon's, no passes 95a of furloughed employees entering military or naval service of United States 511 of secretaries of railroad Y. M. C. A.'s (no passes) 485 of employee on leave to fill public office, no pass 308 postal clerks (passes) 429 servants are included 92, 95c trained nurse in, of employee 417 wife of employee, free transportation of deceased 174 Fares : caretakers unable to secure return load must collect .... 1 caretakers traveling with motor car must pay 334 child under 5 traveled on full, ticket 492 combination of joint fare to common points and local fare beyond 215 combination of party rate and single fares as device to evade through fares 268 excursion, subject to fourth section 304a contrasts for division of, must be filed 209 convicts, no reduced 431 diverted traffic 213 excursion, defined 304« excursion, must be same for all schools and societies 71 excursion, including sleeping-car accommodations 51 excursion, subject to fourth section 304« fourth section application when one or more points in for- eign country 318 higher to intermediate point; subsequent reduction; refund 385 journey abandoned short of destination 350 lawfully established rates must be collected 314 of s^tae character are to be compared under section 4 310 orders issued abroad for domestic passenger tickets 465 paid under misapprehension of privilege offered under through ticket 391 passenger, may not be applied to transportation of property 212 passenger traveled second class on first-class ticket 495 private car and party diverted account blockade and full mileage rates charged 138 remain in effect until specifically canceled 104 Index to Conference Eulings. 811 Fares — Continued. Ruling stating fares in multiples of fives, no excuse for violation of section 4 309 suspension of 322 through, may not be higher than combination of intermediate fares 298 transportation of Federal troops under special fares 218 violation of amended fourth section . 293, 406 Federal troops, transportation of, under orders 218 Feeding in transit. See Transit privileges. Ferries. See also car ferries. employees on, application of hours-of-service law 108 municipal, subject to act when engaged in interstate trans- portation 162 Ferry car se^ivicb. without tariif authority unlawful 97 Fictitious weight, payment of charges on, to obtain free icing 152 Filing. See Tariffs; Contracts. Flanges, locomotives equipped with 328 Floods. See Diversion. Floor racks in refrigerator cars furnished by shippers 292 F. O. B. shipments, demurrage on 96 Foreign country. See Adjacetstt foreign country. Foreign lines: not adjacent, officers and employees of (passes) 475 repair of cars on 373 Form of contract, agent working up excursions 221c Forwarders, carriers, agents acting as, for shippers 98, 337, 365 Forwarding company, acting at port for shipper in connection with shipment covered by through bill of lading and ef- fective through rate 401 Four months' clause in uniform bill of lading 510 Fourth section: absorption of switching charges to competitive points only 304rf, 304e applies to rates and fares of all kinds 304' discriminations that have been corrected not to be restored without sanction of Commission 395 future rate; special docket cases 425 higher fare to intermediate point; subsequent reduction; refund 385 inland export and import rates 299a interpreted 293, 299b. 304 not to be disregarded in order that fares may be stated in multiples of five 309 one or more points in foreign country 3.18, 447 only fares of same character are to be compared under . . 304o, 310 rates from branch-line stations not directly intermediate . . 304/ 812 Index to Confehenoe Rulings. Fourth Sectiox — Continued. Ruling rates published subsequent to February 17, 1911, in violation of 293 through fares may not be higher than combination 29& transshipment rates 304 Franks, issuance of, by telegraph and telephone companies . .21'9&, 305d Franks and passes, exchange of wireless companies 410 Free icing upon payment of fictitious weight 152 Free storage in transit. See Storage in transit. Free time. 8ee Demurrage. Free transmission of messages by telephone and telegraph com- panies 305(2 Free transportation: body of employee killed or died in service 18, 193 body of ex-employee 285 body of deceased wife of employee 174 Free transportation of persons. See Passes. Free transportation of property: by carriers for one another 225 caretakers of shipments for Government, for charity or ex- positions 150 college, coal contributed to 398 commissary car operated by carrier unlawful 257 company material by one for another 225 company material for repair of car 333 company material for repair of cars on foreign line 373 company material or trucks destroyed on foreign line to road owning 224 company material, returning to manufacturers for repairs . . 22 contractors, material for 208(; county authorities, under section 22, lawful 452 employees may not be granted 513 exchange by telegraph and railroad companies 364 exchange of services under contracts between railroads and telegraph, telephone, or cable companies 219, 305. 491 exhibit. State, car contents and necessary agents 477 gasoline motor cars moving under own power 334 Government, under section 22 33, 36, 208c, 244 household effects of employee 208&, 255 household goods of postal clerks 429 household goods for ex-employees 109, 255 household goods of joint employee of express and railroad companies 361 household goods of inspector of American Railway Associa- tion 335 ice plant, free transportation to men and materials 124 money only can be accepted in payment for transportation 207 municipal governments in adjacent foreign countries 118 Index to Conference Rulings. 813 Free transpoktation of puopkkty — Continued. Ruling ores for exhibition purposes 17G public museum of natural history 185 railway Y. M. C. A., library books 330 railroad eating houses 87 Red Cross Society car for instructions in relief of accidents 259 supplies sold to employees of carrier by contractor 413 supplies shipped to employees by carrier's agent 469 telephone and telegraph companies, men and materials for . 95tt, 219, 305, 491 townships under section 22, lawful 452 Freight bill of rail line on import traffic to show details 42S Freight trains, privilege of riding on, can not be limited to one class 45 Fruit. See Caretakers. Fuel, divisions of joint rates on railway, must be iiled 486 I'UEL COAL, division of joint rate on 324 Gasoline motor cars moving under own power 334 Given away, tickets bought at published fare may be 154 Gondola cars, safety appliances 329 Government: Canadian customs and immigration inspectors 345 caretakers, /'necessary agents," accompanying property for, passes 150 deportation of Chinese, fares for 107 municipal, in adjacent foreign country, no free transporta- tion 118 officers and families of, no passes 208fZ property transported for, reduced rates 36, 244 state or territorial, no free transportation of persons for . . 297 transportation for Federal or municipal, at special rates 33, 208e, 244, 297, 452 troops for, transportation under orders 218 Grain: reshipping rate in effect when reshipped, not legally applica- ble 119 reshipping rate from, primary market, superseding locals and proportionals 57 Grain doors, allowance or refunds to shippers for furnishing. . 78, 132, 267 Grazing in transit. See Transit privileges. Gross ton, defined 131 Group rates; maintenance of relation under special reparation orders 200a Half-fare : agent fails to indorse ticket, selling carrier's loss 69, 277 application of section 4 310 child under 12 years, full-fare ticket purchased, no refund.. 163 814 Index to Conference Rulings. Ruling Half rates, return shipments, must move over original outgoing route 42 Handholds, safety appliances 67, 329 Haw^aiiax traffic under steamship proportional tariff 422 Holding companies: Corporation owning a railroad that it has leased to a carrier for use in interstate traffic, is subject to act 375 Hotel accommodations: must be kept separate from transportation fares 28 privilege of occupying cars at stop-over or destination point can not be limited to particular club 51 HOURS-OF-SERVICE LAW: application to street railways 56 employees deadheading, not on duty under 74 ferry employees 108 interpretation 88, 287 train baggagemen subject to 275 trainmen who delivers orders affecting train movements . . 342 House cars, safety appliances 329 Household goods: of employees, free transportation of 208& of ex-employees, no free transportation for 109, 255 of inspector of American Railway Association 335 of joint employee of express and railroad companies 361 Ice plant: contract with carrier, free carriage of men and materials . . 124 Icing : employees of private-car line traveling for purpose of ....479, 484 free, payment of charges on minimum weight to obtain .... 152 iced refrigerator car not used; shipper's refusal to pay ice charges 343 Illness, redemption of unused passenger tickets because of .... 115 Immigrants, Canadian fares, no jurisdiction 24 Immigration agent, p.asses to, if bona fide employees 208a Immigration inspectors, Canadian, passes 345 Imports: advance charges to ocean carriers on 428 advance in rate while shipment on seas Ill brokerage charge by express company for clearing customs. . 300 commissions on, to consignees, not sanctioned 7 customhouse brokerage fees and import duties advanced . . 444 inland proportional rate subject to fourth section 299 moving from port purely local; inland proportional not ap- plicable 170 tariff should state to which countries import rate is appli- cable 468 Industrial road: common carrier having trackage rights over, subjects latter to jurisdiction 490 Index to Conference Rulings. 8l5 Ruling Industry: lease of property to, in consideration of exclusive traffic . . 94 intermediate refusing trackage rights (switching) 424 iNFOKMAi COMPLAINT. See SPECIAL KEPAUATIOX. Information ; disclosing name of consignee 356 Initial carrier, liability for misrouting. See Misrouting. Inland proportional rate. See Proportional rates. Inspection bureau of carriers; pass to employee of 371 Inspectors: American Railway Association, household goods 335 Canadian customs and immigration, on duty (passes) .... 345 post office; use of commissions for transportation, when off duty 377 tie inspector, pass 386, 430 watch and time 478 Instructions. See Routing instructions. Instructors in use of appliances or materials, passes 336, 346 Insurance companies, agents of, not entitled to passes 208a Insurance supervisors carried on pay rolls, devoting only part time but subject to call (passes) 493 Interchange of passes. See Passes. Interest on overcharge claims 489 Intermediate point, rates to. See Long and short haul. Interpretation of valuation clause in uniform bill lading 387 Interstate rates, applicable for rail haul from port of entry on coastwise tralfic 369 Intrastate carrier, when subject to act 197, 368 intrastate carrier handling interstate traffic 197, 3.68 Intrastate commutation ticket, use on interstate journey .... 26 Intrastate mileage book, use on interstate journey 315 Intrastate shipment, misrouted over interstate route 140 Investigation, claims must be investigated by carrier before payment 236, 462 Investigation and suspension. See Suspension of tariffs. Joint age^nt: destruction of records, regulations apply to 271 error in misrouting shipment 253 Joint employee of express and railroad company, free transpor- tation 361 Joint operation of two lines by separate company 229 Joint rates (see also Through rates) : combination of, to common point and local beyond 215 reduced to sum of locals, minimum weight increased 338 water line with rail carrier, subjects tralfic to jurisdiction . . 66 Jurisdiction: bridge companies 381, 399 brokerage charges by express companies on shipments from abroad, no 300 816 Index to Conference Rulings. JrRiSDicTioN — Continued. Ruling Canada, none over fares between points in 24 canal-boat line, when subject to act 241 car ferry company subject to act 374 charges for meals in dining cars 384 claims barred by the statute 10, 220;, 306, 307 claims resulting from misrouting, exclusive 286a commission can not require additional train service 296 common carrier having trackage rights over logging road subjects latter to 490 competency of employees in case of accident 288 corporation owning leased line subject to 375 courts, in misrouting claims that are barred before Commis- sion 286a, b damages for error in transmission of telegraphic message . . 317 damages to perishable shipment resulting from delay 127 demurrage charges on interstate traffic 54, 223 divisions of through rates or fares to or from Mexico .... 269 drayage, loss and damage while in charge of truckman .... 441 drayage to one drayman or one firm 441 Hawaiian traffic under steamship proportional tariff 422 inland proportional, export and import rates 299 intrastate traction company carrying interstate traffic, when subject to act 368, 418 joint rates between water and rail carrier subjects former to 66 misrouting damages. Commission will exercise, to award against guilty carrier 286e misrouting via carrier not subject to 93 motor cars moving under their own power 3.34 municipal belt line subject to act 89 municipal ferries subject to act 1 02 offsetting under or over charges 323 Porto Rican ports and inland points in United States, joint rail and ocean rates between ' 201 port-to-port traffic in connection with inland rail haul 1.55 railroads carrying interstate traffic for express companies subject to act 197, 368 refusal of shipper to pay ice charges ?.43 signals in case of accident 288 telegraph and telephone companies subject to amended act.. 305 telephone companies in Porto Rico, none 420 terminal companies subject to 312 traflJic through the United States from and to an adjacent foreign country, no 505 water lines accepting traffic from rail line on through bill lading 354 wireless messages; ships at sea . : 394 Killed. See Employees. Labor agent may not lawfully receive passes 411 Index to Conference Rulings. 817 Ruling Ladders: Safety appliances 329 Lake-and-kaul route. See Car ferries. Land agents, passes to, if bona fide employees 208a Land company may give away tickets bought at published fare 154 Large car: ordered, small car furnished 274 Lease: by carrier of trackage rights, as device to avoid charges on materials 153 by carrier of trackage rights to baud general traffic 439 elevator leased by carrier at nominal rental 421 of property by carrier to shipper, and purchase of traffic . . 94 of railroad-owned land, by shipper, at nominal rental 325 liEASKD LINES joiutly Operated through separate company; tariff concurrences 229 Legal expense to collect undercharge, valid claim against car- rier at fault 16 Legal rate: lower of two conflicting rates in same tariff 239 lowest combination of published rates in absence or tnrough rate 256 one in effect on date of receipt of property for transportation 172 one in effect over actual route of movement ... .32, 195, 214a, 220^7 reissue of canceled rate 344 liEGAL remedies, Carriers must exhaust, in collection of under- charges 314 loaded, shipment transferred by carrier to two small cars. . 273 transportation stopped short of intended destination 350 Lessee and lessor roads: concurrence by lessor company in rates published by lessee. . 402 corporation owning leased line, subject to act 375 joint operation of combined road under special arrangement 229 lessee not serving public as common carrier, lessor only to file tariffs ISO shipments routed over lessor road, but handled by lessee road ; same delivery 168 Less-than-carload shipments [see also Carload rate), collec- tion by carrier and free switching from industries 97 Liability for misrouting. See Misrouting. Lighting company', no passes to employees testing lights on trains 169 Limitation s : carrier can not waive the statute and revive barred claims . 220; effect of two-year, in the act, upon reparation claims .10, 220/, 307 filing of informal complaints, procedure; statute of 508 jurisdiction of courts in misrouting claims barred before Commission 139, 286a, 6 statute does not run as between carriers 306 818 Index to Conference Rulings. Ruling Limited tickets. See Tickets. Linemen, telegraph and telephone companies, free passes .... 95a, 219 Liquor, refund of prepaid charges on undelivered 367 Live stock (see also Caketakers), rates based on value of, at time and place of shipment 49G Loading in transit; loss of privilege by misrouting 370 LocAx, BILLING AND KEBiLLiNG, to cvade higher through rate 98, 337, 365 Locomotives equipped with snowplows or flangers 328 Long and short haltl (see also Fourth section): absorption of switching charges to competitive points only 3fl4d applies to rates and fares of all kinds 304a future rate; special docket cases 425 higher fare to intermediate point; subsequent reduction; refund 385 inland export and import rates 299 intermediate points under 304e interpreted 293, 299, 304 one or more points in foreign country 318, 447 only fares of same character are to be compared under .... 310 rates from branch line stations not directly intermediate . . 304/ rates in violation of rule of section 4 may not be restored without sanction of Commission 395 rates published subsequent to February 17, 1911, in violation of fourth section 293, 395, 406 rule not to be disregarded in order that fares may be stated in multiples of five 309 transshipment rates 304 violations of amended fourth section 293, 395, 406 Long ton, defined 131 Lost ticket. See Tickets. Lubricating companies, agents of, no passes 208a Lumber, creosoting, transit privilege of eighteen months not excessive 23.2 Machinery, fitting cattle cars for. no refund unless in tariff . . 19 Mailing list for distribution of official circulars and rulings . . 211 Maintenance of rate (see also Orders of Commission): group rates; maintenance under informal orders 200a or relative adjustment; error in printing tariff 200a relation in rates between raw material and manufactured products 200a through rate exceeds combination on important basing point 200a to conform to orders of Commission; to group points or on like commodities 130 under informal reparation orders 14, 200, 425 Marking, 1. c. 1. shipments, error of shippers 433 Material, Company. See Company material. Maximum load, carriers rhay refuse to receive in one car more than prescribed 483 Index to Conference Rulings. 819 Ruling Meals : carrier may publish excursion fare including meals, but must also offer transportation separately 28 charges for, in dining car; no jurisdiction 384 Measure of damages under uniform bill of lading 387 Messages by telephone or telegraph, interstate 305 Messages, payment for telegraph or telephone ..302, 321, 351, 363, 480 Messages received or transmitted for establishment in which telegraph company has office, commissions 407 Mexico (see also Adjacent foreign country): embargoes account of revolution in 437 overcharge on shipment to, refunded 126 publication of divisions of rates to and from 269 JiTileage books ok tickets: application of section 4 310 distances between stations not required to be shown in tar- iffs 202 in part payment of ticket 382 insufficient coupons, passenger may pay for balance of jour- ney at regular per-mile rate under tariff rule 81 not good in new territory unless so provided in tariff .... 178 rates must be published 208e rules governing redemption should be in tariff , 228 state, used on interstate journey 315 use of special circus 503 Mileage tariffs, to show distances between freight stations . . . 202 Milk, caretakers of 21 Milling in transit. See Transit pri\ileges. Minimum weight: class rate and minimum make lower charge than commodity rate with higher minimum, latter applies 84 increased when through rate reduced to sum of locals; basis of reparation 338 joint through rate must be subject to only one 264 larger car furnished than ordered; connecting lines no rules covering 274 payment of, to obtain free icing under tariff 152 shipment transferred by carrier into two cars 273 transfer of shipment in transit to another car 331 two small cars furnished in lieu of larger car ordered .... 339 Ministers, free transportation does not include families of .... 208d Misapprehension. See Error. Misbilling, undervaluation of shipment by consignor 58, 295 Misquotation : of Canadian rates, carrier must collect undercharges 262 of rate, not a basis for reparation 254 Misrouting (see also Diversion) : adjustment of claims for damages resulting from 474 820 Index to Confeeenoe Rulings. MiSBOUTiNG — Continued. Ruling agreement between carriers respecting respon'oibility for misrouting traffic 198 all-rail and lake-and-rail routes available 190, 316, 321 bill of lading specifying route and rate applying over differ- ent route 243, 474c blockade on specified route, diversion order by consignor, car- rier not liable 147 car-ferry routes 316 carrier at fault to bear entire burden 198, 205, 214d, 474a carrier at fault liable for storage and drayage 383 claims that are barred before Commission, jurisdiction of courts 286a, b company material, routing instructions violated 143 connecting carrier accepting shipment at junction without routing instructions 286c demurrage ordinarily not refunded in misrouting cases . . 32, 220e diversion of private car and party account of flood 138 diversion of shipment account blockade, carrier liable for excess charges as misrouting 83 drayage expense resulting from (claims) 474a. 509 error of joint agent of two lines in forwarding from inter- mediate point 253 inconsistent instructions followed; transit privilege lost ... 370 indirect and longer route carrying lower rate but not rea- sonable 91 jurisdiction exclusive in Commission over claims for 286a jurisdiction to award damages versus carrier guilty of .... 286e lawful charge is tariff rate over route moved 214a liability of initial carrier for failure to transmit instructions 137, 199 over line of carrier not subject to the act 93 over line without legal published rate 90, 93 passengers, through errors of agents 113, 167 principles fixing liability and governing claim adjustments 205, 214, 230, 286, 397, 474 refund must be authorized by Commission or court of com- petent jurisdiction 214a refund when agent misroutes 214d reparation on basis of State rate 419 road having trackage rights handles shipment routed over lessor road; same delivery; no misrouting 168 routing of shipments by consignees 502 shipment that could move Intrastate sent over higher in- terstate route 140 transit privilege lost as result of misrouting, erring road liable 230 undercharges, adjustments among carriers 214/, h wrong terminal delivery resulting in drayage expense 234, 283, 509 Index to Conference Rulings. 821 Ruling Money, transportation must be paid for in, not in services or property 207 Monthly basis, attorney employed on, but engaged in other prac- tice, no time passes 412 Monthly reports, time and manner of filing with Commission . 30 Motor cars, gasoline, moving under own power 334 Municipal: belt line, subject to act 89 ferry, subject to act 162 government, in adjacent foreign country, no froo transpor- tation 118 government, transportation for 33, 244 Museum: of natural history, public, free transportation of property of 185 of natural history, public, no passes to employees 245 Navy : free transportation of naval and marine forces under orders 218 free transportation to officers of, unlawful 2Q8d Net ton, defined 131 New lines, Rule 44 of 17-A applies to newly constructed roads.. 4 News companies, employees, other than newsboys, no passes . . 95a. Newspaper employees, transportation of, on special newspaper trains 212 Nominal rental: lease of elevator by carrier at 421 lease of railroad land by shipper at 325 Nonopekating roads: family of deceased employee, pass 352 officers and employees, no passes 3.55 Northbound rate can not be applied southbound 52 Notations on bill of lading, etc., when larger car furnished at carrier's convenience 274 Notice: less than statutory, for tariff of newly constructed lines . . 4 of arrival at named address; failure to give; demurrage .. 3G6 of arrival, damages to perishable shipment resulting from delay in 127 of arrival, demurrage accrues on prohibited "order notify" shipment 261 statutory, expiring on Sunday, tariff legal 47 written, to carrier, constitutes presentation of claim 510 Number, concurrence erroneously stated in tariff 347 Ocean carriers, officers and employees of (passes) 475 Officebs (see also Employees): nonoperating road, no passes 355 of government, no passes to, or families 208rf subsidiary railroad companies, passes to 95a 822 Index to Conference Bui/Ings. Ruling Offset: demurrage under average agreement on state and interstate shipments 506 offsetting of under or over cliarges, no jurisdiction 323 undercliarge, by carrier, against overcharge on another ship- ment 323 Oil companies, agents of, no passes 208a Omnibus companies (see also Transfer companies) : joint rates with railroads 164 no passes to officers and employees of 95a, 216 Operators of gasoline motor car moving under own power .... 334 Order notify. See Shippers order notify. Orders, issued abroad for domestic passenger tickets 465 Orders of Commission: complaints filed by traffic or credit bureaus 246 discrimination will not be caused by reparation orders 220i drayage expense, reimbursement without specific 509 fourth section violations, granting relief 293 rates reduced after formal complaint filed will be main- tained two years 14 relative adjustment of rates, to group points or on like commodities, preserved by carrier in obeying order 130 reparation, precedents for entry of similar orders covering like shipments 220d, a96 special permissive, not required (passenger) 167 special reparation, "fourth section" 425 special reparation orders require maintenance of reduced rate 14, 396 switching absorptions under "fourth section" 304(i Ores, free transportation to and from exhibition 176 Origin, exchange bills of lading should show point of 227 Outbound charges, on returned shipment, may not be refunded by carrier and charged against original consigner 249 Overcharge claims (see also Claims; Special reparation): division of overcharge on misrouting 205 interest on 489 offsetting of over or under charges, no jurisdiction 323 on one shipment set off by carrier against undercharge on another 323 shipment to adjacent foreign country, Mexico, refunded .... 126 Package, estimated weights on, tariffs should define size 280 Panama: Canal act (sec. 5 of the act as amended) interpreted 461 coastwise traffic over Panama Railroad 369 Hawaiian traffic under steamship proportional tariff 422 shipments to Colon 359 Parmelee case, reference to decision 51 Parking cabs (see also Sleeping cars) 51 Index to Conference Rulings. 823 Ruling Part payment, mileage for ticket 382 Party rate tickets: application of section 4 310 may not be used with single fares to defeat through fares . . 2G8 Passenger fare. (See Fares.) Passengers (see also Tickets): child under 5 traveled on full fare ticket 492 Commission can not require additional train service 296 deprived of return portions of ticket lost by carriers 247 deprived of return portions of ticket through error of agent 167 discontinuing journey short of intended destination, legal rate 350 high water causing, to abandon trip and purchase ticket back to starting point 438 injured in wreck, refund of resulting storage charges on trunk 61 misrouted by carrier's agents, or to put unnecessary transpor- tation charges 113, 167 money only can be accepted in payment for transportation 207 private car and party diverted account blockade and full mileage rates charged 138 privilege of riding on freight trains can not be limited to one class 45 reaching last carrier after expiration of time limit, must pay local fare 44 reparation not ordinarily allowed by Commission informally where fare has been reduced 46 returning to starting point from intermediate stop-point . . 265 subpoenaed as witness and delayed at stop-over point beyond ticket limit 60 traveling second class on first-class ticket 495 use of special circus mileage books 503 Passes: American Association of Railroad Superintendents, inspec- tors of 371 application for, must show sex of children 290 attorney employed on monthly basis but has other practice 412 attorney, local, not devoting substantially all time 426 attorney, local, not regularly employed, none to family 95a automobile lines, offices and employees, none 95^; baggage companies, except baggage agents, none 95a, 216 body of deceased wife of employee to place of interment . . 174 body of employee killed or died in service 18, 173, 193 body of ex-employee, no free transportation 285 bridge company, nonoperating, no passes to employees .... 263 broker, custom, employed on commission basis 454 Canadian customs and immigration inspectors 345 Canadian Government superintendent, mail service 459 824 Index to Conference Eulings. Passes — Continued. Ruling caretakers accompanying fruit by express, transportation in passenger cars 179 caretakers accompanying shipments for Government, or to expositions, or for cliarity 150 caretakers accompanying shipments where carrier furnishes refrigeration 171 caretakers going to get fruit but returning without load . . 1 caretakers must return to point of origin over original route 189 caretakers of gasoline motor car moving under own power 334 caretakers of bees in hives 112 caretakers of milk 21 caretakers, only trip or round-trip, not annual or time .... 37 car-lighting company, no passes to inspectors 169 carriers not subject to act, no passes for employees 95a. g carriers, other (rail or water) filing tariffs subject to act so far as issuance of, to its officers or employees 95(7 children, sex of, must be shown on application for 290 Commission can not undertake to determine who are eligible for 95i commissioners of states, on interstate journeys 35 contract between carrier and ice company for free trans- portation 124 contractor, employees of, for work on line 208c cooks, porters, and waiters on private cars 301 correspondence schools, agents of, not entitled to 208rt deportation of Chinese by Government 107 destruction of used passes 95fc employees and families of, on leave to engage in other busi- ness 308 employees devoting part time, no pass 446 employees, furloughed, entering military or naval service of United States 511 employees of carriers not devoting substantially all time . . 208a employees of common carriers filing tariffs 95g employees of nonoperating bridge companies, no passes .... 263 employees of omnibus and baggage express companies .... 216 employees of telegraph and telephone companies 219 employees of water lines subject to act; interchange rail passes for 196 employees of inspection and weighing bureau of carrier . . 371 employees of restaurant at union station 340 employees on leave of absence or furlough 55 employees on private cars 301 exchange by telegraph and railroad companies 219, 305, 491 excursion for commercial club at expense of carrier 272 ex-employees, traveling to enter service of common carrier . . 102 express companies, officers, employees, and families 157 Index to Conference Rulings. 825 Passes — Continued. Ruling "family," definition 95c families of deceased or killed employees 103, 173, 193, 476 families of deceased employees of nonoperating road 352 families of employees of bureaus of carriers 448 families of employees of express companies 157 families of ex-employees 158 families of furloughed employees entering military or naval service of the United States 511 families of local attorneys and surgeons, no passes 95a families of postal clerks 429 families of secretaries of railroad Y. M. C. A.'s 485 foreign countries adjacent, oflBcials of railroads in 434 foreign countries not adjacent, officials and employees of rail- roads in 475 form of 95 Government (U. S., State, or municipal) under section 22.. 208e Government officers under section 22 208d inspectors, watch and time 478 instructors in use of appliances or materials 336, 346 insurance supervisors carried on pay rolls, devoting only part time but subject to call 493 insurance companies, agents of, not entitled to 95a. 208a irregular in form, only 95; labor agent may not lawfully receive 411 land and immigration agents, not entitled to 208a linemen of telephone and telegraph companies 95o, 219 ministers, does not include family 208d museum, public, no passes to scientists or employees of .... 245 news companies, employees, other than newsboys, none to . . 95a newspaper employees on special newspaper trains 212 nonoperating road, officers and employees of 95a, 355 ocean common carriers, officers and employees of 475 oil and lubricating companies, agents of, not entitled to .... 208a persons traveling over carrier's line on its business 2086 preservation of used or canceled passes 95fc private cars; cooks, porters, and waiters on 301 private car lines, employees of 479, 484 prosecution for unlawful issuance or use of 95a rail or water carriers filing tariffs, employees entitled to . . 95g Railway-Mail Service employees, passes or reduced rates to 95/ receiver, officers and directors not employed by 436 receiver, officers and employees of, entitled to 165 Red Cross Society's car and employees, for instruction, relief of accidents 259 restaurant, employees of railway, not also serving general public 87 servants with family (reverse Rule 63) 92, 95e 826 Index to Conference Rulings. Passes — Continued. Ruling sex of children must be shown on application for 290 shippers accompanying shipments where carrier furnished refrigeration 171 stage line not subject to act, none to employees 95a stage line not subject to act, none to employees 95o, g steamship company, if not subject to act, employees not en- titled 95a subsidiary line, no passes to employees except on carrier's business 95o surgeons not devoting substantially all time 426 surgeons, not regularly employed, none to family 95a surgeons, veterinary, performing bona fide service 449 tailors making uniforms for railway employees, under con- tract 134 tap lines, officers and employees of 466 telegraph and telephone companies 305(1 telegraph and telephone companies, linemen 95a, 219 tie inspector 386, 430 to persons traveling at expense of State or Territorial gov- ernments 297 train auditors employed by audit company 400 trained nurse in family of employee 417 transfer companies, employees, none to 95a, 216 traveling secretaries of Y. W. C. A., none to 278 use of commissions by post-office inspectors off duty 377 wagon lines, no passes ^5g water lines not subject to act 95a. g water lines subject to act, interchange of, with rail lines for officers, agents, and employees 196 water lines subject to act 95^^ wireless companies, exchange of 410 witnesses not entitled when carrier has no legal interest in proceeding 3.19 witnesses when carrier has legal interest 414 Payment: absorbed switching charges, by consignee disapproved .... 64 advance charges by rail lines to ocean carriers on imports . . 428 compensation must not be greater, less, or diiferent from that named in tariffs 221a demurrage accruing while agent awaits authority to accept check 39 for transportation to be made only in money, not services.. 207 telegram relating to traffic 327, 351, 363 Perishable freight (see also Caretakers) : delayed notice of arrival, damages 127 refrigeration service by carrier included in rate; no passes to caretakers 171 Index to Conference Rulings. 827 Ruling Philippines, tariffs containing export rates 468 Physical rkcorus, such as maps, profiles, plans, etc 435 Picnics, fares for societies and schools, must be nondiscrimi- natory 71 Pile dkiveb. See De:erick. Placing car. See Switching. Porters may be carried free on private cars 301 PoRTO Rico: joint rates from ports in, to inland rail points in the United States 201 tariffs containing export rates 468 PORT-TO-PORT traffic: in connection with inland-rail haul, subject to act 155, 201 in connection with rail-line haul under through bill of lad- ing 354 moving on through bill lading to inland rail point and pub- lished through rate effective 401 via Panama Railroad 369 Postal cards, may be transported for Government at special rates 36, 244 Postal clerks' families (free or reduced rates) 429 Posting name of resident agent at blind sidings 289 Posting tariffs: by parent line for subsidiary line 86 canceled tariffs need not be kept posted 499 Post-office inspectors' use of commissions for transportation when off duty 377 Practice rules. See current Rules of practice. Precedents; reparation orders; reparation on like shipments . 49, 200c, 200d Preferential rates: division of joint rate on fuel coal 324 may not be given to carriers 225 Prepaid shipment: undelivered because of prohibition law 367 underbilled, delivering line must collect lawful charges . . 156 Prepayment, special understanding with shipper as to prepay- ment on shipments to nonagency stations 20 Presentation, written notice to carrier constitutes, of claim .... 510 Preservation of records, regulations apply also to joint agencies 271 Preservation op tickets, canceled, by carrier 252 Primary market, reshipping rates on grain from 57 Private car: defined in connection with demurrage 79, 122, 128, 222 demurrage on, out of service on carrier's storage track .... 123 diverted account blockades, occupants entitled to short-line mileage rate 138 free transportation for cooks, porters, and waiters on 301 8^S Index to Confeeence Rulings. Ruling Pbivate cab lines, employees of (passes) 479, 484 Feivate sidetrack. See Sidetrack. Privileges (see also Reconsignment privilege; Storage in tran- sit; Transit privileges), fare paid under misapprehension of privilege offered under through ticket 391 Proceeds of sale of shipment to pay freight 41, 145 Process, legal, passenger obeying, delayed at stop-over point beyond limit 60 Prohibition law; refund of prepaid charges on undelivered liquor 367 Proper cars not furnished by carrier 120 Proportional rates: inland, not applicable on import traffic handled locally .... 170 inland, export and import, subject to fourth section 299 long-and-shorr-haul provision, application to 304 defined 304& Prosecution : carriers and persons violating pass regulations 95 of carriers participating in transportation without published rates 90, 184, 194 Public office; no pass to railroad employees on leave to hold 308 Pullman cars. See Sleeping cars. Quarry, lease by carrier of trackage rights to; device to avoid charges 153 Quotation: erroneous, Canadian rates, carrier must collect undercharge 262 erroneous, of rates, not a basis for reparation 254 from Commission's correspondence, must be made in full . . 29 Rail and lake 190, 214, 316 Rail-and-water routes, defined 316 Railroad. See Carriers. Railroad consignee: division of joint rate on fuel coal 324 material for repair of car, free transportation 333 not to be given preferential rates 225 Railroad eating houses for employees and passengers, free trans- portation 87, 340 Railway Mail Service, employees entitled to passes when on duty 95^ Railway Y. M. C. A.: ffee transportation of library books .■ 33» families of secretaries of (no passes) 485 Rates (see also Through rates; also Maintenance of rates) : advance cars under special circus 503 all-rail and rail-and-water, available, duty of agent ..190, 316, 321 applicable on shipment, one in effect on date of receipt for transportation 172 applying in one direction, not in reverse direction unless so published 52 Index to Conference Eulings. 829" Rates — Continued. Ruling applying only on coal in box cars; carrier furnishing hop- per cars liable for excess charges 120 applying to shipments stopped in transit short of destination 350 based on valuation of merchandise 295 based on value of property as declared at time and place of shipment 496 Canadian rate, not filed with Interstate Commerce Commis- ■ sion, can not be applied on through movement to Canada. . 256 Canadian, misquoted resulting in undercharge 262 carload, and minimum weight to obtain free icing 152 carload, not applicable where shipment taken in separate 1. c. 1. lots 175 carrier without published rates participating in misrouted movement 90, 93 carrier without published rates participating in interstate transportation; subject to prosecution 90, 184, 194 cars, motor moving under own power 334 cars, destroyed on foreign lines, transportation of trucks . . . 224 coastwise traffic over Panama Railroad 369 Colon, Panama, entitled to export 359 combination, lowest, of rates filed with commission must be applied 256 combination may not be applied until joint through, can- celed 423 combination of locals inapplicable when covered by through rate and through bill of lading 401 combination of, on one junction applied on shipment moving via another 195 combination, joint rate to common points and local rate or fare beyond 215 commodity rate supersedes class rate although carrying high- er minimum 84 commutation, application of fourth section to 304a concurrence by lessor company in, published by lessee 402 conflicting, due to failure to cancel 50 conflicting, named in same tariff, lowest applies 239 conflicting with routing 24.3., 370, 474(? contracts for divisions of, must be filed 209 demurrage does not accrue where carrier demands more than legal rate 32 disputed, no demurrage accrues if carrier wrong 32, 220/ disputed, shipper should pay published, pending dispute ..32, 220e distinction between traffic handled by steam and electricity, unlawful 2 diverted traffic 213 divisions of joint, on railway fuel must be filed 486 excursion, application of fourth section to 304'ueksta>di>gs, between carrier and snipper, not in tariffs 20, 235 S."TJB TRACK. See Sidetrack. Stage lines, no passes to employees 95a State, See Intrastate. State commissions: no control over demurrage on interstate shipments 54, 223?; passes not to be used for interstate journeys 35 State exhibit, car, contents, and necessary agents 477 Statement of rates 457 Statute of limitations. See Limitations. Statutory notice. See Notice. Steam: coal for, may not be given special rate 34 distinction in rates on traffic handled by, and electricity, unlawful 2 Steamship companies. See Water lines. Steivedores acting as forwarding agents for shippers 337 Stock-holding railroad, no free carriage between owner and owned 225 Stop-over (see also Tickets), exceeded by passenger because subpoenaed as witness 60 refund of unused portion of passenger ticket 380 Stoppage in transit. See Transit privileges. Stopping shipments en route for part loading or unloading. . 233, 370 Index to Confeeence Rulings. 839 Ruling Storage: off track, when tariff is effective 473 proceeds of sale insufficient to cover cliarges, no waiver .... 14.5 track, when tariff is effective 47i> Stouace chakges: accruing because of weather conditions 404 accruing during reconstruction of a leased warehouse 403 carrier failing to forward notice to consignee, liable for . . 36G misrouting carrier, liable for 388 on baggage refunded to passenger injured in wrecic 61 Storage in transit {see also Transit PRiviLEtiES), free, at one point, for one industry, disapproval 5 when tariff effective 473 Storage track, private car out of service on carrier's demurrage 123 Street railways: intrastate, carrying interstate express matter 368 subject to hours-of-service law 56. 287 Strikes, (Jemurrage occasioned by strikes, no refund S Sl'BSIDIARY line: passes to employees only when traveling on carrier's busi- ness 95a posting of tariffs for, by parent line 86 Sunday, statutory notice of tariff expires on, lawful 47 Superintendent Canadian mail service, no pass 459 Supplements to tariffs, canceling rates, must be specific and complete 70, 101 Supplies: (coal) contributed to college 398 furnished railroad employees through commissary car 257 shipped to employees by carrier's agent 469 sold to employees of carrier by contractor 413 Supreme Court, reference to decision of in The Tap Line Case. . 466 Surety companies, passes to employees, none 95a Surgeons, local, not regularly employed, no passes to families . . 95a not devoting substantially all time to carrier (passes) ... 426 veterinary, performing bona fide service 449 Suspension of tariffs: discretionary with Commission whether to suspend 322 requests for suspension; what must be shown 322 Swinging side doors, safety appliances 329 Switching and switching charges (see also Terminal deliv- ery) : absorption of, to competitive points only 304d absorption rule published, carrier must pay terminal line . . 64 absorption of, claim not invalidated by subsequent cancella- tion of tariff rule 136 additional, expense resulting from misrouting 474a carload transferred into two cars in transit 357 S40 Index to Conference Rulings. SwiTCHiXG AND SWITCHING CHARGES — Continued. Ruling charge where two cars furnished in lieu of car ordered .... 339 demurrage accrues, belt line will not switch uiitil freight charges paid 144 erroneous placing of cars for loading; analogous to astray movement 240 intermediate industry, absorption of, disapproved 424 less-than-carload shipments, free, from industries 97 Switching line: concurrences 341 municipal, subject to act 89 Switch track. See Sidetrack. Systems, railroad: free transportation by one carrier member for another .... 225 tariffs should show both corporate and trade names 450 Tailor making uniforms for railway employees, under contract ( passes ) 134 Tank cars. See Cars; Private Cars. Tap lines, officers and employees of (passes) .' 466 Tariffs: advance charges to ocean carriers on imports 428 advances of customhouse fees and import duties must be pro- vided in 444 advances to boats that are not common carriers, must file.. 62 allowances for fitting cars for shipments must be published 19, 78, 132, 292 allowances for grain doors 78, 132, 267 allowances must be published 360 astray shipments may be moved without published, etc 217 baggage inadequately routed, rule as to forwarding 326 baggage, sample, defined in 445 baggage transported at excess baggage rates, sale of 455 bridge companies 381, 399 cancellation of transit rules does not withdraw right from shipments moving thereunder until expiration of transit limit 80 cancellations in, must be complete and specific 101 canceled, accrued claim for absorption switching not invalir dated 136 canceled, need not be kept posted 499 caretakers of bees in hives, may provide 112 car ferry, when subject to the act 374 carrier filing another's tariff as its own, without securing concurrences 13 carriers filing, recognized as subject to act 95(7 carrier, participating in transportation without filing prose- cution 184, 194 carrier participating in misrouted movement without pub- Index to Conference Rulings. 841 Tariffs — Continued. Ruling lished rates 90, 9'.i change in free time allowance (transit) 471 charity, transportation for, without tariffs 208e chartering locomotive and train under published 82 Chinese deported, care and subsistence in transit need not be published 107 classification does not govern tariff unless specified 141 commodity rate per car named in, and also class rate .... 483 concurred in, do not authorize carrier to use local rates of publishing road 281 concurrence by lessor in rates published by lessee 402 concurrences of switching roads 341 confiicts in 50, 70, 104, 239 demurrage, bunching in transit rule in 142 demurrage charges on interstate shipments must be pub- lished 223a demurrage collected under tariff not on file, refund denied.. 194 demurrage published in separate tariff without cross ref- erence 276 demurrage, rules waiving must be aflfirmative and specific 135, 223 destruction of canceled tariffs at stations 252 distance, must show distances between freight stations .... 202 distinction between traffic handled by steam and electricity, unlawful 2 distinguishing between coal for steam and domestic purposes, unlawful 34 drayage charges when absorbed or when added to rate 441 effective date, issued before August 28, 1906, but not filed until later 100 effective date, none, illegal (see Rule 73) 12 effective date, omitted in carrier's first tariff, effective im- mediately 73 error in stating concurrence number 347 estimated weights ^pei; package should be defined in 280 exceptions in section 22 not applicable to mileage, excursion or commutation tickets 20Sc excursion fares in, containing different fares to different so- cieties, unlawful 71 explosives, notice of regulations 106, 388 export bills of lading, rules and regulations must be pub- lished 378 express companies, tariffs providing passes for caretakers of fruit, cross reference to railroad tariffs 170 feeding and grazing in transit, feed and service charges . . 442 free storage in transit 5 Government rates need not be published 33, 36, 208e. 244 842" Index to Conference Rulings. Tariffs — Continued. Ruling Hawaiian traffic under steamship proportional 422 intrastate carrier when subject to act 368, 418 issuing carrier's responsibility under joint rate published without proper concurrence 501 lessee road not serving public as carrier, need not file tariffs 180 lessee road operating combined lines under special arrange- ment, filing rates 229 meals included in rate, transportation charge must also be shown separately 28 mileage books, redemption rules in tariffs 228 minimum carload rate under joint through 264 municipal ferry participating in through traffic 162 newly constructed lines, publication on short notice 4 order by Commission requiring rate reduction; carrier may reduce related rates on short notice 130 partial unloading at intermediate point 23;i performance of transportation service without filing tariffs 90, 93, 184, 194 petitions of shippers and carriers with respect to agreed or released rates 504 posting name of resident agent at blind sidings 289 private cars. Commission's definition to be incorporated in tariffs 128 provisions govern even where in conflict with conditions in • tickets 73 railroad system must show both corporate title and trade name 450 rates based on value of property as declared at tho time and place of shipment 496 reconsignment rules and conditions should be published .... 72b refused shipments, conditions governing reconsignment must be in 114 refused shipments, unlawful tariff rule 145 reissue of canceled rates 344 released rates under Cummins amendment as further amended 500 remain in effect until specifically canceled or superseded . . 50, 70, 104, 136, 239 retroactive effect not given to reconsignment or transit rules 6, 77, 166 return or disposition of shipments account revolution in ]\Iexico 437 routing, rule reserving right of routing or diverting .... 146, 183 rule applying reshipping rate in effect date grain leaves tran- sit point 119 shall specify to what countries export and import rates are applicable 468 Index to Conference Rulings. 843 Tariffs — Continued. Ruling side trips limited to holders of throuj^h tickets must be in tariff 177 special understandings, not in 20 special rates on shipments in foreign cars 470 statutory notice expiring on Sunday, legal 47 subsidiary line need not post, if posted by parent line 86 supplements canceling rates must be specific 101 suspension of 322 telegrams, payment for, rule in 363 terminal charges to and from Canada must be published . . 191 transit privilege expired while sheep grazed in transit .... 53 transit privilege time limit 204, 232 trap-car service must be under tariff authority 97 unlawful per se, can not be used 145 validation rule with respect to refunds extra fare 125 violation of amended fourth section 293 Tarip^f circular No. 14-A: Rule 8, cited 50 Rule 44, modified 4 TARiiiT circular No. 15-A: Rule 4, amended 106 Rule 7, cited 84 Rule 8, cited (same as Rule 8 of 14-A) 50, 101 Rule 59, same as 209 Rule 60, same as 213 Rule 63, same as 208 95, 208 Rule 64, same as 219 Rule 65, same as 212 Rule 66, same as 216 Rule 67, same as 207 Rule 70, same as 214; cited 113, 14?>, 167, 190, 198, 205, 214 Rule 72, same as 216 Rule 74, same as 217, cited 31, 217 Rule 75, same as 218 Rule 78, same as Rule 67 of 17-A; modified 114 Rule 79, same as 210 Rule 80, same as 211 Rule 81, same as 220 Supplement No. 2 135 Tariff circulars 17-A or 18-A: Rule 4 being amended Rule 4 of Circular 15-A 106 Rule 5, modified and cited 195, 256 Rule 7, same as Rule 7, Circular 15-A, cited 84 Rule 8, same as Rule 8, Circular 14-A, cited 50, 100, 101 Rule 55, cited 215 Rule 56, cited 220 Rule 57, as modified 4 844 Index to Conference Rulings. Tariffs circulars 17-A or 18-A — Continued. Ruling Rule 61, overruled 244 Rule 65, cited 106 Rule 66, reaffirmed or cited 274, 339 Rule 67, being Rule 78, Circular 15-A, as amended, cited .... 114 Rule 72, interpreted 269 Rule 74, published as Conference Ruling 72 Rule 75, being amended rule in supplement No. 2 to Circular 15-A 135, 223 Teleoraph and telephone companies: application of amended act to 305 application of hours-of-service law to operators 88, 287 commissions to persons, firms, company where, office located, none 407 employees of 95a, 219 error in transmission of message, no damages 317 exchange of services with railroads 219, 305, 491 paragraph 5, section 15, of amended act not applicable to (routing) 291 telephone companies in Porto Rico, jurisdiction 420 transportation of men and materials for 95a, 219 wireless messages; ships at sea 394 Telegrams : commissions on 407 to or from shippers; payment of charges on .302, 327, 351, 3.63, 480 Telegrams and cablegrams, destruction of 460 Telephone messages relating to shipments 480 Terminal charges to or from Canada must be published 191 Terminal companies: are subject to the act 312 belt line owned by municipality 89 concurrences of 341 employees of restaurant of, no passes 340 refused to accept car until charges paid (demurrage) .... 144 Terminal delivery {see also Delivery), shipper's instructions must be followed 321 Territory. See Porto Rico. Theft; ticket stolen from initial carrier and honored by con- nections 494 Through rates or fares: canceled, while shipment on sea Ill coastwise traffic moving on through bill of lading to inland rail-line point, through rate applies 401 combination of locals; making less; special reparation .. 220g combination of rate to intermediate point plus distance rate beyond, applicable 443 combination rate may not be applied until joint canceled . . 423 company material moving under joint 225, 372 Index to Conference Rulings. 845 Through RATES ok fakes— Continued. Ruling contracts for division of, must be filed 209 device to evade, by local billing and rebilling 98, 337, 365 device to evade, by sale of local tickets 24 device to evade, by sale of party rate and local single tickets 268 division of, to or from Mexico 269 division of, on company material 324 in excess of combination on important basing point; main- tenance 200a issuing carrier's responsibility under joint, published with- out proper concurrence 501 joint rates reduced to sum of locals; minimum weight in- creased 338 may not be higher than combination of intermediate fares.. 298 minimum weight governing joint through rate 264 order requiring rate reduction; carrier may reduce related rates on short notice 130 petitions of shippers and carriers with respect to agreed or released rates 504 rule applicable in absence of, between points in the United States and adjacent foreign countries 488 through billing over rail-and-water route in absence of joint rate 354 to or from Porto Rican ports to or from inland points in the United States, legal 201 transfer of shipment to another car in transit 331 Through route: advancing charges to boats that are not common carriers . . 62 canal boat line under arrangement with rail line 241 coastwise traffic moving on through bill of lading to inland rail point 401 duty of carriers to furnish through cars or transfer free ..59, 274 port-to-port and inland rail haul 155 steamboat line and rail line agreed upon joint rates 66 through billing over rail-and-water route in absence of joint rate 354 Through traffic: from and to an adjacent foreign country through the United States, no jurisdiction 505 Tickets: agent selling half rate or lower class, but failing to punch all coupons 487 agent's error in fixing time limit 390 agent's error in selling round-trip (undercharge) 151 application of section 4 310 Canadian immigration, no jurisdiction 24 charterer of train may sell, at special rate 82 child under 5 years traveled on full fare 492 846 Index to Conference Rulings, TiCKErrs— Continued. Ruling child under 12 years, full-fare ticket purchased, no refund . . 163 collectors on trains, auditors (passes) 400 colonist, agent fails to indorse, selling carrier's loss 69, 277 commutation State may be used on interstate journey .... 26 commutation to school children nondiscriminatory 99 conditions on ticket conflicting with tariff provisions latter govern 75 connecting line entitled to compensation for class of ticket honored 69, 277 death of round-trip ticket holder before return trip made . . 393 discontinuance of journey short of intended destination . . 350 distance tariffs with respect to mileage 202 entertainment tickets may be sold by carrier as matter of convenience 221a exchange of ticket to one point for ticket to farther dis- tant point 303 excursion, issued on date not authorized by tariff 467 excursion, redemption of, on basis of intermediate excursion fare 265, 303 extension of time by one carrier not binding on others (re- verses Rule 23) 43 fare paid under misapprehension of privilege offered under through ticket 391 high water causing passenger to abandon trip and purchase local, back to starting point 438 honored over wrong line through error of conductor 105 loss of return portion of, by agent of carrier 458 lost, refund should be withheld reasonable time to guard against improper redemption 238 lost, refund of additional fare paid 238 lost by carrier, must pay connections for substituted ticket 247 meals, etc., may be included, but transportation must be of- fered separately 28 mileage books (intrastate) issued in exchange for advertis- ing not good on interstate journey 465 mileage book presented in part payment 382 mileage not good in new territory unless tariff so provides . . 178 mileage, insufficient coupons, passenger may pay for balance of trip at regular rate per mile 81 orders issued abroad for domestic passenger 465 party rate, may not be used with single fares to defeat through fares 268 passenger traveled second class on first-class 495 passenger obeying legal process exceeds stop-over 60 passenger reaching last carrier after expiration of, must pay local fare 44 redemption of mileage books 228 Index to Conference Kulings. 847 TicKBTTS — Continued. Ruling reparation on informal pleadings inapplicable lo passenger traffic 4fi sale of, after departure of last train on final selling date . . 182 side trips limited to holders of through tickets must be authorized in through tariffs 177 sold at lawful fare may be given away by purchaser 154 stolen from initial carrier and honored by connections . . . 494 train delays cause passenger to miss connections, invalidat- ing ticket 27 transfer of passengers by bus at destination may be in- cluded, but transportation must be offered separately .... 164 unused in part because of washout; refund of additional fare paid IIG unused portion, invalidated by agent's error; refund of ad- ditional fare 266, 390 unused portions, value refunded by carrier 76, 115, 238, 380 unused portion of excursion ticket; refund on basis of an- other excursion rate from intermediate stop-over point .265, 303 validation of, failure of passenger to secure, tariff rule may permit refund 125 validation of 75, 167 Tie ixspectob; pass 386, 430 Time limit ox tickets. Sec TickI'Tis. Ton, gross, long, and net, defined 131 Townships, transportation for 452 Trackage rights: common carrier having, over logging road subjects latter to jurisdiction 490 intermediate industry refusing (switching) 421 lease by carrier of, over another line to haul general traffic 439 lease by one carrier to another, device to avoid charges . . 153 shipments routed over lessor road but handled by lessee road; same delivery; no misrouting 168 Track : private side, defined 121 repayment by carrier on account of switch 110 switch or industrial may not be built without adequate com- pensation 512 Traction company, located wholly within a state, when subject to act 368, 418 Trade name: application of rate to commodity sold under 279 of carriers, corporate title must also be shown in tariffs and concurrences 450 Traffic, purchase of an industry's, by carrier, through lease of property 94 848 Index to Conference Rulings. Ruling Traffic bureau, filing reparation complaints; orders in lavor of shipper 246 Train: chartered at published rate per car or per train, charterer sells tickets at special fare 82 delayed, causing passenger to miss connections, invalidating ticket 27 freight, privilege of riding on, can not be limited to one class 45 service. Commission can not require additional 296 Train auditors, passes 400 Train employees, application of hours of service law to 88, 275, 287, 342 Trained nurse in family of employee (passes) 417 Transfer : carriers in through route must transfer free if through cars not furnished 59 of shipment from one to two cars 273 of shipment in transit 273, 274, 331, 339, 357 Transfer company, carrier may make exclusive arrangement with, but charges must be published separately 164 passes, none to employees 95a, 216 Transit privileges: additional charges resulting from shipper's error 348 change in free time allowance at reconsigning point 471 charges where two small cars are furnished in lieu of car ordered 333 disclosing name of consignee 356 eighteen months for creosoting of lumber, not excessive . . . 232 exchange bills of lading at intermediate points under au- thorized 415 fabrication of structural steel, shipper's error 348 feeding in transit, and sale of feed and services 442 if not availed of within time limited in tariffs, can not be re- vived or renewed 53 inconsistent instructions followed resulting in loss of 370 loss through misrouting by intermediate line 230 partial unloading at intermediate point 233 rates applicable when shipments stopped short of intended destination 350 rates applying out of transit points as of date grain left point of origin 119 reconsignment privileges and rules 72 refused shipments, reconsignment of 114 retroactive effect not given to 6, 77, 166 sheep, movement of, prevented by snow, lose transit rates . . 53 shipments held at, point beyond, period because of carrier's inability to supply cars 507 should not extend beyond one year 204 Index to Conference Eulings. 849 Transit privilege— Coniinucrf. Ruling special understandings not published 20 storage, free, at one point for one industry; disapproved . . 5 traffic moving into concentration point retains privileges un- til expiration of limit regardless of cancellation 80 Transmission of messages by telephone or telegraph, interstate 305 Transportation (see also Free transportation): carrier engaging in, without published rates 90, 184, 194 meals may be furnished, but must be offered separately... 28 money only can be accepted in payment for 207 transfer may be furnished, but must be offered separately (omnibus arrangements) 164 Trap car service, without tariff authority, unlawful 97 Traveling secretaries. Young Women's Christian Association, no passes 278 Troops, Federal, transportation of, under orders 218 Trucks destroyed on foreign line, return free to road owning . . 224 Trunks. See Baggage. Tw^o cars for one. See Cars. Undeiliverbd shipments of liquor, prepaid charges 367 Undercharges: arising out of misquotation of Canadian rates, must be col- lected 262 carriers must exhaust legal remedies in collection 314 Commission does not determine who is liable to pay 314 delivering carrier must collect lawful charges upon prepaid shipments 156 legal expense to collect, valid claim against carrier at fault 16 misrouting, adjustments among carriers 214/ offsetting of under or over charges, no jurisdiction 323 relief of agent does not relieve carrier from collecting .... 151 set-off against overcharges, by carrier 323 waiver of, cases on informal, docket 472 Understandings, special between carrier and shipper, not in tariffs 20, 235 Uniform bill of lading (see also Bill of lading) : carrier should advise shipper of higher rates applying when not used 160 four months' clause in 510 measure of damages under; value of lost property 387 Uniform demurrage code: indorsed by Commission 242 Uniforms: duty of carrier with respect to 134 passes to makers of, under contract 134 Union station, no passes to restaurant employees 340 Unloading : part of shipment at intermediate point, legal under tariffs . . 233 prevented by weather, tariff rule waiving demurrage 135 850 Index to Conference Rulings. Ruling Unpublisiikd rate not a basis for reparation 419 TfNUSED PORTION OF TICKET (SeC (llSO TiCKETS): excursion on basis of intermediate excursion fare 265, 303 invalidated by agent's error 266, 390 refund of value by carrier . .76, 115, 116, 238, 265, 266, ,?.03, 380, 393 Use, carrier may not dictate use to which shipment is put 34 Validation of tickets: conditions in tariff must be observed; at points other than destination 75 error of agent, tickets not properly validated, refund 167 failure of passenger to secure, tariff rule may permit refund 125 Valuation : bonds, falsely declared by consignor 58 clause, signature to, on bill of lading 226 declared by consignor's agent; charges must be collected on basis of 188 of lost goods under uniform bill of lading 387 petitions of shippers and carriers with respect to agreed or released rates 504 rates based on 295 rates based on, of property as declared at the time and place of shipment 496 released rates under Cummins amendment as further amended 500 Vendor or vendee, f. o. b. shipment, liability for demurrage at point of origin 96 Veterinary surgeon performing bona fide service (pass) 449 Violation of amended fourth section 293, 395, 406 of amended fourth section (export and import) 299 when not in, of fourth section 304a Waiters may be carried free on private cars r 301 "Waiver of underciiarge. informal docket cases 472 Washout {see also Diversion) preventing passenger from com- pleting journey under ticket, refund additional fare paid 116 Watch and time inspectors, passes 478 Water line: advancing charges to, when not common carrier, unlawful 62 canal boats, subject to act if through arrangement with rail line 241 interchange of railroad passes for employees of 95£i^, 196 joint rate with rail carrier subjects traffic to jurisdiction . . 66 Panama Canal act interpreted 461 through billing over rail and water lines in absence of joint rate 354 Water transportation: coastwise and export business defined 353 coastwise traffic moving on through bill of lading to inland rail line point 401 Index to Confeeexce Rulings. 851 V.'atkr TUA.N'.sroRTATiox — Contin iird. Rulin;^ port to port, in connection with inland rail haul, subject to act 155 joint rates to and from Porto Rican ports legal 201 Weatheb: inclement, preventing removal of goods from storage 4 4 inclement, preventing unloading, tariff rule waiving de- murrage 135 \Veigiiixg burkau of carrier, pass to employee of oTl Weight. See Minimum weight; Fictitious weight; Estimated WEIGHT ) . V/estbouxd rate can not be used eastbound 32 Widow of employee. {See Family.) Wireless companies, exchange of passes and franks 410 WiREXESS MESSAGES, ships at sea 3.94 Witnesses, passes to 319, 414 Wreck : diversion of traffic account of; adjustment of charges be- tween carriers 213 passenger injured in, storage charges on baggage refunded ol Written statements of rates 457 VouNG Men's Christian Association, Railway: families of secretaries of railway, no passes 485 free carriage of library books 330 Young Women's Christian Asso