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SUPPLEMENT
TO THE
DIGEST OF DECISIONS
OF THE
Federal Courts and Interstate
Commerce Commission
IN THE MATTER
OF
TRANSIT PRIVILEGES
By
Charles S. belsterung
Of the Pennsylvania Bar
Pittsburgh, Pa.
February io, 1913
Subsequent to the order of the Interstate Commerce
Commission of Aiij»ust 14th in tlic Ti'iinsit Case, 24
I. C. C. Rep., 340, and Supplemental Reixut thcrctc*
25 I. C. C. Rep., 130, many protests were fil(Ml with the
Interstate Commerce Commission as to the manner
and methods employed by the railroads in carryinji; out
the previous orders (»f the Commission dealiuii' with the
regulation of transit privile,ffes on <?rain, includincf the
increase in charges that were exacted upon the move-
ment of milled products of grain over what were for-
merly charged for a like movement of similar tonnage.
Also protests were received from the lumber interests
and the cotton merchants as to the operation of transit
privileges under the tariffs of the carriers. In conse-
quence of which the Commission held a hearing in Wash-
ington during the week of December 30, 1012, for the
purpose of hearing from any parties who desired to be
heard in the matter of substitution of tonnage at transit
points and the charges that were in any wise affected
by such privileges.
Following this hearing the Commission under date
of February 10, 1913, issued the Third Supplemental
and Final Report in the Transit Case, 26 I. C. C. Rep.,
1, infra, revoking Conference rulings Nos. 181, 203 and
Rule No. 76 of the tariff circular referred to in para-
graphs Nos. 154 and 155 of this book.
The followiiif; is ihe full text of the decision:
THIRD SUPPLEMENTAL AND FINAL REPORT
OF THE COMMISSION.
McChord^ Commissioner:
"The Commission's investigation of the general
qnestion of transit privileges has continned withont in-
terrnption throughout the past year. Practices dis-
closed during the early part of the year made it seem
advisable to us to enter an order of such a character as
would show up and bring forcibly home to the respond-
ents publishing the tariffs, and also to those using the
])rivileges. the proper relation of the tariffs and the
practices to the law. It was clear to us that the tariffs
in many instances named the privileges in such man-
ner as to conceal their real application, and, as proof
of this, careful inspection by the Commission at mill-
ing points demonstrated that rates and practices were
not being enforced in accordance with the published
tariffs. Taking the situation as then presented and rec-
ognizing the right of the carriers to initiate tariffs, the
ordei' effective August 15, 1012, was directed against
the respondents publishing transit privileges on grain
and grain products, requiring them to place certain re-
strictions around the privileges as published, which, in
the opinion of the Commission, were necessary to meet
the evils found acconi])anying the operation of the tariffs
then in force.
The result of this order was what we expected it
would be. namely, it demonstrated beyond cavil the loose
and irresponsible manner in which the transit privi-
leges were being operated. The order served to bring
to the surface the real nature and scope of the privileges
and rates ns published. \vher(Mipon it was found that the
tariffs did not in reality contain the privileges that they
■were supposed to contain. The result was that the
tariffs were then for the first time properly applied —
that is, thej were then enforced in the manner in which
they shonld have been enforced at all times.
In other words, the effect of this order of August
15, 1912, was that for the first time in the history of
transit the tariffs were effectively enforced. The ship-
pers and millers, particularly in the northwest and
southwest, at once complained that their_ business was
seriously hurt and it was said that the order of the Com-
mission was too severe. This proceeding (docket No.
3002) was purposely kept open in order that the Com-
mission might promptly deal with whatever situation
arose, and it at once took up complaints of the millers
and shippers and made exhaustive examination into
the real cause of the hardships complained of. Our con-
elusions as to the responsibility for these burdens were
quite fully covered in the supplemental opinion of No-
vember 12, 1912, and it will not be necessary to repeat
what we then said. Particular attention is invited, how-
ever, to our conclusions in that opinion as to the abil-
ity of the respondents to legalize certain practices by
providing in their tariffs for through routes and joint
rates.
The course thus followed by the Commission made
it apparent to all that an intolerable situation had arisen
due to the failure of the carriers to so publish their
tariffs as to keep pace with the transit privileges, and
openly and precisely publish, as the statute says they
shall, every rate, practice, or privilege that the respon<l-
ents permit on their lines. The failure of the respond-
ents to obey the law in this important regard may be
set down as the primal cause of the many difficulties
which have been brought to our attention. At this point
we realized that it was highly advisable, if not our duty,
to aid the respondents in every way possible in speedily
relieving the situation, and in order that the Commis-
siou and the oarriers might have the benefit of the com-
bined wisdom of the siiipping interests npon the wliole
(inestion of transit, representatives of those enjoying-
transit privileges on all commodities were invited to a
conference where they could iniitnally confer over the
matter and, if possible, make informal recommenda-
tions. This oi)portnnity was accepted by the shippers
and we have before us their suggestions, which are in
the form of a substitute for onr Knle 70, Tariff Circu-
lar 18-A, dealing with transit. Immediat(dy following
this conference the Commission sat and listened to all
parties who desired to be heard on the general subject
of transit privileges upon any commodity. At this
hearing, Avhich extended over an entire week, the repre-
sentatives of the carriers were present, and all parties
were fully heard. In order to promote the consideration
of the propositions advanced as the result of this con-
ference and hearing, the Commission, as soon as pos-
sible, invited the carriers to send representatives to a
conference which should carefully consider the entire
situation, and especially the ])ropositions advanced on
behalf of the millers and shippers. This conference was
duly held, and its recommendations are also of record.
It has come to pass now that the entire subject of
transit privileges and their regulation is presented upon
a basis somewhat distinct and apart from that upon
which it has been heretofore approached by the Com-
mission. The atmosphere has been cleared, so to speak,
and the actual conditions are understood and recog-
nized more completely, we think, than ever before. The
ti'uth of this last statement seems verified by the very na-
ture of tlic ])ropositioiis that have come from both of the
conferences abov(^ referred to. Tt is fair to sum up these
recommcndntions as a i-equest for the authorization of
substitution. The only limitation thereto is that one
article or commodity should not be substituted for an
entirely different article or commodity. In other words,
it is desired to regard all wheat as wheat, and all corn
as corn, and all hardwood as hardwood. The shippers'
conference adopted a resolution to the effect that said
KuU? 70 is "commercially unworkable." Both confer-
ences requested that Rule 76 be abolished, and, g-s it is
true that all the Commission has said upon the subject
of transit since this rule was adopted has been based
upon that rule, it is clear that when it is superseded,
practically all of the Commission's subsequent require-
ments, rules, and orders on the subject of transit go with
it, in so far as they constitute binding rules of action.*
Our previous administration upon the subject of
transit can be said to have been under circumstances and
conditions quite different from those of the present day.
]\ruch that we then set out to do in the way of bringing
the carriers and shippers to a realization of the unlaw-
ful status of the business has been accomplished. As
before stated, we have again gone over this entire mat-
ter with exhaustive investigations, inspections, confer-
ences and hearings, and we think that the time has come
to take a stand upon this general subject which may
appear to be somewhat inconsistent with our attitude
in the past. However that may be, we intend that the
views which we now express shall supersede all that has
been promulgated heretofore on the subject of transit
privileges and their regulation in so far as it may have
constituted a rule of action.
*This abrogates the policing rules under Caption XVI — in
so far as they constitute binding rules of action, although there is
no change in the mandate of the laws in that the transit rules
must not be unreasonable, unjustlj^ discriminatory nor unduly
preferential.
The initiative is now placed in hands of the carriers to make
their own transit rules under their own responsibilities and liabil-
ities imposed upon them by the act, subject to appropriate action
upon the part of the Commission or the courts in the event that
the rates, regulations or practices are found to be in violation of
the law.
We understand that the carriers' conference above
referred to took the substitute for Rule 76 proposed by
the shippers' conference as the basis of its deliberations.
The substitute proposed by the carriers' conference con-
tains the same general thought as that of the shippers,
and is as follows:
When rules and regulations have been estab-
lished in tariff form clearly defining the purpose or
purposes for and the terms under which transit
privileges are granted, and providing also for the
effective policing of the operations under the ar-
rangement, a shipment may be stopped in transit
and the same shipment or a proper equivalent (less
invisible loss in weight), as set forth in said rules
and regulations, may be forwarded at the through
rate provided for by tariff from the original point
of shipment to final destination plus the charge for
transit privilege, if any. (This rule shall not be
constriu^d to authorize the publication of tariffs pro-
viding for the substitution of one commodity for
a commodity of a different kind. That is to say,
oats or the products of oats foi* corn, corn or the
products of corn for wheat, wheat or the products
of wheat for barley, or shingles for lumber.)
The Commission has been assured, both on behalf
of the carriers and the shippers, that the carriers can
lawfully publish tariffs sp(H'ifically permitting substi-
tutions in so many words, and that in the absence of a
showing that they are unrensonable, or unjustly dis-
criminatory, or unduly preferential, they are entirely
proper, and, as we are told, no harm is done. The pro-
posed amendments to Rule 76 are drawn with this idea
in mind. Upon c;ireful consideration of the whole mat-
ter it is our couclusion that we should accede to the re-
quest that Rule 76 be canceled, but, on the whole, we do
not think that it would be wise, even if within our prov-
ince, to publish as a niliiij; of the Commission such a
requirement as has been proposed. It is our best judg-
ment that the policy of niakiiiti; orders, drawinj' rules, or
expressing views as to what would or would not, under
certain conditions, be considered a violation of law as
to transit privileges, be now departed from by us, as the
carriers are charged with the duty of initiating their
rates, regulations, and practices under their own re-
sponsibilities and liabilities imposed upon them by the
act, subject to the appropriate action on the part of the
Commission or the courts in the event that the rates,
regulations, or practices are found to be in violation
of law.
If tariffs can be filed as proposed providing for the
lawful exercise of transit practices upon grain or other
commodities, and published rates maintained, the car-
riers are, of course, at liberty to proceed accordingly.
If difficulties arise over the rates and practices upon
questions of unjust discrimination, unreasonableness,
or undue preference, or if there is involved the question
of through routes and joint rates, these are matters
which are peculiarly within our province and can be
disposed of by following the procedure set out in the
law.
Should action be necessary on our part under the
provisions of the law above referred to which specifi-
cally authorize us upon proper showing to grant relief,
we think that public interests demand that upon its
being made to appear that such relief is needed, we in-
stitute an entirely new proceeding in the nature of an
investigation upon our own motion or upon general
complaint for the purpose of determining whether or
not any one or more of the first three sections of the act
are being violated, or whether relief under section 15
should be orderd.
This report will close the so-called Transit Case,
Docket No. 3002. There should be no reason for delay
on the part of respondents in proceeding to file tariffs
which will lawfully meet the situation.
The order heretofore entered in this proceedino:
will be revoked, and Conference Rulings 181, 203, and
Rule 76 of the Tariff Circular are withdrawn."
'0
y
DIGEST OF DECISIONS
OF THE
Federal Courts and Interstate
Commerce Commission
IN THE MATTER
OP
TRANSIT PRIVILEGES
BY
CHARLES S. BELSTERLING
of the Pennsylvania Bar
Pittsburgh, Pa.
January i, 1913
COPYRIGHT, 1913
BY
Charles S. Belsterling.
^ TABLE OF CONTENTS.
{.
(References are to Paragraphs.)
I LEGALITY
Commission contended originally act does not
sanction transit privileges 1
Compression of cotton in transit not unlawful 2
Floating cotton in transit not unlawful 3
Transit privileges when reasonable not in viola-
tion of the act *
Transit privileges have cheapened cost of trans-
portation and probably of manufacture 5
There is a limit to products that can be reason-
ably milled in transit ^
Milling grain in transit not unlawful 7
Feeding and grazing stock in transit not unlawful 8
Fabrication of structural steel in transit not un-
lawful ^
Assorting and grading of wool in transit not un-
lawful - ^^
Treating corn in transit not unlawful (beneficial
to carriers, dealers and the public) H
Storage in transit without charge therefor and
time limit disapproved 1-
Allowances for elevation in transit not unlawful.. 13
Transit privilege is beneficial when applied with-
out discrimination
Privilege conditioned only upon use to which
commodity is put unlawful
n
II NATURE OF SERVICE
Service same as two local shipments 16
Illiistration 17
Method of assessing; freight charges 18
Services rendered remedy an artificial disad-
vantage 19
III JURISDICTION OF THE COMMISSION.
Has no anthorit}' to require granting of milling in
transit privilege 20
Has no anthority to reqnire granting of milling
in transit privilege 21
Has no authority to grant privilege corresponding
to milling in transit privilege 22
Has authority to remove unjust discrimination in
transit privileges 23
When reconsignment charge is within Jurisdic-
tion 24
When reconsignment charge is not within juris-
diction 25
Intention to reconsign within the state after
delivery exempt from jurisdiction of Com-
mission 26
Jurisdiction over compression of cotton 27
Jurisdiction to award damages for unlawful dis-
crimination in elevator allowances 28
Reparation aw^arded for unlawful discrimination
in elevator allowances 29
Supreme Court rules allowances for elevation are
under jurisdiction of the Commission 30
Ill
Amendment of 1906 gave the Commission plenary
powers over transit 31
May require accounting of Interstate and Intra-
state transit and non-transit tonnage 32
IV ALLOWANCE OF PRIVILEGES
Allowance depends upon facts in particular case.. 33
Milling in transit is a privilege not a right 34
Purposes for which allowed :
Grading and sorting of merchandise 35
Cleaning and sacking grain 36
Elevation 37
Compression of cotton 38
To mill owner who controls connecting road... 39
May lawfully refuse to allow privilege -10
May lawfully refuse to allow privilege 41
Treatment or reconsignment in transit a privilege
not a right 42
Reconsignment a privilege not a right 43
On acid phosphate and phosphate rock 44
May withhold privilege from different products of
same raw material 45
After lapse of two years cannot order it restored
nnless resting upon some legal obligations.... 46
Petition for rehearing in above two cases denied.. 47
Extension of privilege into new territory not gen-
erally allowed 48
Extension of privilege into new territory to be
curtailed rather than extended 49
IV
V AGREEMENT BETWEEN CONNECTING CAR-
RIERS FOR ALLOWANCE OF PRIVILEGE
Carrier may refuse to become party 50
Carriers may agree with logging roads for privi-
lege to industries thereon 51
VI CONTRACTUAL RELATION BETWEEN SHIP-
PER AND CARRIER
Abrogation of privilege would confiscate property 52
Contract for allowance of privilege is enforceable 53
Carrier cannot alter relation when once estab-
lished 54
VII PUBLICATION CONDITION PRECEDENT TO
LEGALITY
Terms of privilege should be stated in tariff 55
Terms of privilege should be stated in tariff 56
Terms of privilege should be stated in tariff.... 57
Terms of privilege should be stated in tariff 58
Publication of privilege required by Section 6 of
the Act as amended 59
Publication of all transit privileges subsequently
ordered by Commission 60
Act requires publication of privilege 61
Failure to publish cause for refusal of reparation
to injured party in unlawful contract 62
Privileges granted without publication in violation
of the law 63
Can not be enforced against carrier in absence of
published tariffs 64
VIII CHARGES FOR ALLOWANCE OF PRIVILEGE
Extra compensation for permitting milling in
transit 65
Extra compensation for treatment and reconsign-
ment privileges 66
Charge should not exceed actual cost — (reversed) 67
Entitled to compensation in addition to actual cost 68
Charge for privilege should be in proportion to
service 69
Particular facts of each case to govern 70
Carrier not required to perform back haul with-
out reasonable compensation therefor 71
Charges for the transit privilege should be non-
discriminatory 72
Reasonable reconsignment charge where only
name of consignee is changed 73
Reasonable reconsignment charge where destina-
tion is changed 74
Illustrations of reasonable charges for reconsign-
ing 75
Claim for refund reconsignment charge due to
defective tariff dismissed 76
Powers of Commission to restrict allowances for
elevation to shipper 77
Commission recommends elevation allowances 78
Distinction between charges for commercial and
transportation elevation 79
VI
IX ABSOKBING OK DIMINISHING LOCAL OR PRO-
PORTIONAL INBOUND RATE
Rate "in" caunot be absorbed or diminished by
"out" rate not in effect when shipment moved 80
X DISCRIMINATION BETWEEN SHIPPERS
Carrier must not discriminate 81
Privilege, when allowed, must be extended to all
shippers alike — .. 82
Privilege will not be established or extended in
absence of discrimination 83
Must not discriminate between shippers in an-
other section served by its line 84
Discrimination in rules and interpretation thereof
between shippers 85
Discrimination in rules and interpretation thereof
between shippers 86
XI DISCRIMINATION BETWEEN LOCALITIES
Not necessarily unlawful 87
Not necessarily unlawful 88
Not undue where conditions differ 89
Not unjust where there is a dissimilarity of con-
ditions 90
Does not necessarily constitute undue prejudice.. 91
Where rates are not unreasonable 92
Where conditions are substantially dissimilar 93
Where disadvantage is not the result of unjust
discrimination 94
VII
Where only one of several defendants serves all
points involved 95
Where conditions are not alike 05
Equalization of advantages of localities 90
Not within province of Coinmission to overcome
disadvantages of location by adjustment of
transportation charges 97
Not within province of Commission to take away
advantages of location 98
Where discrimination is unlawful between localities 99
Where discrimination is unlawful between localities 100
Where discrimination is unlawful between localities 101
Where discrimination is unlawful between localities 102
Where discrimination is unlawful between localities 103
Where discrimination is unlawful between localities 101
Where discrimination is unlawful between localities 105
Where discrimination is unlawful between localities 106
Where discrimination is unlawful between localities 107
Where discrimination is unlawful between localities 108
Where discrimination is unlawful between localities 109
Where discrimination is unlawful between localities 110
Export rate on grain compared to export rate on
flour milled in transit Ill
Allowance of privilege must be without unjust
discrimination 112
Allowance of privilege must bo without unjust
discrimination 113
Allowance of privilege must be without unjust
discrimination 114:
Discrimination may be justified by competition. ... 115
VIII
XII DOING BUSINESS UNDER OPEN RATES
As distinguished from milling in transit 116
Relation of milling in transit rates at one point
to open rates established at rival point 117
XIII RECONSIGNING
Reconsigning to secure benefit of through rate
lower than combination 118
Reconsigning to test the market 119
Reconsigning is a privilege not a right 120
Reconsigning includes changes in destination,
routing or consignee 121
Reconsignment on shipper's order of part lots of
consignment of goods held in storage 122
Carrier liable upon refusal to reconsign according
to published rules 123
Reconsignment rate higher than the proportion of
the through rate 124
Reshipping rate from primary grain market 125
Can not enforce demurrage enroute while parley-
ing with connections 126
XIV RATE TO BE APPLIED ON RESHIPPED COM-
MODITY
Through rate plus charge for privilege 127
Changes in rates do not affect shipments in course
of transportation 128
Through rate in effect at time shipment first moved 129
IX
Rule in tarilf providing rate applicable from
reshipping jjoint not sanctioned 130
Rate applied on shipments refused by consignees
or damaged in transit 131
Rate applied on shipments refused by consignees
or damaged in transit 132
Rate applied on shipments refused by consignees
or damaged in transit 133
Rate applied on shipments refused by consignees
or damaged in transit 134
Rates must be applied only via the route over
which shipment moved 135
Carrier liable for overcharge due to misrouting
transit shipment 136
Reconsignment rates optional with carrier un-
lawful 137
Shipment that moved in under a former tariff
does not lose the benefit of through transit
rate cancelled pending the out movement 138
Shipment that moved in under a former tariff
does not lose the benefit of through transit
rate cancelled pending the out movement 139
Through transit rate not availed of cannot be
renewed after the expiration of the time
allowed in the tariffs 140
Strict compliance with rules necessary to use of
privilege 141
New policing rules apply to all tonnage 142
Through transit rate will not be given a retroac-
tive effect 143
Through transit rate will not be given a retroac-
tive effect 144
Through transit rate will not be given a retroac-
tive effect 145
X
Through transit rate will not be j;iven a retroac-
tive efifect 146
Through transit rate will not be given a retroac-
tive effect 147
Through transit I'ate will not be given a retroac-
tive effect 148
Through transit rate will not be given a retroac-
tive effect 149
Through transit rate will not be given a retroac-
tive effect 150
Rates applicable whei-e goods destroyed while sus-
pended in transit 151
Rates applicable to shipments stopped short of
intended destination 152
XV SUBSTITUTION
Necessity for substitution 153
Impracticable to reforward identical carload of
grain 154
Tariff rule providing for equivalent tonnage,
cement or plaster, held to be unlawful 155
Rule 76 Tariff" Circular 17-A not too strict 156
Substitution after discontinuance of bankruptcy
proceedings 157
Cross billing is a technical discrimination and is
not undue 158
Tariffs may be adjusted to legalize necessary sub-
stitutions and cross billing 159
Unlawful substitutions enumerated 160
Commercial conditions render it impossible to
reship the identical commodity 161
Substitution under C. F. A. grain rules discussed.. 162
XI
XVI POLICING
Carrier and shipper held alike responsible for
abuses in substitution 163
Duty of shipper to submit to policing 164
Duty of Commission to supervise and regulate 165
Transit rules should be uniform 166
Commission's rules for policing 167
Approval of bureaus for policing purposes 168
Approval of bureaus for policing purposes 169
Records 170
Certificates 171
Daily reports 172
Daily reports 173
Expense bills 174
Daily cancellation of billing , 175
Time limit 176
Wastage 177
Wastage 178
Mixed feed ; 179
Dissenting opinion pertaining mixture transit
and non-transit commodities 180
Mixture non-transit and transit assists small mills 181
XVII CARRIER'S DUTY TO FURNISH CARS
Duty to furnish equipment rests upon inbound
carrier 18^
Table of Cases Cited 1^9
Act to Regulate Commerce (including Interpretations
Thereon Pertaining to Transit Privileges) 147
XIII
FOREWORD.
The law portainiriG: to transit priyilpffes, as; intorpretorl by
the Interstate Commerce Commission and the Federal Courts,
is declaratory of certain customs which have existed for many
years bnt the Commission has safe.ijnarded these customs by
riirid policing; rules so as to prevent discrimination. If these
policing rules are enforced effectively a transit rate will be
ideal in that it will place all such points of manufacture and as-
sembling: upon a parity.
The Federal Statutes condemn unreasonable and dis-
criminatory rates. The early opinions of the courts however
looked solely to the reasonableness of the rate and recognized
no rate as discriminatory as such. Later the courts ruled
against unreasonable differences and finally, today, outright
discrimination as well as unreasonableness is universally con-
demned. The rule against discrimination as such is therefore
new. There has been such a rapid development of manufacture,
transportation and commerce in this country within the past
decade that the legislatures and courts have found difficulty
in keeping pace with the new order. The doctrine of discrim-
ination has been incorporated in our statute to prevent dis-
criminatory practices in favor of the large shipper against the
smaller.
There can, however, be no such thing as an ideal non-
discriminatory rate where one general rule of compilation is
enforced universally. The class rate basis which groups the
different commodities in various classes is the fundamental
principle of our rate structure. This is the general practice
throughout the entire couTitry. As an exception to this gen-
eral rule we have the commodity rate; namely a rate which
XIV
takes the commodity out of its class and accords it a partic-
ular rating. It affords the particular industry a broad
field for the marketing of its product and at the same time nets
the carrier a fair return for the services performed. A com-
modity rate is predicated upon the needs of a particular in-
dustry, and opens our markets to the widest possible competi-
tion. Any attempt to abolish it would be commercial folly.
Neither the class nor commodity rates however are founded
upon any scientific theory but rather have been the outcome of
long 3'ears of experience in transportation and commerce. They
have been made to meet the development of the various sections
of the country. As was said in the Burnham, Hanna, Munger
Dry Goods Company case 14 I. C. C. Eep. 299 :
"As railroads were constructed into the undeveloped
west and, for a time at least, had their western termini
at the east bank of the Mississippi River, it seems natural
that when the river was crossed, and rates were established
to points beyond, they should be constructed by adding
certain sums to the rates already established to the river,
and as additional lines were built and additional railroad
crossings over the Mississippi River were constructed,
competition between carriers and localities naturally
established common I'ates to the Mississippi River cross-
ings, especially when applied to traffic going beyond.
As the west was further developed, this same condi-
tion and like results followed at the several crossings of
the Missouri River, so that today the rates from the Miss-
issippi River crossings to the Missouri River crossings,
Kansas City to Omaha, inclusive, are the same, and from
points east, to the Missouri River Cities, are the same via
any of the Mississippi liiver crossings, East St. Louis to
East Dubuque, inclusive."
This method of compilation by which the rates are broken
at certain crossings or gateways, as for instance cities on the
xv^
Missouri, Mississippi and Ohio Rivers, or other arbitrary points,
is such that it can not be applied universally over such a wide
expanse of territory as the United States and cover such a
diversity of interest without beinji^ discriminatory in some
respects.
The principal deficiency is that the sum of the two local
rates is greater than the through rate except at certain rate
breaking points. As all products must be concentrated or as-
sembled at some point en route for manufacture or for other
purposes this basis would seem to be impracticable in that it
would confine manufacturing or assembling to the primary point
of origin or to an established rate breaking point or to the ul-
timate place of consumption. This is overcome to a certain
extent by making a lower bases of rates on the raw materials
into the plant than on the manufactured product outbound.
The raw materials, generally speaking, load heavier, are less
valuable and less susceptible to damage from a transportation
standpoint.
We have another exception to the general rule in what is
known as the transit privilege, namely ; the privilege of allowing
the owner of the freight to stop the car en route, unload the con-
tents for the purpose of manufacturing, cleaning, assorting,
grading or doing other legitimate work thereon, and then reload
and reforward to final destination. One through rate of
freight is paid from primary point of production to final
destination ])\v.s a reasonable charge for the stopover privilege.
In fact, in most of these cases where the transit privilege
is allowed the inbound material is inherently and substantially
the same as the outbound from a transportation standpoint.
As for example wool before and after it is assorted and graded,
timber before and after it is dressed, structural steel before
and after it is fabricated and cotton before and after it is
compressed. On wheat and flour, however, there is a dis-
similarity in the two commodities.
XVI
111 limiiic these transit privileges appear to be neither sound
in theory nor practice. The Commission in the first year of its
existence suggested that the Act did not sanction such privi-
leges, and also suggested litigation if they Avere not discon-
tinued. Yet the deeper we dig into this subject the more clearly
do we recognize as confiscatory any rule that would do away
with the privilege as it now exists and equally as confiscatory
any rule that would extend the privilege where it does not exist.
It has been suggested as an alternative for the transit
privilege that the railroads yield slightly in their local rates
to and from point of stoppage or to rate these transit com-
modities similar to other products — namely make a higher basis
on the outbound than on the inbound. Commercial conditions
rendered this impracticable on certain few commodities. Let
us take wheat and flour as an example where commercial con-
ditions make it necessary that there should be a common rate
on both although from a transportation standpoint the elements
of classification are dissimilar. Some years ago the railroads
differentiated the common rate on export fiour and wheat which
common rate had existed for many years prior thereto. The
rates on export flour were advanced from four to eleven cents
higher than wheat. The export^ flour industry of the northwest
was threatened with destruction. It soon became evident that
it was impracticable to rate these commodities similar to the
general rule. Experience showed further that the industries
could not live unless relief was granted by allowing the wheat
to be milled in transit. Consequently transit on grain has
become universal — it has proved beneficial to the farmer, to
the railroads and to the public. It diffuses small mills all
over the country and it enables the farmer to market his wheat
with profit. Further, grain products cannot ordinarily be
taken directly from the field to the consumer, they must be
stored and sold at some concentrating point. Elevation of grain
in transit, permiting the immediate unloading of the cars and
their immediate return to the farmer — is equally beneficial to
all concerned.
XVII
The stopping of wool in transit is also a fair oxample of
the necesity for the transit privilege. There are many grades of
wool in the same fleece and many grades in the same flock.
It is necessary that large quantities of wool be concentrated at
some point en route for the pni-pose of assorting and grading.
Under the general rate structure the concentration may be
done in transit at St. Louis or Chicago without additional
freight cost because the tariffs are so constructed as to break
at those points, while if concentrated at Detroit the sum of the
two locals in and out would be prohibitive in comparison with
the through overhead rate. It is quite obvious that this disability
of Detroit is due to an artificial circumstance. The in and out-
bound commodities are similar from a transportation stand-
point. Accordingly concentration in transit is permissible at
all points where needed en route.
Likewise cotton is compressed in transit. Cotton as mar-
keted by the producer is in a uncompressed state — it is neces-
sary to submit the coton to high pressure so as to increase the
density of the cotton. This process can only be done at com-
paratively few points. The cost of the machinery for doing the
compression is very high. Compression in transit on the basis
of the through rate is beneficial to all concerned. It benefits the
transportation company — the freight is densified — it ben-
efits the grower as the cotton buyer can purchase his
cotton direct — have it compressed and graded in transit
and send it to its destination — it also remedies a sys-
tem of rates in the south vrhich discriminates in favor of
certain trade centers thus accomplishing in one way what the
statute was intended to cover in another — namely ,prevent
discrimination.
Therefore to meet the nec(»ssities of comnuM-ce whei-ein our
present basis of rates in constructing the sum of locals greatly
in excess of the through rate cannot be enforced without de-
stroying commerce, grain of all kind is milled in transit, flour is
blended, cotton is compressed, wool is assorted and graded, corn
XVIII
is treated, sti'iictnral steel is fabricated, lumber is dressed and
perhaps otherwise mauufactiired, live stock is fed and grazed
and also stopped off to test the market. Based npon these
particnlar practices hundreds of millions of dollars have been
invested and the privileges could not be discontinued without
impairing enormous values.
As the abrogafion of the transit pi'ivilege, wherever it now
exists would be an uujustiliable conliscatioii of property values,
so an extension of the privilege on other commodities would
likewise confiscate the revenues of the great transpor-
tation interest. '^There is a limit to the commodities
that can be reasonahhj milled in transit." It has been allowed
in cases where the necessities of the particular commodity
justify it and where it has proved beneficial to the carrier,
the public and the dealer. The test of its allowances is- — is it
necessary for the life of that particular trade, and not
is it convenient? If commercial experiences show that the
privilege has not been necessary heretofore on any pai'ticular
commodity to extend it to other commodities would mean the
unwarranted destruction of railroad revenues and the impair-
ment of values of industries that have grown under another
bases of rates. It is, therefore, self evident transit has come to
stay on those commodities where it is necessary for the preser-
vation of the life of the particular industries, but it is not likely
to be extended to products other than those upon which the
privilege has already been allowed.
The safe guarding of the transit privileges so as to prevent
discrimination is one of the most perplexing matters the Cora-
mission has had to meet. The contract of transportation is
a unit of service. It begins when the goods are delivered to
the cari'ier and it terminates when the goods are delivered by
the carrier. The lading, during the entire life of the bailment,
is under the conti'ol of the carrier. With the transit privilege
the transportation is suspended at some point short of final
destination — the lading is removed, the goods are manufactured
XIX.
assorted or fabricated or other legitimate work done thereon
and afterwards reshipped in another car and sent to its final
destination under the original contract. During the suspension
at transit point an opportunity is offered for substituting
products other than those which moved in under the transit
rate, or substituting products different from those covered by
original contract of transportation. These abuses, among other
things, all tend to impair the integrity of the through rate, and
open the avenues of commerce to discrimination. The new rules
as promulgated by the Commision, if properly inforced, should
prevent abuses of the privilege in which case we should have an
ideal situation in our rate structure — namely a truly non-dis-
criminatory rate. As under the privilege all shippers of like
commodities are on a parity.
The purpose of this digest is to collect and bring up to date
all of the decisions of the Federal Courts and the Interstate
Commerce Commission as they deal with transit privileges.
Charles S. Belsterling.
Pittsburg, Pa.,
January 1, 1913.
DIGEST OF DECISIONS
IN THE MATTER OF
Transit PrivileQ;es
I. Legality.
II. Nature of Service.
III. Jurisdiction of the Commission.
IV. Allowance of Privileges.
V. Agreement Between Connecting Carriers for Allow-
ance of Privilege.
VI. Contractual Relation Between Shipper and Carrier.
VII. Publication Condition Precedent to Legality.
VIII. Charges for Allowance of Privilege.
IX. Absorbing or Diminishing Local or Proportional In-
bound Rate.
X. Discrimination Between Shippers.
XL Discrimination Between Localities.
XII. Doing Business Under Open Rates.
XIII. Recon signing.
XIV. Rate to be Applied on Reshipped Commodity.
XV. Substitution.
XVI. Policing.
XVII. Carrier's Dutv to Furnish Cars.
I. LEGALITY.
COMMISSION CONTENDED ORIGINALLY ACT DOES NOT SANC-
TION TRANSIT PRIVILEGES.
1. The third section * * * makes it unlawful
* * * to give any undue or unreasonable prefer-
ence or advantage to any particular locality. The
question may be raised under this section whether it
would not be unlawful for a carrier to give the privi-
lege of milling in transit to one town on its line and
deny it to others ; * * * We shall refrain entirely
from expressing any opinion * * * The earner
will be apprised that the concession may not unlikely
be followed by controversies * * * possibly by
litigation.
Cretos vs. Richmond t£- D. R. R. Co., 1 1. C. C. Rep.,
490 (1887), Rep., 703 (1888).
COMPRESSION OF COTTON IN TRANSIT NOT UNLAWFUL.
2. A railroad company is not guilty of an unlawful
discrimination or preference in violation of Sections 2
and 3 of the Interstate Commerce Act by receiving cot-
ton from a shipper at Delhi, La., shipping it to Vicks-
burg, having it compressed there at the Company's ex-
pense, and reshipped to eastern points, where such an
arrangement is in compliance with a recognized cus-
— 2-
tom, of wliieli all oIIkt shippers, including the peti-
tioner, could or did avail themselves, and where it does
not appear that the petitioner desired to ship any cot-
ton from Delhi lo the eastern points, or that he was
compelled to pay a higher rate under similar circum-
stances.
Coican vs. Bond, 39 Fed. Rep., 55, 2 I. C. C. liep.,
542 (1889).
FLOATING COTTON IN TRANSIT NOT UNLAWFUL.
3. Before the practice of floating cotton was inaug-
urated in territory adjacent to Memphis, Tenn., cotton
was sent to Memphis, there to be compressed and for-
warded to point of consumption. Compresses were
later established at adjacent points, and the practice
which followed of floating cotton at such points made
it possible to compress and forward the cotton to mar-
ket as cheaply as could be done by sending it to Mem-
phis. Under this system the cotton was delivered to
the carrier at the producing point, from which it was
carried to a compress point where it was graded and
compressed. It was then reloaded and carried to des-
tination under the published through rate from point
of origin. After compression the cotton seldom if
ever went forward in the same car. In many cases it
was diverted to some other destination than that called
for when the cotton was first received. The practice
resulted in saving to the carrier. It also benefited the
grower. Memphis contended that such shipments
were not through shipments from point of origin, and
-3—
should therefore pay the local rate from point of origin
to point of compress and the pulilished rate from the
latter point to destination. This would have caused
the cotton to go to Memphis. Held : That the ship-
ments from point of origin were through shipments,
and that the movement to the compress was strictly
part of the through movement; tliat the practice was
not in violation of the act.
Re Alleged Unlatvful Rates mid Practices in
Transportation of Cotton^ 8 I. C. C. Rep., 121
(1899).
TRANSIT PRIVILEGES WHEN REASONABLE NOT IN VIOLA-
TION OF THE ACT.
4. At (he present time the principle of milling in
transit is applied to the movement of many commodi-
ties. Under this or some equivalent arrangement
grain of all kinds is milled and otherwise treated in
transit; flour is blended, cotton is compressed, lumber
is dressed or otherwise manufactured, live stock is
stopped off to test the market. Where such arrange-
ments are reasonable, they are not in violation of the
Act.
Central Yelloio Fine Assn. vs. Yickshurg, 8. cC- P.
Ry. Co. et al., 10 I. C. C. Rep., 193 (1904).
TRANSIT PRIVILEGES HAVE CHEAPENED COST OF TRANS-
PORTATION AND PROBABLY OF MANUFACTURE.
5. Nor is it a forced construction of the statute to
hold that when the product finally goes forward to the
poiut of consumption it but completes the journey
upon which it entered when the raw material was
taken up. There can be no doubt that the application
of this principle has cheapened the cost of transporta-
tion and probably of manufacture.
Ihid.
THERE IS A LIMIT TO PRODUCTS THAT CAN BE REASONABLY
MILLED IX TRANSIT.
6. There is, of course, a limit to the products which
can reasonably be included in the list of those which
will be transported at the raw material rate, either
with or without a transit privile,i?e. It might be rea-
sonable to withhold transit privileges from a product
that is essentially different from the raw material and
from the other products of the same raw material
which are accorded transit rates, as for example a
liquid product of grain.
Douglas d Co. vs. C. R. I. cC- P. et al., 16 I. C. C.
Rep., 232 (1909).
MILLING GRAIN IN TRANSIT NOT UNLAWFUL.
7. A rule which provides that grain shipped through
from point of origin to point of final destination may
be stopped at an intermediate point for cleaning, sack-
ing or other legitimate purpose, the shipment after-
wards carrying a proportional or balance of a through
rate, is not unlawful.
Re Rates and Practices of Mobile & Ohio R. R. Co.,
9 I. C. C. Rep., 373 (1903).
5—
FEEDING AND GRAZING STOCK IN TRANSIT NOT UNLAWFUL.
8. In coiinoction with the published privilej;e of feed-
ing and grazing in transit a carrier may lawfully pro-
vide in its tariffs that it will furnish feed at current
market prices and bill the cost thereof, together with
an addition of 10% or other reasonable percentage to
cover the value of its service as advanced charges.
Rule 11 Con. Rul. Bui. No. 5 (1908).
FABRICATION OF STRUCTURAL STEEL IN TRANSIT NOT UN-
LAWFUL.
9. Since the hearing several defendants have issued
tariffs allowing stoppage in transit at Indianapolis
for fabrication of structural iron and reshipping at
the through rate from point of origin to final destina-
tion, provided Indianapolis is intermediate, a charge
of II/2C per 100 pounds to be made for the incidental
service. In view of this development, the complaint
as to this feature is dismissed without prejudice.
Indianapolis Freight Bureau vs. Cleveland^ C. C.
& St. L. Rwy. Co. et ah, 15 I. C. C. Rep., 370
(1909).
ASSORTING AND GRADING OF WOOL IN TRANSIT NOT UN-
LAWFUL.
10. In preparing wool for the spinner it must be as-
sorted and graded, so that the factory may purchase
the kind and quality which is needed for its peculiar
wants. Since there are different grades of wool in the
-6-
saiiie fleoce and many different grades in the fleece the
same flock, it becomes necessary that large quantities
of wool shall be concentrated for the purpose of assort-
ing and grading. Transit privileges should be allowed
* * * under certain restrictions.
A*. 7i*. Com. of Oregon — National Wool Growers
Assn. vs. Oregon ^liort Line R. R. ct al., 23 I.
0. C. Rep., 151 (1912).
TREATING CORN IN TRANSIT NOT UNLAWFUL (BENEFICIAL
TO CARRIERS, DEALERS AND THE PUBLIC).
11. Transit privileges are of benefit to the carriers,
the dealers, and the public. This is particularly true
of corn, which must be put in proper condition for
long hauls or it will heat or freeze in transit, according
to the weather and be subject to rejection at des-
tination.
Bloclgett Milling Co. vs. C. M. & 8. P. Rwy. et al,
23 I. C. C. Rep., 448 (1912).
STORAGE IN TRANSIT WITHOUT CHARGE THEREFOR AND
TIME LIMIT DISAPPROVED.
12. Its attention being called to a tariff which in ef-
fect, created a distributing point for a special indus-
try by granting it free 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 on the balance of through rate, the Commission
expressed its disapproval.
Rule 5 Con. Rul. Bui. No. 5 (1907).
ALLOWANCES FOR ELEVATION IN TRANSIT NOT UNLAWFUL
13. It is evident that if the payment of these allow-
ances were stopped at certain points and to certain
people, while continuing at other points and to other
persons, a condition of discrimination and confusion
might result ^hich would be much worse that that
intended to be corrected by our order in these cases.
It has therefore been decided to postpone the effective
date of that order until July 1, 1909, and to recom-
mend to carriers generally that any action contem-
plated in view of that order be deferred to the same
date. It is believed that if all parties co-operate the
opinion of the Supreme Court of the United States
can be obtained within that time.
Tra-fjic Bureau, Merchants Exchange of St. Louis
vs. C. B. & Q. R. R. Co. et al., 14 I. C. C. Rep.,
551 (1908).
Supremo Court in 222 U. S., 42, decided that al-
lowances for elevation are lawful (See Para-
graph 30).
TRANSIT PRIVILEGE IS BENEFICIAL WHEN APPLIED WITHOUT
DISCRIMINATION.
14. Transit in many cases is beneficial in its applica-
tion. When it can be applied without 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
— 8—
lower transportatioD cliai'i?es. The commercial opera-
tions of this country have in many instances grown up
under 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.
Railroad Commission of Oregon — National Wool
Grotcers Association vs. Oregon Short Line
R. R. Co. ct al., 23 I. C. C. Kep., 151 (1912).
PRIVILEGE CONDITIONED ONLY UPON USE TO WHICH COM-
MODITY IS PUT UNLAWFUL.
15. Complaint attacks as unreasonable a six months'
limit in connection with the milling in transit of logs,
etc., at Memphis, Tenn. ; Held, That as the privilege
is conditioned upon the use to which the commodity
is put, it should not be sanctioned by an award of
reparation. Complaint dismissed.
Memphis Freight Bureau et al. vs. St. Louis dc San
Francisco Railroad Co., 24 I. C. C. Rep., 602
(1912).
II. NATURE OF SERVICE.
SERVICE SAME AS TWO LOCAL SHIPMENTS.
16. The services rendered by the carrier on transit
milled freight are practically identical with those ren-
dered in delivering and receiving distinct shipments
at the milling point.
Listman Mill Co. vs. Chicago^ Milwaukee & St.
Paul Rwy. Co., 8 I. C. C. Rep., 47 (1898).
ILLUSTRATION.
17. Suppose a car containing 50,000 lbs. structural
steel is shipped from Pittsburg to New York City and
fabricated in transit in Philadelphia, Pa. the rate from
Pittsburg to New York City is 16c and to this add
iy2C per hundred for the transit privilege in Philadel-
phia; this would make a total rate of 17y2C per 100
lbs. from Pittsburg to New York City against the sum
of the locals— 15c in and 9c out equalling 24c or a sav-
ing of 6V2C per hundred pounds, or $1.30 per net ton,
or 132.50 per car — although the service in both cases
is identical. — Ed.
METHOD OF ASSESSING FREIGHT CHARGES.
18. Generally in its application the raw material pays
the local rate into the point of manufacture; when
—10—
afterwards the manufactured product goes forward, it
is transported upon a rate which w^ould be applicable
to that product had it originated in its manufactured
state at that point where the raw material was received
for transportation, whatever has been paid into the
mill being accounted for in the final adjustment.
Central Yclloic Pine Assn. vs. Vickshurg S. d P.
R. R. Co. et al., 10 I. C. C. Rep., 193 (1904).
SERVICES RENDERED REMEDY AN ARTIFICIAL DISADVANTAGE.
19. It is patent that the ability of St. Louis and Chi-
cago to handle this wool upon what is equivalent to
the through rate, while Omaha and Detroit can not
do so, results not from any natural advantage pos-
sessed by these favored communities, but solely from
the artificial circumstances that the tariffs of these
carriers are so constructed as to break at these points.
Railroad Commission of Oregon^ et al. vs. Oregon
Short Line R. R. et al, 23 I. C. C. Rep., 151
(1912).
-11—
III. JUEISDICTION OF THE COMMISSION.
HAS NO AUTHORITY TO REQUIRE GRANTING OF MILLING IN
TRANSIT PRIVILEGE.
20. The Commission has no authority to order a car-
rier to grant to shippers the privileges of "milling-in-
transit."
Re St. Louis Millers' Assn., 1 I. C. C. Rep., 22
(1887).
21. The Act confers no authority upon the Commis-
sion to require carriers to accord milling-in-transit
privileges.
Diamond Mills vs. Boston cC- M. R. R. Co., 9 I. C.
C. Rep., 311 (1902).
HAS NO AUTHORITY TO GRANT PRIVILEGE CORRESPONDING
TO MILLING IN TRANSIT PRIVILEGE.
22. The Commission has no authority to require the
defendant to concede the privilege sought for, corre-
sponding to that of "milling in transit."
Creivs vs. Richmond t(- D. R. R. Co., 1 1. C. C. Rep.,
703 (1888).
—12—
HAS AUTHORITY TO REMOVE UxNJUST DISCRIMINATION IN
TRANSIT PRIVILEGES.
23. However, there can be no question as to the right
and power of the Commission to order the removal of
an unjust discrimination in application of such a priv-
ilege and to prescribe such reasonable rates and regu-
lations as will effect such removal.
Douglas d Co. vs. 0. R. I. tC- P. Rwy. Co. et al., 16
L C. C. Rep., 232 (1909).
WHEN RECONSIGNMENT CHARGE IS WITHIN JURISDICTION.
24 . The validity of all charges for services rendered in
connection with interstate transportation is vested
exclusively in the Interstate Commerce Commission
and the courts of the United States, and the validity
of the reconsignment charge for transferring freight
brought into the State by a railroad running from
without the State and there transferred to another
line, or after its delivery on a hold track to the con-
signee elsewhere in the city as directed by the express
provision of the Interstate Commerce Act, is to be
determined by such Federal authority and not by the
State courts, that quo warranto would not lie to pre-
vent the carrier from making a charge for such service.
The State Ex Inf. Croio, Attorney General vs.
A. T. cC- S. F. Rwy., 176 Mo., 687; 75 S. W.,
776; 63 L. R. A., 761 (1903).
—13—
WHEN RECONSIGNMENT CHARGE IS NOT WITHIN JURISDIC-
TION.
25 . When a carload of hay destined to East St. Louis
is delivered by the carrier at a warehouse designated
by the shipper or consignee prior to arrival in that
city, or to the proper switching road, or is placed upon
the team track of the carrier, if no specific delivery is
named, the car has been properly delivered and the
carrier may insist that the consignee shall accept such
delivery and in case the consignee intercepts and sells
the carload while upon a hold track, after arrival in
East St. Louis, but before such delivery, he thereby
accepts delivery. If the consignee, instead of remov-
ing the bay from the car so delivered, sells it to another
party, and a carrier, upon an order of the original con-
signee or of his customer, moves the car to such cus-
tomer's storehouse in East St. Louis, that is a new
and independent service or reconsignment performed
entirely within the State of Illinois, of which the In-
terstate Commerce Commission has no jurisdiction.
The Commission, however, consider that Congress
might, directly or through the Commission, require
that shippers shall be allowed a certain time after
arrival in East St. Louis to designate the point of de-
livery for interstate shipments, and that such delivery
be made accordingly.
St. Louis Hay & Grain Co. vs. C. B. tC- Q. Rwy. Co.
et a/., 11 L C. C. Rep., 82 (1905).
14—
INTENTION TO RECONSIGN WITHIN THE STATE AFTER DE-
LIVERY EXEMPT FROM JURISDICTION OF COMMISSION.
26. The intention or purpose of the ovrners of an
interstate shipment of a carload of grain to forward
such car from the original terminal point to another
point in the same state does not make the shipment be-
tween such two points, when performed by a connect-
ing carrier to which the car was delivered by the orig-
inal terminal carrier in obedience to the instructions
of the owner, an interstate one, and as such, is exempt
from the regulations of the Eailroad Commission.
Gulf Colorado 6 8. F. Rivjj. Co. vs. Texas, 204 U.
S., 403; 51 L. ed., 540; 27 Sup. Ct. Rep., 360,
affirming 97 Texas, 274, 78 S. W., 495 (1907).
JURISDICTION OVER COMPRESSION OF COTTON.
27 . The question of compression of cotton in transit is
one with which railroads may deal entirely as they see
fit, and without respect to the effect which its prac-
tices have upon the transportation of cotton. Either
the carrier must publish a rate upon uncompressed
cotton and another rate upon compressed cotton and
divorce itself entirely from the matter of compression,
or else such compression as is given by the railroad be-
comes subject to the jurisdiction of the Commission.
Muskogee Commercial Cluh -r^;. M. K. tG '/'. Rwy.
Co., 12 I. C. C. Eep., 312 (1907).
—li
JURISDICTION TO AWARD DAMAGES FOR UNLAWFUL DIS-
CRIMINATION IN ELEVATOR ALLOWANCES.
28. Complaint alleged unjust tliscriniination aris-
ing!: from the practice of defendant of allowing free
commercial elevation at certain places and refusing
the same, or a money compensation therefor, at Atchin-
son. Based on this allegation indirect damages to a
large amount were claimed as well as an attorney's
fee. The evidence was that the complainant actually
elevated a certain amount of grain, moving in inter-
state commerce over the defendant's lines. The Com-
mission has condemned commercial elevation as prac-
ticed by the carriers, or money compensation therefor,
Peaveij case, 14 I. C. C. Rep., 315; at the time of the
alleged discrimination, however, % of a cent per 100
pounds was considered a proper allowance in lieu of
such elevation. Upon consideration of all the facts.
Held:
The Commission has jurisdiction, without regard
to the amount in controversy, to award damages when-
ever they arise under under the act, excepting in those
cases where the act itself names another forum.
While the Abilene casc^ 20-1 U. S., 426, settles the
primary jurisdiction of this Commission to determine
the reasonableness or unreasonableness of an estab-
lished rate and to award reparation predicated upon
the unreasonableness of an established rate, the Com-
mission's jurisdiction is primary al-^o in nuitters of
unjust discrimination, undue or unreasonable prefer-
ence or advantage, undue or unreasonable prejudice or
-16—
disadvantage, and, generally, whenever the Commis-
sion may order the carrier to cease and desist from
violations of the act.
The Commission in passing upon the reasonable-
ness or unreasonableness of a rate, acts as an adminis-
trative body having quasi judicial functions; when it
determines what the rate should have been and shall
be in the future it exercises certain legislative func-
tions ; when it computes the damages or reparation due
the shipper by reason of the enforcement and collec-
tion of a rate unreasonable to the extent that it ex-
ceeds a rate which is declared to be reasonable, there
is a mere mathematical determination of the damages
the shipper should receive. Reparation or damages,
therefore, in all matters which concern rates are re-
duced, after the Commission has determined what the
reasonable rate should have been, to the simplicity of
a mathematical calculation; elements of conjecture,
speculation, and inference are entirely eliminated.
In matters of discrimination, however, of undue pref-
erence, prejudice, or disadvantage, a different field is
entered, where the services of a jury may be necessary
not only by reason of the seventh amendment to the
Constitution, but by the poor nature of the subject
matter itself. It may be proper, and the Commission
has so considered in manj- instances, to award money
damages in cases of the kind just described, and such
awards have been complied with by the carriers, but
the proofs to support such awards should be very clear
and exact; they should be free from a surmise and
conjecture.
—17—
Reparation, based upon the amount of grain actu-
ally elevated, allowed in this case because it is found
that the free commercial elevation afforded shippers
elsewhere discriminated against Atchison and affected
the rates paid by the complainant to the exact extent
of % of a cent per 100 pounds.
The Commission does not assess costs; nor does
it allow attorney's fees ; nor does its order for the pay-
ment of money have the effect of an order, decree, or
judgment of a court; nor are such orders enforceable
by process ; nor do they become liens upon the property
of a defendant.
S. R. Washei^ Grain Company vs. Missouri Pacific
Raihoay Company, 15 I. C. C. Rep., 147
(1909). See /. C. C. vs. Dijfenhaugh et al,
222 U. S., 42, infra.
REPARATION FOR UNLAWFUL DISCRIMINATION AWARDED IN
ELEVATOR ALLOWANCES.
29 . Reparation awarded because of undue discrimina-
tion in favor of complainant's competitors in elevator
allowances made by defendant at Oiliaha and Council
Bluffs.
Merriam cC Holmquist vs. Union Pacific Railroad
Company, 16 I. C. C. Rep., 337 (1909).
SUPREME COURT RULES ALLOWANCES FOR ELEVATION ARE
UNDER JURISDICTION OF THE COMMISSION.
30. The ground on which the payment to owners of
grain finally was held to be a rebate had been consid-
—18—
ered from the beginning, and, as we have said, had
been brought to the mind of Congress. It is that
when the owners of the elevators own the grain put
into them they have the opportunity to perform other
services to the grain in the way of treatment, or clean-
ing, clipping, and mLxing the grain, which, althougli
not included under the term elevation, or paid for by
the railroad, it is an advantage to them to be able to
perform at the same time. This advantage is thought
to create an undue preference and unjust discrimina-
tion. Of course the opportunities for fraud are ad-
verted to, but the ground of the decision is that even
an honest payment of the bare cost of elevating grain
in transit gives an undue advantage if the elevator
owner also owns the grain. xVs was pointed out by the
court below, the final order is confined to grain that
has been treated, weighed, inspected, or mixed.
We agree Vv'ith the court below that this decision
is erroneous in its concejDtion of the grounds on which
under the statute an advantage may be pronounced
undue, and in its assumption that Congress has left
the matter open by merely permissive words. The
principle as to advantages is recognized in Pemi Refin-
ing Co. vs. Western Neiv York d Pennsylvania R. R.
Co., 208 U. S., 208, 221. The law does not attempt to
equalize fortune, opportunities or abilities. On the
contrary, the xict of Congress in terms contemplates
that if the carrier receives services from an owner of
property transported, or uses instrumentalities fur-
nished by the latter, he shall pay for them. That is
taken for granted in S 15; the only restriction being
—19—
that he shall par no more than is reasonable, and the
only permissive element being that the Commission
may determine the maximum in case there is complaint
(or, now, upon its own motion. Act of June 18, 1910,
c. 309, 12, 36 Stat., 539, 553). An the carrier is re-
quired to furnish this part of the transportation upon
request he could not be required to do it at his own
expense, and there is nothing to prevent his hiring the
instrumentality instead of owning it. In this case
there is no complaint that the rate out of which the
allowance is made is unreasonable and it is admitted
that three-quarters of a cent barely would pay the cost
of the service rendered without any reasonable profit
to Peavey & Co. for the work. See Interstate Com-
merce Commission vs. Stickney, 215 TJ. S., 98.
Interstate Commerce Commission vs. Diffcnhrniqh
et al.,222 U. S., 42 (1911).
AMENDMENT OF 1906 GAVE THE COMxMISSION PLENARY POW-
ERS OVER TRANSIT.
31. The powers of the Commission were much en-
larged by the Amendment of 190G and by the subse-
quent amendment of 1910, the jurisdiction of the body
to deal with matters of this kind was further ampli-
fied. At present by terms of the 15th section.
"The Commission is hereby authorized and
empowered to determine and prescribe what will
be the just and reasonable individual or joint rate
or rates, charge or charges to be thereafter ob-
served in such case as a maximum to be charged,
-20-
aiid what individual or joint classification, regu-
lation or practice is just, fair and reasonable to
be thereafter allowed."
It is impossible to compare the 15th Section as it
stood previous to the amendment of 190G, with the
same section today, without reaching the conclusion
that it was the intention of Congress to invest this
Commission witli full authority over interstate rates
and w^hatever regulations or practices entered into
those rates and determined their value and availabil-
ity to individuals or communities.
Transit is a practice of universal prevalence.
There is not probably a railroad in the whole United
States handling any considerable amount of business
into whose tariffs it is not incorporated. There is not
a State Commission with authority to establish rates
which does not exercise, as part of that authority, the
right to prescribe and enforce proper transit privi-
leges. This Commission cannot, as tariffs are now
constructed and as railroad business is now conducted,
properly supervise and regulate the interstate rates
and practices of this country without authority over
transit. In th(i Diamond Mills case we said :
"A complete system of Interstate Railway
Regulations would probably give the regulating
body authority to determine when privileges of
this kind should be accorded and upon what
terms, for they all enter into and are really a part
of the rate."
-21-
While the Commission has, since the amendment
of 190G, frequently followed the cases which were de-
cided previously to that date, in no case have we de-
clined to establish a transit privilege where the facts
showed that the establishment of that privilege was
required. Upon a further consideration of that sub-
ject we hold that transit is a practice or regulation
included within the provision of the loth Section, over
which this Commission has jurisdiction, and that we
may, in a case like this require carriers to accord that
privilege.
Railroad Commission of Oregon — National Wool
Growers Association vs. Oregon Short Line
R. R. Co. et ah, 23 I. C. C. Rep., 151 (1912).
MAY REQUIRE ACCOUNTING OF INTERSTATE AND INTRA-
STATE TRANSIT AND NON-TRANSIT TONNAGE.
32. As we said in the Wool case, supra, it is impossi-
ble to compare the 15th Section as it stood prior to the
amendment of 1906, with the same section today with-
out reaching the conclusion that it was the intention
of Congress to invest this Commission with full author-
ity over interstate rates, and all regulations or prac-
tices entering into those rates and determining their
value and availability to individuals or communities.
As to their reasonableness or discriminatory effect
transit privileges, and all rules or regulations in con-
nection therewith, or subject to the regulating author-
ity delegated by the Congress to this Commission, and
in the exercise of that authority rules and regulations
—22—
susceptible of possible discriminatory or other unlaw-
ful application may be condemned, and other rules
and regulations prescribed, and to this end we may
require a strict accounting, not only of interstate tran-
sit and non-transit tonnage, but local intrastate ton-
nage as well. /. C. C. vs. Goodrich Transit Co., 224
U. S., 194, decided April 1st, 1912.
The Transit Case, 24 I. C. C. Eep., 340 (1912).
—23-
IV. ALLOWANCE OF PRIVILEGE.
ALLOWANCE DEPENDS UPON FACTS IN PARTICULAR CASE.
33. Whether the principle of milling in transit may
be extended to a particular case will depend largely
upon the facts.
Central Yelloio Pine Assn. vs. Yickshurg, S. d P.
Rd. Co. ct al, 10 L C. C. Rep., 193 (1904).
MILLING IN TRANSIT IS A PRIVILEGE NOT A RIGHT.
84 . Milling in transit is a privilege which is frequent-
ly accorded by carriers under their through rates on
grain from points of origin to the ultimate destination.
But shippers are not entitled as a matter of right to
mill their grain in transit and forward the product
under the through rates.
Diamond MUls Co. vs. B. d M. R. R., 9 I. C. C.
Rep., 311 (1902).
Purposes for which allowed : *
grading and sorting of merchandise.
35. The carrier may, as a part of a contract for
through shipment, allow merchandise to be stopped
*See also paragraphs Numbers 3, 4, 7. 8, 9, to, ii and 12 pertaining to al-
lowance of privilege on cotton, flour, lumber, live stock, grain, structural steel,
wool and corn.
—24--
off in transit for the purpose of undergoing treatment,
such as grading, sorting, etc.
Re Alleged Unlatoful Rates and Practices in
Transportation of Cotton, 8 I. C. C. Rep., 121
(1899).
CLEANING AND SACKING OF GRAIN.
36. A rule that provides that grain shipped through
from point of origin to point of final destination may
be stopped at an intermediate point for cleaning, sack-
ing or other legitimate purpose, the shipment after-
wards carrying a proportional or balance of a through
rate, is not unlawful.
Re Rates and Practices of Mobile d- 0. Rd. Co.,
9 I. C. C. Rep., 373 (1903).
ELEVATION.
37. It is clear thai the law recognizes elevation as a
facility which a carrier may provide for the benefit of
its shippers if it finds it to its interest to do so as an
inducement for shippers to send their traffic over its
line.
In the Matter of AUoivance to Elevators, lU I. C.
C. Rep., 86 (1907).
COMPRESSION OF COTTON.
38. The complaint alleges that the Traders' Compress
Co. impose certain charges for applying owners' or
—25—
shippers' to cotton bales in their compression and for
storage on cotton remaining in the compress at con-
centration points after the expiration of 15 days, and
that every service performed in connection with the
cotton from the point of origin to destination, includ-
ing the services so charged for by the Compress Com-
pany, are included in the through rate, and an obliga-
tion rests upon the carriers to protect the owners or
shippers against such charges; Held, That the facts
shown do not justify any order against defendant car-
riers ; that the carriers have the right to compress cot-
ton in transit; that they have the right to grant or al-
low shippers or owners the privilege of concentrating
uncompressed cotton at designated compresses on their
lines for such treatment as such shippers or owners
may desire to give, with the right of such shipper or
owner to deliver the cotton back to the carriers for
transportation to interstate or foreign destinations at
the through rate from points of origin.
Anderson Clayton cC- Co. et al. vs. C. R. I. & P.
Rwy. Co. et al., 18 I. C. C. Rep., 340 (1910).
TO MILL OWNER WHO CONTROLS CONNECTING ROAD.
39. Carriers engaged in transporting lumber from
Arkansas, Louisiana and Texas to Kansas City and
other western markets established joint through rates
with certain logging roads from points where the logs
were received, via points of connection where the logs
were milled, to destination mentioned. The logging
roads wore owned by the mill owners. While orig-
—26—
iiirtlly built for the purpose only of hauling logs from
the forests to the mills, they were engaged to a greater
or less extent in handling other traffic. Such roads
were allowed divisions of the through rate. Held,
That while the milling in transit privilege thus ac-
corded the mill owners was not unlawful, such hold-
ing extended the application of the milling in transit
principle to the extreme limit.
Central Yelloio Pine Assn. vs. Vickshurg 8. d P.
Rd. Co. et al., 10 I. C. C. Rep., 193 (1904).
CARRIER MAY LAWFULLY REFUSE TO ALLOW PRIVILEGE.
40. Shippers are not entitled as a matter of right to
mill grain in transit and forward the milled product
under the through rate in force on the grain from point
of origin to the place of ultimate destination.
Koch vs. P. R. R. et al., 10 I. C. C. Rep., 675
(1905).
41. Complainant, a miller at Detroit, Mich, brings
in wheat by water from Duluth, grinds it at Detroit,
and ships the product by all rail to various eastern
destinations. Upon complaint that defendants apply
from Detroit to these eastern destinations a rate on
wheat which has come to Detroit by water which is
less than the rate which they apply upon the flour
which the complainant has ground from similar wheat,
and al&o that defendants grant to millers located upon
their lines in case of this wheat the milling-in-transit
privilege; Held, That upon the facts disclosed by the
—27—
record and for the reasons given in the report the
complaint should be dismissed. Meeker, Joives, Jew-
ell Milling Co. vs. B. tG 0. R. R. Co., 14 I. C. C. Rep.,
356, cited and distinguished (1908).
David Stott vs. Mich. Central R. R. Co. et al, 18
I. C. C. Rep., 582 (1910).
TREATMENT OR RECONSIGNMENT IN TRANSIT A PRIVILEGE
NOT A RIGHT.
42. The stopping of a commodity in transit for the
purpose of treatment or reconsignment is in the na-
ture of a special privilege which the carrier may con-
cede, but which the shipper cannot demand as a mat-
ter of lawful right.
St. Louis nay cG Grain Co. vs. Mobile d 0. R. R.
et al., 11 I. C. C. Rep., 90 (1905).
RECONSIGNMENT A PRIVILEGE NOT A RIGHT.
43. The Commission has always regarded reconsign-
ment as a privilege, not a right to be demanded by
shippers, and has consistently refused to extend same
except to correct unjust discrimination.
Cedar Bill C. & C. et al. vs. C. d S. Rwi/. Co. et al,
16 I. C. C. Rep., 387 (1909).
ON ACID PHOSPHATE AND PHOSPHATE ROCK.
44 . The complainant asks for the same rates on phos-
phate rock and acid phosphate, for transit privileges,
and for reparation; Held, That acid phosphate is of
—28—
higher grade than the crude rock, and while the car-
riers may rate them together the Commission is not
prepared on this record to order such rating ; and that
complainant is not entitled either to transit privileges
or to reparation.
Bash Fertilizer Co. vs. Wahash R. R. Co. et nl, 18
I. C. C. Rep., 522 (1910).
MAY WITHHOLD PRIVILEGE FROM DIFFERENT PRODUCTS OF
SAME RAW MATERIAL.
45. There is of course a limit to the products which
can reasonably be included in the list of those which
will be transported at the raw material rate either
with or without a transit privilege. It might be rea-
sonable to withhold transit privileges from a product
that is essentially different from the raw material and
from the other products of the same raw material
which are accorded transit rates, as, for example, a
liquid product of grain; but it is clearly discrimina-
tory to single out one or more of several milled prod-
ucts of grain and withhold from it or them transit
privileges which is accorded at that or some other com-
petitive point to other milled products of grain of sub-
stantially similar character, value, and packing, and
which are transported under substantially the same
conditions, attended by substantially equal risks,
where there is competition between the millers of the
grain either in marketing their product or in securing
their material for milling.
Douglas & Co. vs. Chicago R. I. d P. Rtvy. Co. et
al, 16 I. C. C. Rep., 232 (1909).
-29—
AFTER LAPSE OF TWO YEARS CANNOT ORDER IT RESTORED
UNLESS RESTING UPON SOME LEGAL OBLIGATIONS.
46. Upon supplemental complaint allofdng that de-
fendants had cancelled certain transit privileges which
w^re established in compliance with the Commission's
decision in the ])i'ior case, certain tariffs were sus-
pended and investigation made. It appears that more
than two years have elapsed between the time of the
first decision and the filing of the supplemental com-
plaint; Held, upon the present record that the with-
drawal of the transit rates heretofore accorded does
not work undue preference or unjust discrimination.
A privilege, savoring as this does of a gratuity,
however valuable and beneficial and however difficult
of relinquishment, cannot as a matter of law, be con-
tinued by this Commission, unless the original grant-
ing of the privilege rested on some legal obligation
which under the law affords ground on which the Com-
mission could, as an original proposition, require that
it be granted, or, if discontinued, order it restored.
Supplemental complaint dismissed and orders sus-
pending tariff's vacated.
Douglas d Gompanij vs. C. R. I. tC- P. Rwy. Co.
et al., 21 I. C. C. Rep., 97 (1911).
PETITION FOR REHEARING IN ABOVE TWO CASES DENIED.
47. Complainant, Douglas & Co. filed a petition for
rehearing in the two cases — 16 I. C. C. Rep., 232,
—30—
supra; and 21 I. C. C. Rep., 97, supra; The Commis-
sion denied the petition on the ground that the de-
fendant had removed the discrimination subsequent
to the order in the original case, no issue being raised
in that case as to the reasonableness of the rate.
Neither vras the reasonableness of the rate in the issue
in the supplemental hearing — The only issues pre-
sented in the original and supplemental proceedings
have been disposed of. The reasonableness of rates
can not be considered except upon a proceeding which
properly put them in issue.
Douglas cG Company vs. C. R. I. d- P. Ricy. Co.
et al, 21 I. C. C. Rep., 541 (1911).
EXTENSION OF PRIVILEGE INTO NEW TERRITORY NOT GEN-
ERALLY ALLOWED.
48. Where proof respecting local conditions is meagre
and incomplete, the Commission will decline to make
a decision which in principle, would involve a general
extension of milling in transit privilege into territory
where such privileges had not before been allowed.
Koch vs. P. R. R. Co. ct ah, 10 I. C. C. Rep., 675
(1905).
EXTENSION OF PRIVILEGE INTO NEW TERRITORY TO BE CUR-
TAILED RATHER THAN EXTENDED.
49 . Omaha enjoys advantages under the carriers' tar-
iffs which Detroit regards herself as entitled to, but
the carriers which serve Omaha are not those which
—31—
serve Detroit. The Western carriers as a matter of
policy give Omaha a certain privilege which the East-
ern carriers as a matter of policy deny to Detroit.
This affects Detroit, no doubt, injuriously to some ex-
tent, but it is difficult to see how it can be remedied
(1) Because the carrying lines involved at the two
cities are not the same, and (2) because to uphold such
claim on the part of Detroit would justify, if not re-
quire, a wide extension of the privilege to other points.
If we give to Detroit a transit privilege, every other
point within Official Classification territory would
properly feel that it would be entitled to such privi-
lege. And instead of extending such privilege we be-
lieve it should be our policy to curtail them to as great
a degree as may be consistent with the industrial de-
velopment of the country, for our investigations show
that they are the source and aggravating cause of many
of the most serious complaints brought to our notice.
We feel that we are compelled, therefore, upon princi-
ple to deny the petition for transit privilege at Detroit.
Traugott Schmidt & Sons vs. Mich. Central R. R.
Co. et al, 19 I. C. C. Rep., 535 (1910).
— ^3-
V. AGREEMENT BETWEEN CONNECTING CARRIERS
FOR ALLOWANCE OF PRIVILEGE.
CARRIER MAY REFUSE TO BECOME PARTY.
50. Since a through route and through rate are mat-
ters of contract between the carriers, it follows that
any one of such carriers may lawfully decline to be-
come a party to a milling in transit arrangement, un-
less the terms and conditions thereof are satisfactory
to it.
Diamond Mills vs. Boston d Maine R. R. Co., 9 I.
C. C. Rep., 311 (1902).
CARRIERS MAY AGREE WITH LOGGING ROADS FOR PRIVILEGE
TO INDUSTRIES THEREON.
51. Carriers engaged in transporting lumber from
Arkansas, Louisiana and Texas to Kansas City and
other western markets established joint through rates
with certain logging roads from points where the logs
were received, via points of connection where the logs
were milled, to destination mentioned. The logging
roads were owned by the mill owners. While origi-
nally built for the purpose only of hauling logs from
the forests to the mills, they were engaged to a greater
—34—
or less extent in handling other traffic. Such roads
were allowed divisions of the through rate. Held,
That while the miling in transit privilege thus ac-
corded the mill owners was not unlawful, such hold-
ing extended the application of the milling in transit
principle to the extreme limit.
Central Yellow Pine Assn. vs. Yickshurg S. d P.
R. R. Co. et al, 10 I. C. C. Kep., 193 (1904).
-35—
VI. CONTRACTUAL RELATION BETWEEN SHIPPER
AND CARRIER.
ABROGATION OF PRIVILEGE WOULD CONFISCATE PROPERTY.
52. To abropite these privileges would be to confis-
cate thousands and probably millions of dollars in
value, be rendering worthless industrial plants, which
have been constructed upon the faith of their contin-
uation.
Central Yelloiv Pine Assn. vs. Vickshurg 8. d- P.
R. R. Co. et al, 10 I. C. C. Rep., 193 (1901).
CONTRACT FOR ALLOWANCE OF PRIVILEGE IS ENFORCEABLE.
53 . So long as there is no unjust discrimination, and
no stipulation in the contract forbidding the carrier
extending similar rates to all other shippers similarly
situated, there is no express provision of law, and no
sound reason arising out of public policy, which pro-
hibits a carrier entering into a fair and equitable mill-
ing in transit arrangement with an industry upon its
line; and where such a contract is entered into, an
action will lie in favor of the shipper for a breach
thereof.
Laurel Cotton Mills vs. Gulf d- S. I. R. R. Co., S4
Miss., 339, 37 So. 131, 66 L. R. A., 453 (1901).
— SB-
CARRIER CANNOT ALTER RELATION WHEN ONCE ESTAB-
LISHED.
54 . There is no inflexible requirement that rates upon
grain and the products of the grain should be, under
all circumstances, the same, but rather that carriers
may, in just regard for their own interest or to meet
special conditions, vary those rates within narrow lim-
its. When once the relation has been established, bus-
iness developed, and money expended upon the strength
of it, then the carrier cannot, in the absence of some
sufficient reason, change that relation ; nor would this
Commission direct a change.
Howard Mills Company vs. Missouri Pacific Rail-
way Co., 12 I. C. C. Eep., 258 (1907).
—37-
VII. PUBLICATION CONDITION PRECEDENT TO
LEGALITY.
TERMS OF PRIVILEGE SHOULD BE STATED IN TARIFF.
55. The privilege of permitting merchandise, carried
under a contract for through shipment, to be stopped
in transit for the purpose of treatment, enters into and
becomes a part of the service covered by the through
rate, and should be specified in the published tarilf.
Re Alleged Unlawful Rates and Rractices in
Transportation of Cotton, 8 I. C. C. Rep., 121
(1899).
56. Where stop-over privileges are granted for any
purpose, all the facts and circumstances connected
therewith should be clearh' stated in the published
tariff, so that the public generally may enjoy their
benefits.
Re Rates and Practices of Mobile <& Ohio R. R. Co.,
9 L C. C. Rep., 373 (1903).
57. Where the privilege of milling in transit is
granted to a particular commodity, the fact should be
plainly stated upon the tariff, together with the con-
ditions upon which the privilege will be allowed.
Central Yellow Pine Assn. rs. Vicksburg S. cC- P.
R. R. Co. et al, 10 L C. C. Rep., 193 (1004).
—38—
58. Carriers engaged in transporting lumber from
Arkansas, Louisiana and Texas to Kansas City and
other western markets established joint through rates
with certain logging roads from points where the logs
were received, via points of connection where the logs
were milled, to destinations mentioned. The logging
roads were owned by the mill owners, and were ac-
corded divisions of the through rate for handling the
logs to tha mill. Held, That the tariffs should state
that the transportation provided for covered carriage
of the logs to the mill and the lumber from the mill ;
that since the divisions were allowed for the benefit of
the mill, they also should be named in the tariffs.
Ihid.
PUBLICATION OF PRIVILEGE REQUIRED BY SECTION 6 OF THE
ACT AMENDED.
59. Section 6 (Amended March 2, 1889. Following
section substituted June 29, 1906. Amended June 18,
1910). "That every common carrier subject to the
provisions of this act shall file with the Commission
created by this act and print and keep open to public
inspection schedules showing all the rates, fares, and
charges for transportation between different * * *
The schedules printed as aforesaid by any such
common carrier shall plainly state the places between
which property and passengers will be carried, and
shall contain the classification of freight in force, and
shall also state separately all terminal charges, stor-
age charges, icing charges, and all other charges with
-39-
I
^
the Commission may require, all privileges or facili-
ties granted or allowed and any rules or regulations
which in any wise change, affect, or determine any
part of tlie aggregate of such aforesaid rat«s, fares,
and charges, or the value of the service rendered to
the passenger, shipper or consignee."
In the amendments of 1906, the section was sub-
stantially rewritten. The important changes were,
Firsts the requirement of the same publication of the
joint rate as of the separate rates. Theretofore the
measure of publicity given to joint rates was pre-
scribed by general order of the Commission. Second,
change in the rates, either separate or joint, was pro-
hibited except after thirty days' notice, while before
the amendment, ten days' notice was required of an
increase and three days' notice of a decrease. Third,
the requirement of a separate printing and posting
not only of terminal charges and all other charges
which the Commission might require, and all privi-
leges or facilities granted or allowed. Fourth, the
requirement as to posting and notice could be modified
on good cause shown.
Judson on Interstate Commerce, Par. 305.
PUBLICATION OF ALL TRANSIT PRIVILEGES SUBSEQUENTLY
ORDERED BY THE COMMISSION.
60. Each carrier shall publish, with proper I. C. C.
numbers, post, and file separate tariffs which shall
contain in clear, plain, and specific form and terms all
the terminal charges and all allowances, such as arbi-
—40—
traries, switching, icing, storage, elevation, diversion,
reconsignment, transit privileges^ and car service, to-
gether with all other privileges, charges, and rules,
which in any way increase or decrease the amount to
be paid on any shipment as stated in the tariff which
contains the rate applicable to such shipment, or which
increase or decrease the value of the service to the
shipper. Such tariffs must stipulate clearly the ex-
tent of such privilege and the charges connected there-
with, and shall also state whether or not the rate pub-
lished by the initial carrier from the point of origin
to ultimate destination will apply. If the through
rate does apply it must be as of the date of shipment
from point of origin.
If such privilege is granted or charge is made in
connection with the rate under which the shipment
moves from point of origin, the initial carrier's tariff
which contains such rate must also show the privilege
or the charges or must state the shipments thereunder
are entitled to such privileges and subject to such
charges according to the tariffs of the carriers grant-
ing the privileges or performing the services, as "law-
fully on file with the Interstate Commerce Commis
sion."
Rule 10 I. C. C. Tariff Circular 18- A. (1906).
ACT REQUIRES PUBLICATION OF PRIVILEGE.
61. The Act requires that the established schedules
shall show "all privileges or facilities granted or al-
lowed and any rules or regulations which in any wise
effect. * » * l\^^. value of the services rendered to
the passenger, shipper, or consignee." Held, That the
privilege, such as milling, sorting and mixing or blend-
ing freight in transit, materially affect the value of
the shipper and the cost to the carrier of the transpor-
tation, they should be set forth in the published tariff.
Ibid.
FAILURE TO PUBLISH CAUSE FOR REFUSAL OF REPARATION TO
INJURED PARTY IN UNLAWFUL CONTRACT.
62. Defendant I. I. & I. Railroad, agreed with com-
plainant for a stated period to permit live stock,
shipped under through rates from points in Illinois
to eastern destinations, to be unloaded at its stock
pens at West Kankakee, 111., where the stock was fed,
watered, sorted and reloaded into carloads suitable
for the market to which consigned. No mention of the
privilege was included in the published tariff. Before
expiration of the period fixed in the agreement, the
agreement was canceled by defendant. On claim by
complainant for reparation: Held, That as an order
for reparation in such a case would be to countenance
and enforce contract between the parties which they
had no right to make or perform, since no transit priv-
ilege of any kind were included in the tariffs, the claim
for reparation should be denied,
Shiel d Co. vs. III. Central R. R. Co. et al., 12 I.
C. C. Rep., 210 (1907).
—42—
PRIVILEGES GRANTED WITHOUT PUBLICATION IN VIOLA-
TION OF THE LAW.
63. All privileges accorded on shipments in transit
and which affect the value of the service performed
mnst be published in the tariffs, and reparation based
on breach of contract for a privilege which was not
mentioned in the tariffs must be denied the shipj)er
because its allowance without publication was in vio-
lation of law.
lUd.
CAN NOT BE ENFORCED AGAINST CARRIER IN ABSENCE OF
PUBLISHED TARIFFS.
64. The privilege of stopping hogs in transit shipped
from Western points to the east in order that they may
be sorted and recon signed under the through rate from
point of origin cannot be enforced against carriers in
favor of any single point or shipper in the absence of
lawfully established tariffs making such privilege open
to the public at large.
Rule n Con. Rul. Bui. No. 5 (1908).
—43—
VIII. CHARGES FOR ALLOWANCE OF PRIVILEGE.
EXTRA COMPENSATION FOR PERMITTING MILLING IN TRANSIT.
65. The right of milling in transit is a special privi-
lege for which the carrier may demand extra compen-
sation, and which it may permit only under certain
terms and conditions.
Diamond Mills vs. Boston d M. R. R. Co., 9 I. C.
C. Rep., 311 (1902).
EXTRA COMPENSATION FOR TREATMENT AND RECONSIGNMENT
PRIVILEGES.
66. The stopping of a commodity in transit for the
purpose of treatment or reconsignment is in the nature
of a special privilege which the carrier may concede,
* * * * and may exact a reasonable charge for
such privilege.
8t. Louis Hay d Grain Co. vs. M. d 0. R. R. Co.,
11 I. C. C. Rep., 90 (1905), citing Diamond
Mills Co. vs. Boston d M. R. R. Co., supra.
CHARGE SHOULD NOT EXCEED ACTUAL COST (REVERSED).
67. Whore additional service is required of a carrier
in handling commodities which are stopped in transit,
—44—
for the purpose of treatment or reconsignment, the
charge therefor should not be more than the actual
cost to the carrier.
St. Louis Hay c€ Grain Co. vs. M. cG O. R. R. Co.
et al, 11 I. C. C. Kep., 90 (1905) Reversed
infra.
ENTITLED TO COMPENSATION IN ADDITION TO ACTUAL COST.
68. The Supreme Court later decided that a carrier
which is at service and expense in stopping goods in
transit for inspection and reloading for the benefit of
the shipper is entitled to compensation in addition to
the actual expenses incurred.
Southern Rwy. Co. vs. St. Louis Hay & Grain Co.,
214 U. S., 297; 53 L. ed. 1004, 29 Sup. Ct.,
678, reversing 153 Fed. Rep., 728, 82 C. C. A.,
614 and 149 Fed. Rep., 609, affirming order
of Commission in St. Louis Hay & Grain Co.
vs. M. d 0. R. R. et al, 11 I. C. C. Rep., 90
(1909).
In reversing the lower courts the case was re-
manded to the Circuit Court with instructions to send
the matter back to the Commission for further in-
vestigation and report. The Supreme Court did not
determine what would be a fair and reasonable charge
for the reason that the testimony had not been pre-
served in the record.
CHARGE FOR PRIVILEGE SHOUD BE IN PROPORTION TO SERVICE.
69. A carrier is not justified in making the same
charge for every reconsigimient. The privilege of re-
consignment is a thing of value to the shipper and of
expense to the carrier; therefore a charge may be
made, but the value and extent of that service vary
and the charge should be in proportion to the service.
Beekman Lumber Co. vs. K. C. So. Ricy. Co., 17
I. C. C. Rep., 86 (1909).
PARTICULAR FACTS OF EACH CASE GOVERN.
70. A charge that would be reasonable for a diversion
or change of destination of a shipment, might be un-
reasonable when applied to a single change in con-
signee which did no! involve a change in the destina-
tion or more expense in delivery.
Rule Ih, Tarijf Circular 18-A.
CARRIER NOT REQUIRED TO PERFORxM BACK HAUL WITHOUT
REASONABLE COMPENSATION THEREFOR.
71. The direct route from the wheat field on the line
of the Frisco in Oklahoma to points on the Cotton Belt
in Texas is through their junction at Sherman. The
complainant's flour mill at Celina is 28 miles south of
Sherman; the haul of its wheat to Celina and of its
flour back lo Sherman therefore involves an extra ser-
vice of 56 miles in order to get the benefit of the
—46—
through milling in transit rate applicable via Sher-
man ; Held, That the defendants cannot be required to
perform this back haul free of charge and that the
present tariff rates for back haul and out of line ser-
vice are not unreasonable.
Celina Mill d Elevator Co. vs. St. Louis S-W. Rivy.
Co. et al., 15 I. C. C. Eep., 138 (1909).
CHARGES FOR THE TRANSIT PRIVILEGE SHOULD BE NON-
DISCRIMINATORY.
72. On complaint that concentration charges, pro-
vided for by addition to local rates that had been main-
tained for a substantial period as reasonable and sat-
isfactory, and forfeited if outbound shipments are
not tendered to the same carrier that transported the
inbound shipments, are unreasonable and unjustly dis-
criminatory; Held, That while the Commission does
not condemn reasonable, non-discriminatory, and
properly applied transit rates and privileges, or a rea-
sonable and non-discriminatory charge for the addi-
tional service performed in connection with a transit
privilege, it is unreasonable for carriers to add any-
thing to their reasonable rates as a penalty to be for-
feited if the outbound shipment is not delivered to a
certain carrier ; and Held, further, That it is unjustly
discriminatory for carriers to assess concentration
charges at competitive points different from or greater
than they contemporaneously assess at non-competi-
tive points.
Red River Oil Co. et al. vs. Texas cG Pacific Rwy.
Co. et ah, 23 I. C. C. Rep., 438 (1912).
—47—
REASONABLE RECONSIGNMENT CHARGE WHERE ONLY NAME
OF CONSIGNEE IS CHANGED.
73. One dollar per car is a reasonable reconsignment
charge for the service where only the name of the con-
signee is changed and there is no change in destina-
tion.
Beehman Lumber Co., supra.
REASONABLE RECONSIGNMENT CHARGE WHERE DESTINA-
TION IS CHANGED.
74. The Commission has held that |2.00 per car is a
reasonable reconsignment charge for the privilege of
changing the destination of the shipment, when the
change was made before or immediately after the
arrival of the car at the first destination, and when
no back haul or out of line haul is required.
Cedar Hill C. tG C. Co. vs. C. cG S. Rivy. Co. et al.,
15 I. C. C. Kep., 546 (1909) ; see also Board of Trade
of Kansas City vs. C. B. d Q. Rwy. Co. et al., 12 I. C.
C. Rep., 173 (1907), where |2.00 per car was held not
to be an unreasonable charge for the reconsignment
of grain in view of the extra expense incurred and of
the extra service performed by the railroad.
ILLUSTRATIONS OF REASONABLE CHARGES FOR RECONSIGNING.
75. Rate of 2 cents per 100 pounds for the service of
defendant carriers in connection with reconsignment
at East St. Louis, 111., of hay in carloads originating
—48—
at points North, East and West thereof and destined
to Southeastern points, at the time said service was
rendered found unjust and unreasonable to the ex-
tent that same exceeded IVoC per 100 pounds. Repar-
ation rewarded.
St. Louis Hay d Grain Co. vs. Mobile & Ohio
Railroad Co. ct al.
J. R. Lucas & Company vs. Louisville <& Nashville
Railroad Company; Bartlett Commission
Company vs. Illinois Central Railroad Com-
pa7iy et al., 19 I. C. C. Eep., 533 (1910). See
also Wool case, 23 I. C. C. Kep., 151 (1912),
fixing 2y2C per 100 lbs. as reasonable for the
privilege, and G. M. Spiegle d Co. vs. South-
ern Railway, 25 I. C. C. Rep., 71 (1912), fix-
ing li/>c as reasonable for the privilege on
lumber.
CLAIM FOR REFUND RKCONSIGNAIENT CHARGE DUE TO
DEFECTIVE TARIFF DISMISSED.
76. During the months of September xnd October,
1907, when the shipments in question moved, the reg-
ulations of the Commission did not reqidre, as do the
present regulations in Rule 10 of Tariff Circular 15-A,
that a tariff naming local rates into a reconsigning
point must either specifically show th3 reconsigning
privilege and charge therefor or specifically refer to the
separate tariff in which the privilege and charge are
published. Therefore, Held, That complainant de-
—49—
mand for a rofnnd of a recoiisign merit charge of |2
per car on the shipments named in the complaint, on
the ground that the defendants' tariff naming the
local rates was defective in that respect, is without
merits and must be dismissed.
Kansas City Hay Company vs. St. Louis & San
Francisco Railroad Co., 14 I. C. C. Rep.,
631 (1908).
POWERS OF CO:\[MISSIOX TO RESTRICT ALLOWANCES FOR
ELEVATTOX TO SHIPPER.
77. The Interstate Commerce Commission cannot
make the allowance by a carrier to the owner of an
elevator of the cost of the elevation in transit of grain
in which he has an interest, conditional upon his fail-
ure to use the opportunity afforded during the pro-
cess of elevation to treat, weigh, inspect, or mix the
grain, since such allowance cannot be deemed an un-
due preference or discrimination forbidden by the act
to regulate commerce, in view of the provisions of the
amendatory act of June 29, 1906 (34 Stat, at L. 584,
chap. 3591, U. S. Comp. Stat. Supp., 1909, p. 1149),
recognizing that services in transportation, rendered
by an owner of the property transported, are to be
paid for by the carrier.
Confining the allowance by a carrier to the owner
of an elevator for elevating grain in transit in which
he has an interest, to such grain as shall be reshipped
—50—
within ten days, is within the power of the Interstate
Commerce Commission.
Interstate Commerce Commission vs. II. J. Diff-
enhaugh et al.; Interstate Commerce Com-
mission vs. F. H. Peavey d Co.; Union Pacific
Railroad Company vs. F. H. Peavey d Co.,
222 U. S. 42, 50 L. ed. (1911).
COMMISSION RECOMMENDS ELEVATION ALLOWANCES.
78. It appearing that prior proceedings in regard to
these elevation allowances comprehended Missouri
River points only, this proceeding v/as brought so as
to include Ohio River points and points generally
north of the Ohio River and east of the Missouri River.
One-fourth of one cent per bushel held to be fair
compensation for transportation elevation at the
points in question, but for both transportation eleva-
tion and commercial elevation at such points a fair
compensation would not be less than three-fourths of
one cent per 100 pounds.
Following scale of charges for commercial ele-
vation recommended :
For storing, one-fourth cent per bushel for each
10 days or part thereof after the first 10 days.
For clipping, one-fourth cent per bushel.
For cleaning, one-fourth cent per bushel.
For mixing or turning, one-eighth cent per bushel.
—51 —
For sulphuring, one-eighth cent per bushel.
For drying, from 1 to V/^ cents per bushel.
For sacking, one-half cent per bushel (sacks and
strings to be furnished by owner of the grain).
flaking of any order in this matter is postponed
until reasonable opportunity has been given the par-
ties for an adjustment on the basis recommended.
Nothing in the testimony tends to convince the
Commission that transportation elevation cannot be
brought within the ten-day limit.
In the Matter of Elevation Allowances, 24 I. C.
C. Rep., 197 (1912).
DISTINCTION BETWEEN CHARGES FOR COMMERCIAL AND
TRANSPORTATION ELEVATION.
79. A railroad has no right under the pretext of a
transfer which it does not require, to furnish a grain
dealer commercial elevation or, what amounts to the
same thing, to pay through an elevation allowance for
the commercial elevation of his grain, and if it does
so it must accord the same privilege or make the same
payment to other persons and at other points.
Considering the Diffenbaugh & Updike cases to-
gether, as applied to the general subject of elevation
and transfer in transit, the Commission concludes that
it was the intention of the Supreme Court to hold
that whatever might be the case if a railroad saw fit
to confine its payment to elevation actually required
—^—
in the transportation of the grain, it must, when it
makes this allowance to one elevator under such cir-
cumstances as to give that elevator payment for com-
mercial elevation, extend the same privilege to all
other elevators similarly situated at that point.
Present orders in these cases struck off and new
orders entered requiring defendants not to exceed
three-fourths of one cent per 100 pounds in the pay-
ment of elevation or transfer allowances at the Mis-
souri River, and to confine that payment to grain ac-
tually passing through the elevators in ten days.
Traffic Bureau, Merchants' Exchange of St. Louis
vs. Chicago, Burlington & Quincij Railroad
Company et al., 22 I. C. C. Rep., 496 (1912).
—53—
IX. ABSORBING OR DIMINISHING LOCAL OR PRO-
PORTIONAL INBOUND RATE.
RATE "IN" CANNOT BE ABSORBED OR DIMINISHED BY "OUT"
RATE NOT IN EFFECT WHEN SHIPMENT MOVED.
80 . Where a shipment over a through route is stopped
at an intermediate point nnder some tariff privilege,
the local or proportional rate "in" cannot be ab-
sorbed, diminished or affected by any "out" rate not
in effect at the time when the traffic moves upon such
local or proportional rate.
Re Through Routes and Through Rates, 12 I. C.
C. Rep., 163 (1907).
/
-oi)-
X. DISCRIMINATION BETWEEN SHIPPERS.
CARRIER MUST NOT DISCRIMINATE.
81 . Although a carrier is under no legal obligation to
stop a commodity in transit for the purpose of treat-
ment or reconsignment, where it grants such privilege
it must not discriminate between shippers.
St. Louis Hay d Grain Co. vs. Mobile & Ohio R.
R. Co. et ah, 11 I. C. C. Rep., 90 (1905).
See also Meeker- J ones- Jewell Milling Com-
pany vs. B. d O. R. R. Co. et ah, 14 I. C. C.
Rep., 356.
PRIVILEGE, WHEN ALLOWED, MUST BE EXTENDED TO ALL
SHIPPERS ALIKE.
82. Defendant, the I. I. & I. R. R. agreed with com-
plainant for a stated period to permit live stock,
shipped under through rates from points in Illinois
to eastern destinations, to be unloaded at its stock
pens at TV^est Kankakee, 111., where the stock was fed,
watered, sorted and reloaded into carloads suitable
for the market to which consigned. Jleldy That the
method of thus sorting the through shipments was a
privilege like all transit privileges and should be ex-
tended to all shippers alike.
Shiel tt- Co. vs. III. Central R. R. Co. et al, 12 I. C.
C. Rep., 210 ( 1907 j . See also 14 I. C. C. Rep.,
356, supra.
—56—
PRIVILEGE WILL NOT BE ESTABLISHED OR EXTENDED IN AB-
SENCE OF DISCRIMINATION.
83. Respecting the refining in transit privilege at
Dallas, Greenville, Sherman, and Ft. Worth, Texas,
on oil for export through Galveston, Held, That the
Commission does not endeavor to establish or extend
transit privileges in the absence of discrimination,
proof of which in this case is wanting; but in a recent
tariff the privilege here asked for apparently has been
granted.
Anadarko Cotton Oil Co. et al. vs. Atchison, To-
peka d Santa Fe Rwy. Co. et al., 20 I. C. C.
Rep., 43 (1910).
84. Allowance of the privilege by a carrier to ship-
pers in one section must be without wrongful preju-
dice to the rights of shippers in another section served
by its line.
Koch vs. F. R. R. Co. ct ah, 10 I. C. C. Rep., 675
(1905).
DISCRIMINATION IN RULES AND INTERPRETATION THEREOF
BETWEEN SHIPPERS.
85. The various complainants herein seek reparation
caused by alleged undue discrimination against them
in favor of competitors in elevator allowances made
by defendant at Omaha and Council Bluffs ; defendant
declined to pay these allowances, alleging that they
were unlav/ful and that the terms of the tariffs were
^—57—
not complied with; Held, That this Commission can
not, without stultifying- itself, make any ruling which
will condemn as unlawful the payment of these allow-
ances during the time they have been expressly sanc-
tioned by its decisions.
The Commission finds with respect to all the ship-
ments involved in these cases that the provision in the
tariffs requiring a return to defendant of the car with-
in forty-eight hours as a condition precedent to the
payment of the allowance is unjust, unreasonable, un-
duly discriminatory, and unlawful; and that com-
plainants are entitled to damages by reason of the
maintenance of such unlawful provision which equal
the amount which would have accrued to them by way
of this elevation allowance, provided the tariff had
contained no such provision. Defendant has paid
the competitors of complainants this elevation allow-
ance ; it has at the same time declined to pay it to com-
plainants. The Commission finds that defendants'
reason for so declining is not a valid one, and that it
has been guilty of undue discrimination against com-
plainants, for which they are entitled to recover as
damages the difference between what has been paid to
their competitors and to them.
Nebraska loioa Grain Company vs. Union Pacific
Railroad Company; Crowell Lumber d Grain
Co. vs. Union Pacific Ra/ilroad Company;
Updike Grain Company vs. Union Pacific
Railroad Company; Cavers Elevator Com-
pany vs. Union Pacific Railroad Company,
15 I. C. C. Rep., 90 (1909).
—58—
86. Tho carrier cannot pay one shipper for transpor-
tation service and enforce an arbitrary rule which de-
prives another of compensation for similar service.
To receive the benent of such work by one elevator
without makin<>- compensation therefor would, in ef-
fect, be the involuntary payment by such elevator of
a rebate to the railroad company, for it would enable
the railroad to receive more net freight on its grain
than was received from its competitor located on the
railroad's tracks. This cannot be directly done, nor
indirectly by means of regulation. A rule apparently
fair on its face and reasonable in its terms, may, in
fact, be unfair and unreasonable if it operates so as
to give one an advantage of which another similarly
situated cannot avail himself.
Union Pacific Company vs. Updike Grain Co. d
Crowell LumUr d Grain Co., 222 U. S., 48,
52 L. ed. (1911).
—59—
XL DISCRIMINATION BETWEEN LOCALITIES.
NOT NECESSARILY UNLAWFUL.
87. The granting of milling in transit privileges to
one territory and denying such privileges to another
territory is not necessarily unlawful.
Koch vs. P. R. R. Co. et aJ., 10 I. C. C. Rep., 675
(1905).
88. Milling in transit privileges on grain were al-
lowed on the Penna. system west of Pittsburg, but
denied to points east of Pittsburg. The privilege was
allowed at a charge of li/oc per 100 lbs. above the
through rate on the grain from point of origin to the
point where the product consigned from the mill was
destined. Grain milled at points east of Pittsburg
was charged full rate on the grain to the mill and full
rate on the product from the mill to destination, the
result being that western milled products had an im-
portant advantage over western grain milled at points
east of Pittsburg. Milling in transit on wheat and
corn originating west of Pittsburg was, however, per-
mitted by the Pennsylvania Co. at points east thereof
when the product was shipped to New York, Phila-
delphia or Baltimore. On complaint by a miller at
Harrisburg that denial of the milling in transit privi-
lege to that point was an unjust discrimination ; Held,
That the granting of transit milling west of Pittsburg
—60—
and denying^ it to millers at Harrisburg was not nec-
essarily unlawful; that while no good reason was
shown why milling in transit should be granted on
shipments of wheat and corn to New York, Philadel-
phia or Baltimore and denied on shipments to local
points, the proof was too incomplete respecting local
conditions to warrant a decision which, in principle,
would involve a general extension of transit privileges
into a large territory where such privileges had not
before been allowed.
Ibid.
NOT UNDUE WHERE CONDITIONS DIFFER.
89. Complainants, owning cotton compresses at Ard-
more and Pauls Valley, Okla., respectively, allege that
the practice of defendants whereby cotton originating
at points north of Ardmore and Pauls Valley is car-
ried by those points to Gainesville, Tex., for compres-
sion, while cotton originating at points south of
Gainesville is not permitted to be carried north
through Gainesville to Ardmore and Pauls Valley for
compression, results in unjust discrimination against
complainants; and ask that this Commission establish
a rule requiring defendants to have all cotton com-
pressed by the compress nearest the point of origin.
Carriers are permitted to adjust their rates, reg-
ulations, and practices with due regard to the circum-
stances and conditions confronting them and the nat-
ural currents and laws of trade and commerce.
—61—
Held, under the circumstances and conditions
shown to exist in these cases, that the discrimination
complained of is not undue. Complaints dismissed.
Chickasaic Compress Co. vs. Gulf, Colorado d
Santa Fe Riry. Co. and Atchison, Topeka &
Santa Fe Rwy. Co.
Pauls Valley Compress & Storage Co. vs. Gulf,
Colorado & Santa Fe Rwy. Co. and Atchison,
Topeka & Santa Fe Rivy. Co., 13 I. C. C. Rep.,
187 (1908).
NOT UNJUST WHERE THERE IS A DISSIMILARITY OF CONDI-
TIONS.
90. On complaint that millers of rice at Houston,
Texas, are subjected to undue prejudice and disad-
vantage because storage in transit and reconsignment
privileges are provided at Houston on rice destined
to New Orleans, La., while similar privileges are de-
nied at Louisiana points on rice destined to Houston,
and of the maintenance of a rate of 19c from Houston
to New Orleans while according a rate of 15c from
Clinton, Texas, a point about 8 miles south of Hous-
ton, Texas, the traffic from Clinton passing through
Houston to reach New Orleans; Held (1) That we
are not warranted in finding that there is any unjust
discrimination because of the failure of rail lines
reaching New Orleans to provide for transit privilege
on shipments of rice from New Orleans to Texas, and
(2) a prima facie case of dissimilarity of conditions
between Houston and Clinton under the fourth sec-
(V2~
tion has been made. As the facts now ai)iK'ar no order
which miiiht disturb the whole system of rice rates
in that section of the country will be entered. Com-
plaint dismissed without prejudice.
liayoit City Rice Mills et ul. vs. Texas d- New Or-
leans R. R. Co. et (//., 18 I. C. C. Rep., 490
(1910).
DOES NOT NECESSARILY CONSTITUTE UNDUE PREJUDICE.
91. The defendant permits milling in transit at St.
Joseph and Kansas City, Mo., of corn orioinating at
points on the St. Joseph & Grand Island Rwy., the
product of which is shipped to Pacific Coast terminals
at the through rate from point of origin to the des-
tination of the product, and under this arrangement
millers at St. Joseph and Kansas City may buy their
corn at points w^est thereof on the St. Joseph & Grand
Island Rwy.; while complainants whose mills are at
i\Iilford and Firth, Neb., on the Chicago, Burlington
& Quincy R. R. are restricted in the purchase of corn
to be milled by them in transit and forwardcMl to Pacific
Coast points to territory east of their mills; Held,
That upon the facts of record, the adjustment com-
plained of does not constitute undue prejudice against
Mili'ord and Firth within the meaning of the act to
regulate commerce.
F. *S'. John sou cC- Co. et <//. rs. A. T. cG ^. F. Rwy.
Co., Tl I. C. C. Rep., G:]T (1011).
—63—
WHERE RATES ARE NOT UNREASONABLE.
92. Defendants maintain or participate in rates on
cottonseed oil in carloads from St. Louis, Mo., and
East St. Louis, 111,, to Chicago, 111., Louisville, Ky.,
and Cincinnati, Ohio, which are relatively lower than
the rates from Cairo, 111., to the same destination;
but the lower rates from St. Louis and East St. Louis
are made by lines which do not reach Cairo, and de-
fendants can not control the rates from those points ;
Held, That the rates from Cairo are not shown to be
unreasonable, and defendants are not guilty of undue
prejudice against that point within the meaning of
Section 3 of the act to regulate commerce.
Roberts Cotton Oil Company vs. Illinois Central
Railroad Coinpany et ah, 21 I. C. C. Rep.,
248 (1911).
WHERE CONDITIONS ARE SUBSTANTIALLY DISSIMILAR.
93. There is no transit arrangement at these local
points but the effect of these local rates was assumed
to be similar to a transit arrangement and avoided the
billing of the property at one rate, collections of the
charges upon that rate, and refund to basis of a lower
rate when the traffic was reshipped from the local
point. Defendant has filed an exhibit showing a com-
parative statement of charges on stave bolts, inbound
and stave outbound from local point; on its line based
on 3 lbs. of raw material inbound to 1 lb. of stave out-
bound. This exhibit shows that from stave bolt man-
— C4—
ufactui-iiig plaiity on d'L' fend ants' line and I'l-oni Padu-
cah, the agc^regate cost of moving the raw material
into the local point and ont as a finished product to
the final destination is, generally speaking, higher
than a similar combination npon l*adncali.
Upon consideration of all the evidence of record
we find no reason for ordering defendant to establish
transit rates at Paducah or for requiring it to publish
flat inbound rates which will be as low as the transit
rates of the 111. Central. The conditions surrounding
the movement of traffic over the two lines are substan-
tially dissimilar. The 111, Central may be of opinion
that the maintenance of transit rates is to its interest ;
but if so, this affords no reason for requiring the Nash-
ville, C. & St. L. Rwy. Co. to take similar action.
Paducah Cooperage Co. vs. Nashville^ C. it- St. L.
Riry., 22 I. C. C. liep., 22G (1912).
WHERE DISADVANTAGES ARE NOT THE RESULT OF UNJUST
DISCRIMINATION.
94. In the absence of undue discrimination between
shippers or milling points the Commission has uni-
formly refused to require a carrier to establish tran-
sit privileges. The complainant labors under a dis-
advantage in the marketing of its products at consum-
ing points on the line of the International & Great
Northern in competition with mills that are situated
on other grain carrying lines. But this disadvantage
is not the result of unjust discrimination on the part
of the defendants. Under the pleadings and upon the
-«5-
facts disclosed of record we are unable to find any
ground for granting the relief sought. The complaint
must therefore be dismissed.
Piano Milling Co. vs. St. Louis S-W. Rioy. Co.
et al, 22 I. C. C. Kep., 360 (1912).
WHERE ONLY ONE OF SEVERAL DEFENDANTS SERVES ALL
POINTS INVOLVED.
95. The complainant alleges that defendants' tariffs,
which provide that rough grains may be milled or
otherwise treated in transit at Minneapolis, St. Paul,
and Minnesota Transfer, give undue preference and
advantage to those points, and subject Janesville,
Wis., to undue prejudice and disadvantage; Held
1. That, as the C. M. & St. P. Rwy. Co. is the
only defendant serving all the points involved, the
other defendants cannot be guilty of violating the act
as alleged.
Johnson d Co. vs. A. T. cG S. F. Rwy. Co., 21 I. C.
C. Rep., 637 (1911).
WHERE CONDITIONS ARE NOT ALIKE.
2. That the action of the St. Paul road in grant-
ing the transit privileges at the twin cities was clearly
forced by competition between the carriers and the
circumstances and conditions surrounding the trans-
portation of grain products from the twin cities to
Pacific Coast points and from Janesville to the same
-66-
destinations are not so clearly alike as to constrain
the Commission to order this carrier either to cease
and desist from according the present privileges at
the tMin cities or to establish similar privileges at
Janesville.
Complaint dismissed.
Blodgett Milling Co. vs. C. M. d St. P. Rwy. Co.
et al, 23 I. C. C. Rep., 448 (1912).
EQUALIZATIOX OF ADVANTAGES OF LOCALITIES.
96. A differential in the rales on two commodities
which in itself is not unlawful, and which results in
benefit to one locality, ought i)ot to be changed for
the purpose of equalizing an advantage enjoyed by
another locality from being granted milling in transit
privileges.
Howard Mills Co. vs. Alissouri Pacific Rwy. Co.
et al., 12 I. "C. C. Hep., 258 (1907). See also
25 I. C. C. Eep., 90 (1912), in the matter of
the investigation and suspension of new mill-
ing in transit regulations at certain stations
on the Chicago & Northwestern and Chicago,
St. Paul, Minneapolis & Omaha Railways —
v.'herein the Commission stated "there is no
reason v.hy mills at Milwaukee should reach
in competition with mills between Minneap-
olis and Milwaukee the great bulk of this
intermediate territory, involving in most in-
stances as such an arrangement does a long
back haul, or its eciuivalent, from Milwaukee."
-67-
NOT WITHIN PROVINCE OF COMMISSION TO OVERCOME DISAD-
VANTAGES OF LOCATION BY ADJUSTMENT OF TRANSPOR-
TATION CHARGES.
97. Complainants, situated in the eastern portion of
Washington Co., Me., allege that by reason of their
location they cannot take advantage of the milling in
transit privilege on corn, although their competitors at
Bangor and Lew iston, ]\Ie., can do so, and therefore al-
lowance of the transit privilege at Bangor and Lewis-
ton constitutes undue discrimination against com-
plainants; Held, That the disadvantage under which
complainants labor is primarily due to their unfavor-
able location and that it is not the province of the
Commission to overcome disadvantages of this nature
by adjustment of transportation charges.
S. S. Quimby ct al. vs. Maine Central R. R. Co. ct
ah, 13 L C. C. Rep., 246 (1908).
NOT WITHIN PROVINCE OF COMMISSION TO TAKE AWAY
ADVANTAGES OF LOCATION.
98. Whatever advantages dealers in grain may have
by reason of their location, either at the twin cities or
west thereof, it is not the province of this Commission
to take away.
Blodgett Milling Co. vs. C. M. d- *S^ P. Ricy. Co.
et al, 23 I. C. C. Kep., 448 (1912).
-68-
WHERE DISCRIMINATION IS UNLAWFUL BETWEEN LOCAL-
ITIES.
99. It appears that defendants' rule for compression
of cotton in transit allows uncompressed cotton, on
demand of shippers, to be taken out of Muskogee, Ind.
T., and points north, including the Tulsa division for
compression at South McAlester, Ind. T., but does not
allow uncompressed cotton to be taken out of or
through South McAlester for compression at Musko-
gee. A large portion of the cotton grown in the ter-
ritory tributary to Muskogee is sold in the east, and
is always compressed before being loaded for the long
haul. Under the practice of compressing at South
McAlester uncompressed cotton originating at Mus-
kogee and points north is hauled by defendant to
South McAlester, unloaded at that compress, com-
pressed, reloaded, and then hauled back over the same
line of railroad, passing again through Muskogee to
defendant's eastern terminus, involving an extra ser-
vice of 124 miles for which defendant receives no com-
pensation : Held, upon the foregoing facts, that de-
fendant's said rule for compression of cotton results
in undue prejudice against Muskogee, and that de-
fendant should grant all the privileges to one compres-
sion point herein considered that it grants to the other.
Muskogee Commercial Club and Muskogee Trajfic
Bureau vs. 3[issoHri, Kansas c6 Texas Rail-
tea y Comimny, 12 I. C. C. Rep., 312 (1907).
100. To facilitate the handling of cattle for feeding
purposes defendants have permitted them to be
— Go-
brought in, from various breeding pastures, stopped
off for a time to be fattened, and tlien sent on to mar-
ket at the through rate plus some additional charge
for the privilege, and plus also the local rate from the
feeding point for the additional weight which the cat-
tle take on in the process of fattening. This feeding
in transit privilege is extended by the tariffs of de-
fendants in territory west of the IMissouri River, but
is not permitted at Iowa points; Held, That this re-
sults in unlawful discrimination against Iowa points
and the complainant.
Corn Belt Meat Producers' Assn. vs. C. B. & Q.
Ricy. et al., 14 I. C. C. Rep., 37G (1908).
I
101. Shipments of grain, grain products, and hay are
carried from the Ohio and Mississippi River crossings
and points north and west thereof to Nashville at
local rates, and quantities of these articles are after-
wards reshipped and rebilled from Nashville to points
in the southwest at the local rate, but the difference
between the sum of the locals thus collected and the
through rate from crossing point to ultimate destina-
tion is refunded to the shipper through the claims de-
partment of the railroad company. There is no agree-
ment for through carriage between shipper and car-
rier at the original point of shipment, no other desti-
nation than Nashville is named, and upon delivery of
grain to that point it loses its identity and is in every
respect a local shipment; Held, That the circum-
stances and conditions prevailing at Nashville are not
so dissimilar from those prevailing at other points in
the southwest as to warrant a continuance of this
-70-
privilege at Nashville without undue discrimination,
to the prejudice and disadvantage of points in that
territory not having a similar privilege; Held, That
this privilege operates as a device by which traffic may
move at less than the lawful tariff rate.
W. S. Duncan tG Company et al. vs. Nashville,
Chattanooga tC- 8t. Louis Railway Company
et al, 16 I. C. C. Rep., 590 (1909).
102. During a part of 1906 defendant, by provisions in
its tariffs, applied to the transportation from Omaha,
Neb., and Council Bluffs, Iowa, to Cairo and other
Ohio River crossings, of grain placed in elevators at
the latter points and reshipped thence to southeastern
destinations proportional rates less than the local
rates paid from said points of origin to said destina-
tions, but no such transit privilege was allowed at
Henderson, Ky. ; Held, That failure to allow the pro-
portional rate and transit privilege at Henderson un-
lawfully discriminated against complainants' business
at that point. Reparation awarded.
Henderson Elevator Company vs. Illinois Central
Railroad Company. 17 1. C. C. Rep., 57o
(1910).
103. In Jlcckcr, Jozies, Jeivell Milling Co. vs. li. d- 0.
R. R. Co. ct al., 14 I. C. C. Rep., 356, the Commission
held that if carriers leading to the seaboard granted a
milling in transit rate to flour for export they should
accord the same rate upon wheat brought to the port
of export and there ground for export. This order
was sustained by the circuit court of the United States
—71—
upon pi'ot'oe(linp:s brought by the carriers to enjoin
its enforcement. N. Y. C. and H. R. R. Co. et al. vs.
Interstate Commerce Commission, 168 Fed. Rep., 131.
While, as already stated, the testimony showed
that the complainant blended in the grinding wheat
brought in by rail with that brought in by water, the
complainant, upon the last hearing, testified that it
might be possible to keep the product of the water-
borne grain distinct. If such changes should be made
in the transit privileges of the complainant as to pre-
vent his present method of business, the opportunity
should perhaps be given him to show whether, under
a different method, the identity of the grain can be
preserved, in which event the defendants ought per-
haps to be required to accord to him at Detroit the
same milling in transit privilege which we required
of the carriers at New York.
David Stott vs. Michigan Central Railroad Com-
pany et al., 18 I. C. C. Rep., 582 (1910).
104. The substantial objection which the defendant
urges to extending these transit privileges at interior
points is the additional trouble and expense which
would be required to police such regulations.
We are of the opinion and hold that if the Illinois
Central accords at Cairo transit privileges in the
handling of grain which it declines to accord to grain
dealers at Decatur it is thereby guilty of undue dis-
crimination against the grain dealer at the latter
point, and that an order should be issued requiring
7'>
this defendant to cease and desist from that discrim-
ination. We do not hold that every village is neces-
sarily entitled to all the privileges of a market, but
confine this present decision to the two localities be-
fore US.
Wm. H. Suffern Grain Co. vs. Illinois Central R.
R. et al, 22 I. C. C. Rep., 178 (1911).
105. This is in accordance with the decision of the
Commission in Koch vs. P. R. R. Co.. 10 I. C. C. Rep.,
675, wherein it was held : Shippers are not entitled as
a matter of riglit to mill grain in transit and forward
the mill's product under the through rate in force on
the grain from the point of origin to the place of ulti-
mate destination; but the allowance of the privilege
by a carrier to shippers in one section must be without
wrongful prejudice to the right of shippers in another
section served by its line. See also Celina Mill d Ele-
vator Co. vs. St. L. 8. W. Rioy. Co., 15 I. C. C. Rep.,
138. We find that the charges imposed in connection
with the milling in transit privilege at Newport, Tenn.,
are unreasonable, and also that in this respect New-
port is discriminated against in favor of Johnson City.
It will be ordered that this discrimination shall cease
and that the defendants shall charge no more for the
milling in transit privilege extended at Newport on
lumber shipments than is contemporaneously imposed
at Johnson City,
George M. Spiegle & Company ct al. vs. Southern
Raihvay Co., 19 I. C. C. Rep., 522 (1910).
106
—73-
In the original report and order in this ease, 16
I. C. C. Rep., 590, it was found, among- other things,
that the reshipping or rebilling privilege permitted in
the tariffs of defendants on grain, grain products, and
hay at Nashville, Tenn., was unlawful, and accorded
to that city undue and unreasonable preference and
advantage and subjected complainant cities to undue
and unreasonable prejudice and disadvantage, and the
carriers were ordered to cease and desist from further
permitting such transit or reshipping privilege. The
order was suspended pending an investigation by the
Commission, upon its own initiative, of the evils at-
tendant upon transit privilege generally. When the
report in that case was made in the Matter of Substi-
tution of Tonnage at Transit Points, 18 I. C. C. Rep.,
280, and the privilege as it had obtained theretofore
at Nashville was modified in accordance with the re-
port, a further hearing was granted in this case to
ascertain whether or not the existence of the privilege
at Nashville, while denied at all other points south of
the Ohio River and east of the Mississippi, constituted
an unreasonable preference or advantage and undue
and unreasonable prejudice and disadvantage in vio-
lation of section 5 of the act to regulate commerce.
After further hearing and oral argument on this
particular issue; Held, That the matters and things
complained of herein constitute a violation of section
3 of the act to regulate commerce.
W. 8. Duncan & Company et al. vs. Nashville,
Chattanooga d St. Louis Ricy. Co. ct al, 21
I. C. C. Rep., 186 (1911).
\
—74—
107. Complainants are owners and operators of grain
elevators located at points in Indiana and Illinois, on
the line of the principal defendant. Under the tariffs
of other roads which serve complainants' competitors
in the same producing territory grain can be unloaded
into elevators at Chicago, 111., and there treated and
shipped on at the balance of a through rate from point
of origin to destination. Said defendant is a party to
such tariffs and participates in the through rates,
but it refuses to grant like rates, or to allow any tran-
sit privilege at Chicago, or grain from complainants'
elevators; its purpose being to hold such grain to its
own line in order to get the larger revenue incident to
the longer haul to eastern markets; Held, That such
course of conduct constitutes an undue discrimination
against complainants from which the carrier should
be required to desist.
Van Natta Bros, et al. vs. C. C. C. cC- St. L. Rwy.
Co. et al., 23 I. C. C. Kep., 1 (1912).
108 . Nor may a Trunk Line set up a milling in transit
privilege with a common carrier tap line by which the
lumber rate is extended back through the mill point
to the tree in the forest unless it pursues the same
course with respect to forests on its own line. That
would be an unlawful preference.
It will suffice to say that any milling in transit
rates proposed for our approval with the Tap Line
recognized by the Commission as a common carrier
-must be adjusted on a non-discriminatory basis, and
-75-
the Tap Line division, as heretofore stated, must be
fixed in an amount that will not effect a rebate to the
industry.
Tap Line Case, 23 I. C. C. Rep., 277 (1912).
109. St. Louis in all instances, and Chicago in most
instances, have been able to so handle wool originat-
ing in the middle region and to some extent upon the
Santa Fe. Most, if not all, other cities have been ex-
cluded from this privilege.
In the past Omaha has enjoyed, to a limited ex-
tent, a transit privilege — that is, the privilege of stop-
ping off this wool and subsequently sending it on at
the balance of the through rate. That locality is now
before the Commission demanding that this privilege
shall be so broadened as to put that community upon
an equality with St. Louis.
Hitherto Detroit has desired to transact a wool
business of this character but has been unable to do
so for the reason that the freight rate was against it.
That locality now insists that it shall be granted some
sort of transit privilege or some system of in and out
rates which shall enable it to transact this business
upon an equality with Chicago and St. Louis.
Chicago and St. Louis have appeared, demanding
that the privilege which they have enjoyed in the past
and under which those markets have grown up shall
be in some form perpetuated.
We have therefore before us the general question,
to what extent these transit privileges shall be per-
mitted or required.
— 7G—
It is patent that the ability of St. Louis and Chi-
cago to handle this wool upon what is equivalent to
the through rate, while Omaha and Detroit cannot do
so, results not from any natural advantage possessed
by these favored communities, but solely from the arti-
ficial circumstances that the tariffs of these carriers
are so constructed as to "break'' at these points.
In 110 case have we declined to establish a transit
privilege where the facts showed that the establish-
ment of that privilege was required. Upon further
consideration of the subject we hold that we may in a
case like this, require carriers to accord that privilege.
(No order was issued but carriers were given until
May 1 to readjust in accordance with opinion).
R. R. Com. of Oregon — Natio7ial Wool Growers
Assn. vs. Oregon S. L. R. R. Co. ef ah, 23 I.
C. C. Rep., 151 (1912).
110. Defendants' rates on flour and other grain prod-
ucts from mills in Southern Illinois to the Atlantic
Seaboard found not unreasonable in themselves, nor
violative of the fourth section, nor unduly discrimina-
tory against such mills in favor of mills at St. Louis;
but defendants should permit milling in transit on
grain upon all lines by which this traffic can move
from St. Louis to eastern destination, at a penalty
not exceeding one-half cent per 100 lbs.
Southern Illinois Millers Assn. vs. Louisville
d Nashville R. R. Co. et al., 23 I. C. C. Rep.,
672 (1912).
—77-
EXPORT RATE ON GRAIN COMPARED TO EXPORT RATE ON
FLOUR MILLED IN TRANSIT.
Ill . Complainant, whose mill is located in the City of
New York, is not entitled to the export rate upon
grain from the west which it grinds into export flour;
but it is entitled to the same rate upon the grain
which it subsequently grinds into export flour that
defendanis accord to interior mills upon export flour.
It appears that while ex-lake grain from Buffalo
to New York enjoys no milling in transit privilege,
export flour from ex-lake grain at Buffalo takes an
export rate II/2C lower than the domestic rate, and it
seems that complainant should be entitled upon ex-
lake grain ground for export to the benefit of this ex-
port flour rate.
Hecker-Jones-Jeicell Milling Co. vs. B. cC- 0. R.
R. Co. et al, 14 I. C. C. Rep., 356 (1908), af-
firmed 168 Fed. Rep., 131.
ALLOWANCE OF PRIVILEGE MUST BE WITHOUT UNJUST DIS-
CRIMINATION.
112. Allowance by carrier to shippers in one territory
of the privilege of milling grain in transit must be
without wrongful prejudice to the rights of shippers
in another territory served by the same line.
Koch vs. P. R. R. et ah, 10 I. C. C. Rep., 675
(1905).
— 7S—
113. Although a carrier is under no legal obligation
to stop a commodity in transit for the purpose of
treatment or reconsignment, where it grants such priv-
ilege it must not discriminate between markets.
St. Louis Hay & Grain Co. vs. M. (6 0. Rwy. Co.
et al., 11 I. C. C. Rep., 90 (1905).
114. Defendants granted elevator allowances of free
service in transferring, cleaning, mixing, clipping and
other handling of grain at Kansas City, Mo., Kansas
City, Argentine, Leavenworth and Coffey ville, Kas.,
but refused to perform like services or make like al-
lowances to elevators and shippers at Atchinson, Kas.
Defendants had placed Atchinson on a parity with
Kansas City and other points named as to inbound
and outbound rates, and had made it, for all rate-
making purposes, a "common point", with Kansas
City and such other points. Held, That as defend-
ants had voluntarily made Kansas City, Mo., Atchin-
son, Kansas City, Argentine, and Leavenworth, Kas.,
common points as to rate making, they could not un-
justly discriminate as between them to the disadvant-
age of Atchinson ; that any elevator allowance or free
service made in connection with the elevation, trans-
ferring, mixing, cleaning, clipping, drying, w^eighing,
storage, loading out or shipment of grain at Kansas
City, Mo., Kansas City, Leavenworth, or Argentine,
Kas., should also be furnished at the same time and to
the same degree and extent at Atchinson.
City Council of Atchinson, Kas. vs. Mo. P. Rwy.
Co. et al., 12 I. C. C. Eep., Ill ; petition for
rehearing denied. 12 I. C. C. Rep., 254
(1907).
—79—
DISCRIMINATION MAY BE JUSTIFIED BY COMPETITION.
115. Grain stopped in transit at Wichita, Kas., was
permitted to be sent ont on the balance of a throngh
rate, provided it was forwarded by the line bringing
it in. Grain stopped in transit at Kansas City was
permitted to be sent out on a proportional rate by
any line from that point. Held, That if the privilege
in favor of Kansas City was voluntarily allowed, the
same should be extended to Wichita; but that if the
privilege was forced by competition, the carriers were
not obliged to establish the same privilege at Wichita.
Maijor, etc. of Wichita vs. A. T. cG S. F. Rimj. Co.
et al., 9 I. C. C. Eep., 534 (1903).
-81—
XII. DOING BUSINESS UNDER OPEN RATES.
AS DISTINGUISHED FROM MILLING IN TRANSIT.
IIG . Where a business like the milling industry is con-
ducted under local rates on wheat to the mill point,
and local or through rates on the product from that
city, this is doing business under open rates or, as the
term is sometimes employed, in the "open market" as
distinguished from milling in transit under the through
rate from point of origin of the wheat to ultimate des-
tination of the product plus an arbitrary which is
added for the privilege.
About 1890 the practice of milling grain in tran-
sit at Minneapolis was abandoned and from that time
the milling industry has been carried on under local
rates on wheat to, and local or through rates on the
product from that city. This is doing business under
open rates, or in the open market, as distinguished
from milling in transit under the through wheat rate
to which an arbitrary is usually added for the priv-
ilege.
LiMman Mill Co. vs. C. M. d St. P. Rwy. Co., 8 I.
C. C. Rep., 47 (1898).
RELATION OF MILLING IN TRANSIT RATES AT ONE POINT TO
OPEN RATES ESTABLISHED AT RIVAL POINT.
117. Through rates on wheat from points on defendant's
line west of Minneapolis via Minneapolis to Milwau-
-82-
kee or Chicago were usually 2I/2C per 100 lbs. below
the sum of the corresponding in and out rates at Min-
neapolis, such in and out rates being applied when the
wheat was milled in transit at that point. Wheat
shipped from points on defendant's line west of La
Crosse, Wis., and milled at that point, the product
being shipped to Milwaukee or Chicago, was not car-
ried under the system of open rates prevailing at Min-
neapolis, but under the through wheat rate from point
of origin via La Crosse to destination, a milling in
transit penalty being imposed of 2i/^c above the
through rate. The transit rates given La Crosse bore
the same relation to the through wheat rates via that
point that the in and out rates at Minneapolis bore to
the through rates via Minneapolis. Transit rates at
La Crosse were intended to place millers in that city
upon a footing of relative equality with rivals at Min-
neapolis. Ueld, That neither the milling in transit
rates given La Crosse, nor the relations of those rates
with the rates established for Minneapolis, resulted in
undue prejudice to La Crosse.
Ihid.
-83—
XIII. RECONSIGNING.
RECONSIGNIXG TO SECURE BENEFIT OF THROUGH RATE
LOWER THAN COMBINATION.
118. Usually the combination of local 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 the shipment is in transit, or after it arrives
at the destination to which originally consigned, and
to forward it under the through rate from the point
of origin to the final destination. Most carriers grant
such privilege and generally make a charge therefor.
Rule 77/ Tariff Circular 18-A also Rule 72 Confer-
ence Ruling Bulletin No. 5.
RECONSIGNING TO TEST THE MARKET.
119 . This method is also used very frequently by ship-
pers at the present time to "test the market" at a par-
ticular point.
In the ordinary acceptation of the term, a recon-
signment refers to a change in destination, accom-
panied or not by a change in the name of the con-
signee, rather than to a mere change in the name of
the consignee; but the latter change is recognized by
—84-
tlic roiuinission as a reconsignmeiit and the railroads
are llierefore justified in putting that interpretation
upon their tariffs.
Beekman Lumber Co. vs. K. C. So. Ricy. Co., 17
I. C. C. Rep., 86 (1909).
RECONSIGXIXG IS A PRIVILEGE NOT A RIGHT.
120. The Commission has always regarded reconsign-
ment as a privilege, not a right to be demanded by ship-
pers, and has consistently refused to extend same ex-
cept to correct unjust discrimination.
Cedar Hill C. & C. Co. et al. vs. C. d- S. Ricy. Co.
et al, IG I. C. C. Rep., 387 (1909).
RECONSIGNING INCLUDES CHANGES IN DESTINATION, ROUT-
ING OR CONSIGNEE.
121 . For a while some carriers did not consider change
of consignee which did not involve a change of desti-
nation as a reconsignment, while others did consider
it a reconsignment and charged for it as such. This
naturally led to confusion and misunderstanding in
the application of that term and in the assessment of
the charge for such service. The Commission finally
ruled that without specific qualifications the term re-
consignment includes changes in destination, routing
or consignee; that if a carrier wishes to distinguish
between such changes in its privileges or charges it
must so specify in its tariff rules.
Rule 77/ Tariff Circular 18- A Supra, also Rule 72
Conference Ruling Bulletin No. 5.
—85—
RECONSIGNMENT ON SHIPPER'S ORDER OF PART LOTS OF
CONSIGNMENTS OF GOODS HELD IN STORAGE.
122 . The distribution and reconsignment of part lots
of goods held in store by the carrier is of considerable
importance and value to shippers and especially so to
the class of manufacture or dealers largely engaged in
supplying those staple commodities which are com-
mon demand throughout the country. To the extent
of its value, each privilege lessens the aggregate com-
pensation paid by shippers to carriers for transpor-
tation and terminal services.
The function of the carrier is to receive, transport
and deliver. As a rule, it can only be forced into the
position of warehouseman through lack of diligence
on the part of the consignee in the removal of his
property. With no general duty to act as a ware-
houseman for indefinite periods in connection with
its primary obligations as a common carrier, it cannot
assume to provide shippers with valuable warehouse
facilities which are not essential to its business as a
carrier, mthout furnishing them for all shippers at
all times and upon the same terms and notifying the
public thereof in the manner provided by law. Dis-
tributing consignments held in store, suspending col-
lection charges for use of cars beyond specific reason-
able periods of time after such cars have been placed
for loading or unloading by shippers or consignees,
and all kindred concessions, come within the same re-
quirements of impartiality and publication.
America 11 Warehouseman Assn. us. III. Central
R. R. Co., 7 I. C. C. Rep., 556 (1S98).
—86—
CARRIER LIABLE UPON REFUSAL TO RECOXSIGN ACCORDING
TO PUBLISHED RULES.
123. Upon the facts disclosed by, the record complain-
ant is entitled to reparation because defendants neg-
ligently failed to complj'^ with complainant's request
for reconsignment of one carload of hay.
Eanley Milling Company vs. Pennsylvania Com-
pany et al, 19 I. C. C. Rep., 475 (1910).
RECONSIGNMENT RATE HIGHER THAN THE PROPORTION OF
THE THROUGH RATE.
124. It was shown that the service of the defendants
in handling reconsigned hay at and from East St.
Louis was more expensive as a general rule, if not
invariable, than the service performed in case of ship-
ments through East St. Louis, while the privilege of
reconsigning hay from that point at a charge less
than (the established local rate was of substantial
value to dealers in that city. The Commission JHeld,
That the fact that through rates were less than the
sum of the local in and | out rates was not of itself
a valid ground of objection, nor w^as it unlawful for
the defendants to maintain reconsignment rates which
were higher in , some cases than their proportion of
through rate; that the fact that the reconsignment
rate is sometimes the same as the proportion of the
through rates does not warrant an inference of illegal
conduct or support a charge of unjust discrimina-
tion.
St. Louis Hay d ^Grain Co. vs. III. Central R. R.
Co. et al. 11 I. C. C. Rep., 486 (1905).
-87—
RESHIPPING RATE FROM PRIMARY GRAIN MARKET.
125 . May a carrier cancel its local reconsigning, propor-
tional and other jrates, on outbound shipments of
grain from a primary market like Kansas City, Mo.,
where no grain originates upon which the local rate
would be applicable on all outbound grain? Kespond-
ing to the inquiry the Commission approved the sug-
gestion, but declined in advance to express approval
of such reshipping rate when it makes less than the
published rate from an intermediate point.
Ibid.
CAN NOT ENFORCE DEMURRAGE ENROUTE WHILE PARLEY-
ING WITH CONNECTIONS.
126 . Where a carrier provides in its tariff for reconsign-
meiu without any requirement for ^ prepayment of
freight or guaranty of the same it may not lawfully
charge demurrage for time during which it holds the
shipment while j parleying with its connections as to
advancement of its freight charges.
Beekman Lumber Company vs. St. Louis South-
western Railicay Company et al., 14 I. C. C.
Rep., 532 (1908).
-89—
XIV. RATE TO BE APPLIED ON RESHIPPED COM-
MODITY.
THROUGH RATE PLUS CHARGE FOR PRIVILEGE.
127. An arbitrary sum exacted in addition to the
through rate on a given commodity for the privilege
of milling the commodity in transit, becomes a part of
the aggregate through rate.
Listman Mill Co. vs. Chicago M. & St. P. Rivy.
Co.,et al., 8 I. C. C. Rep., 47 (1898).
CHANGES IN RATES DO NOT AFFECT SHIPMENT IN COURSE OF
TRANSPORTATION.
128 . Rates frequently change while commodities are in a
state of suspended transportation at the transit point.
In such , case it is necessary to determine whether or
not the rate to be applied shall be that of the day
of final shipment or that of the day of shipment from
the (first point of origin. The Commission has held
that the through rates to be charged for the transporta-
tion are the rates in effect at the time the shipment is
first delivered to ^the carrier. Changes in rates do
not affect shipments which are in course of transporta-
tion. Shippers delivering commodities to carriers are
not subject to change of rates by the carriers after
—90—
the carriers take possession of the shipments and issue
bills of lading.
In re Milling in Transit Rates, 17 I. C. C. Rep., 113
(1909). See also In the Matter of Through
Routes and Through Rates, 12 I. C. C. Rep.,
1G3 (1907), and Rule 119, Con. Rul. lUiL,
No., 5.
THROUGH RATE IN EFFECT AT TIME SHIPMENT MOVED.
129 . The Commission is unable to accept or countenance
the theory of suspended transportation, with its result
of the application of the through rate for commodi-
ties which have been milled or merchandised, without
applying to the situation thus created the rule of law
that rates cannot be changed while shipments are in
course of transportation. The Commission cannot
say that shipments are theoretically in course of trans-
portation in order that the through rate may be ap-
plied, and actually not in course of transportation in
order that changed rates may be applied.
The Commission adheres to its former ruling that
whenever by any transit arrangement through rates
are applied, such through rates must be as of the date
of the first movement of the shipment from the point
of origin under such through rates.
17 I. C. 0. Rep., 113 (1909), Supra.
—91-
TARIFF RULE PROVIDING RATE APPLICABLE FROM RESHIPPING.
POINT NOT SANCTIONED.
130. Upon inquiry whether a proposed tariff rule pro-
vidino- that "The rate to be applied on all outbound
transit grain of record shall be the specitic rate that
is lawfully in effect from Chicago at the time the grain
is reshipped" may lawfully be incorporated in a tariff;
Heldy That the Commission can not sanction the rule,
and that the grain can move only as a through move-
ment on the through rate in effect at the time it starts,
or at a local movement.
Conference Ruling Bulletin No. 5, Rule 119, In
Re-M'illinff in Transit Rates, 17 I. C. C. Rep.,
113 (1909).
RATE APPLIED ON SHIPMENTS REFUSED BY CONSIGNEES
OR DAMAGED IN TRANSIT.
131 . In one form or another many carriers provide for
the return free or at reduced rates, or the reconsign-
meut under the through rate from point of origin, of
shipments that are damaged in transit or are refused
by consignees. In answer to request for a ruling the
Commission expressed the opinion that in a non-
discriminatory way and within reasonable limits such
rule is not unlawful or improper. Care should be
taken to preserve the distinction between shipments
in which the carrier hns no interest, except the col-
lection of the transportation charges, and which are
reconsigncd or returned purely out of consideration
—92—
for the interests of the owner of the shipment, and
shipments which because of injury or damage in tran-
sit, are left on the carrier's hands and in which it has
an interest to the extent of the transportation charges
and the value of the shipment.
Rule 61, Tariff Circular 18-A.
132 . It appears that in some instances carriers are will-
ing to reconsign refused shipments to points 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 carrier 'whether or not it
will grant reconsigning privilege. If granted, the con-
ditions governing it must be in tariff, and if charges
for back 'haul or out of line haul are to be assessed,
rule must so state.
It is of course understood that satisfactory show-
ing of genuine transaction and actual refusal by con-
signee will be required. (Rule 78, Tariff Circular
15-A, amended accordingly ; now published as Rule 67
of Tariff Circular 18-A.)
Conference Ruling Bulletin No. 5, Rule llJf.
133 . A rule providing that shipments which are refused
by consignee may be reconsigned and forwarded, under
application of through rate from 'the point of origin
to final destination, either with or without the exac-
tion of a reconsignment charge, is permissible. Where
—93—
the tariff provides for the return of shipments at re-
duced rates the tariff" rule must be strictly complied
with. Such tariff' rule should provide that the way-
bill covering the return 'movement and shipping re-
ceipt must show reference to the original outbound
shipment and waybill.
Ride 67, Tariff Circular 18- A.
134. A rule providing for the reconsignment and re-
turn free or at ^reduced rates of articles damaged in
transit is not improper if it is so framed and applied
as to prevent abuses or improper practices under it.
The practice of returning at reduced rates articles
that have been delivered into the possession of con-
signees and have become shop worn or have gotten into
a state of disrepair through use, is neither proper
nor free from unjust discrimination. A rule accord-
ing to reduced rates or return shipments is proper
only in so far as it applies to the return shipments
that are received by the consignee in bad order or
are refused by the consignee without examination.
As to shipments that are not in closed packages
and thus are open to immediate inspection, the rule
should provide that in order to secure rates on the
return movement the goods shall not have left the
possession of the carrier before such claim is made.
As to goods that are in closed packages, the rule
should provide that in order to secure reduced rates
on return movement such goods must be returned to
the carrier within ten days.
Ihicl
—94-
RATES MUST BE APPLIED ONLY VIA THE ROUTE OVER WHICH
SHIPMENT MOVED.
135. The foregoing rules must be in tariffs and must
be applied without discrimination and should provide
that the rule for the return of shipments applies only
via the route and line over which the shipment moved.
Uniformity among carriers in rules and practices
in such matters as these is desirable and contributes
to thorough understanding and harmony between car-
riers and shippers.
Ibid.
CARRIER LIABLE FOR OVERCHARGE DUE TO MISROUTING OF
TRANSIT SHIPMENT.
136. As the agent of an intermediate carrier has no
means of knowing just why a shipment has been
routed through particular Junctions, he has no right
to substitute his own judgment as to routing for the
specific routing instructions accompanying the ship-
ment. In a stated case the initial carrier issued bills
of lading showing particular routing but no rate ; the
transfer billing subsequently issued to a connecting
line showed the routing and a 10 cent division of a
33 cent rate that did not apply through the junctions
named but through another junction; and the agent
of the connection therefore diverted the shipment
through the latter junction to destination. It subse-
quently appeared that because of the diversion the
shipper had lost a transit right at a given point on
—95—
the route specified, which was necessary to effect the
sale to the shipment at destination : Held, That as
tariffs are permitted to contain rules providing that
they are subject to the transit privileges shown on
the tariffs of individual carriers on file with the Com-
mission, the intermediate line was responsible to the
shipper for the difference between the rate paid in
order to get the shipment back to the transit point and
the legal rate over the route directed by the shipper.
(See Rule 21/f) Conference Rulings^ Bulletin No.
5, Rule 230 (WOO).
RECONSIGNMENT RATES OPTIONAL WITH CARRIER UN-
LAWFUL.
137. Keconsignment rules required to be signed by the
shipper and subject to cancellation at the option of
the carrier are inconsistent with the law governing
the establishment and modification of tariff schedules.
Kile d Morgan vs. Deep water Ricy. Co. ct ah, 15
I. C. C. Rep., 235 (1909).
SHIPMENT THAT MOVED IN UNDER A FORMER TARIFF DOES
NOT LOSE THE BENEFIT OF THROUGH TRANSIT RATE
CANCELLED PENDING THE OUT MOVEMENT.
138. A tariff enabled shippers to concentrate commodi-
ties on local rates at a certain point for shipment
Vvithin a named period in carload lots, the inbound
billing to be surrendered, and through rates from
point of original shipment to apply. Before the period
—96—
of taking advantage of this privilege had expired a
new tariff made a new arrangement. Ileld, That with
respect to shipments that had moved to the concen-
trating point under the old tariff and which moved
out within the period allowed, the old rate should
apply.
Rule 80, Con. Rul., Bui. No. 5 {1908).
139 . Where a shipment over a through route is stopped
at an intermediate point under some tariff privilege,
the local or proportional rate, "in" cannot be absorbed,
diminished or affected by any "out" rate not in effect
at the time when the trafl&c moved upon such local or
proportional rate.
Re Through Routes and Through Rates, 12 I. C.
C. Rep., 163 (1907).
THROUGH TRANSIT RATE NOT AVAILED OF CANNOT BE
RENEWED AFTER THE EXPIRATION OF THE TIME
ALLOWED IN THE TARIFFS.
140. A consignor of sheep, which were being grazed in
transit, was unable because of a severe snow-storm, to
get the sheep to the station before the grazing privi-
lege expired according to the published time limit.
Upon 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.
Rule 53 Con. Rul, Bui. No. 5 {1908).
—97—
STRICT COMPLIANCE WITH RULES NECESSARY TO USE OF
PRIVILEGE.
141. In making shipments of structural iron and steel
the consignor intended to take advantage of the priv-
ilege 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
omission higher charges accrued. Held, That the Com-
mission will not authorize the carrier to refund the
additional charges resulting from the shipper's own
error.
Rule SJfS, Con. Rul., Bui. No. 5 {1912).
NEW POLICING RULES APPLY TO ALL TONNAGE— INCLUDING
THAT MOVED IN PREVIOUS TO PUBLICATION.
142. Some question has arisen as to effect of the order
upon tonnage that had begun to move prior to August
15, 1912. The Commission's order related only to
policing, and in that respect effected all tonnage upon
which transit privileges were or are claimed on or
after August 15th. The rate in effect at the time
the shipments began to move is the rate lawfully
applicable. In case a privilege had been enjoyed prior
to the date of the order, a tariff cancelling such priv-
ilege does not effect tonnage that began to nior<^ prior
to the cancellation but such tonnage is subje'^'■ to the
policing requirements. Interstate Remedy Co. vs.
American Express Co., 16 I. C. C. Rep., 436 (1909).
Supplemental Report in Transit Case, 25 I. C. C.
Rep., 130 (1912).
—OS-
THROUGH TRANSIT RATE WILL NOT BE GIVEN A RETROAC-
TIVE EFFECT.
143. A shipment consigned to one point was recon-
signed en route to another, the tariff containing no
reconsignment privilege. As a consequence local rate:?
to and from the reconsigning point were applied and
made higher than the through rate. Held, Under sub-
sequent tariff that did not reduce rate, but incorpor-
ated a reconsignment privilege, that the benefit of
such privilege could not be applied retroactively to a
previous shipment and cannot be accepted as the basis
for a refund on special reparation docket.
Rule 6, Con. Rut, Bui. No. 5 {1901) ; Rule 166,
Con. Rul., Bui. No. 5 (1909).
144. The above rule is held to include cleaning, mill-
ing, concentration, and other transit privileges.
Rule 77, Con. Rul, Bui. No. 5 {1908).
145. Complainant alleged that defendants charge of
|3 pc^r car for the privilege of reconsigning shipments
of hay at Cairo, 111., was unreasonable; but subse-
quently defendant abrogated such reconsignment
charge at Cairo, thus removing the original cause of
complaint.
At the hearing, claim for reparation was urged
on account of shipments made while the reconsign-
ment rule was in effect; but upon the facts disclosed
—99—
in the record, the claim is disallowed and the com-
plaint dismissed.
T. M. Kehoe d- Company vs. Illinois Central Rail-
road Company, 14 I. C. C. Rep., 541 (1908).
146. The Commission has consistently held in the past
that it could not with propriety make a reconsignment
privilege retroactive in practical effect by ordering
reparation on a shipment made at a time when the
same was not available, the basis of such reparation
being the non-availability of such privileges at the
time shipments moved and the subsequent publication
of the same. It seems clear that the privilege as pub-
lished in tariffs in effect at the time the shipment in
question moved was not applicable thereon because
of one of the essential conditions under which that
privilege was to be had, to wit, that the reconsign-
ments should be accomplished wdthin 72 hours after
arrival of the shipment at first destination, was not
met.
Sunnyside Coal Mining Co. vs. D. d- R. G. R. R.
Co. et al., 16 I. C. C. Rep., 558 (1909).
147 . Bulletin No. 4 Provides :
Adhering to Rule 6 the Commission will not sanc-
tion the application retroactively of a reconsigning
privilege even though it had long been the custom of
the carrier to permit reconsignment without tariff
authority.
This principle has been applied in numerous cases :
Shiel d Co. vs. I. C. R. R. Co., 12 I. C. C. Rep., 210 ;
—100—
Kansas City Hay Co. vs. St. L. cC Sf. F. R. R. Co.,
14 I. C. C. Kep., 631 ; Folmer c6 Co. vs. Gt. N. Rwy.
15 I. C. C. Kep., 33; Kill & Morgan vs. Deep-
water Ricy. Co., 15 I. C. C. Eep., 235 ; National Lumber
Co. vs. S. P. L. A. cG 8. L. R. R. Co., 15 I. C. C. Rep.,
434 (1909) ; Sunny side Coal Alining Co. vs. D. d R. G.
R. R. Co., 16 I. C. C. Rep., 558; and Acme Cement
Plaster Co. vs. C. & A. R. R. Co., 17 I. C. C. Rep., 220.
H. F. Cady Lumber Co. vs. Missouri Pacific Rail-
icay Company et al., 19 I. C. C. Rep., 12
(1910).
148. Complainants seek retroactive application of mill-
ing in transit privilege on logs at Evansville, Ind. The
outbound shipments of lumber alleged to have been
the product moved 18 months after the inbound ship-
ments : Held, That a milling in transit privilege can
not reasonably extend over so long a period ; and, fur-
thermore, a retroactive application of the privilege
should not be made.
Young & Cutsinger vs. Louisville d Nashville
Railroad Company, 22 I. C. C. Rep., 1 (1911).
149. Defendant charged 7.7 cents per 100 pounds on
logs from McLean's Spur, Ky., to Louisville, Ky.,
said to have been shipped with the understanding that
refund would be made to basis of 5 cents upon proot
that the manufactured product had been reshipped via
defendant's line. The inbound shipments moTcd dur-
ing period from May, 1907, to September, 1908, but
carrier failed to establish the rate contended for until
—101—
I
October, 1908. All outbound movements were made
subsequently to October, 1909 : Held, That the inter-
vening period was unreasonably long. The Commis-
sion adheres to its policy of refusing to authorize
retroactive application of transit privileges unless for
the purpose of removing a discrimination.
Wood Mosaic Flooring & Lumber Company vs.
Louisville cC- Nashville Railroad Company^ 22
I. C. C. Rep., 458 (1912).
150. Following previous decisions, Ileld^ That in the
absence of a showing of unjust discrimination a tran-
sit privilege will not be given retroactive effect.
Smith tG Co., Ltd., vs. Oregon Short Line R. R.
Co. et al., Unreported Opinion, 670 (1912).
See also Deeves Lumber Co. vs. Alabama and
Vicksburg Railway et al., 25 I. C. C. Kep., 42
(1912).
RATES APPLICABLE WHERE GOODS DESTROYED WHILE SUS-
PENDED IN TRANSIT.
151. Complainant shipped 125 bales of cotton from
Law^ton, Okla., to Chickasha, Okla., for concentration
and subsequent reshipment. Defendants' tariffs pro-
vided that on reshipment from the concentration point
the through rate from point of origin to final destina-
tion would be protected. Consignment was destroyed
by fire while standing upon the platform of the com-
press at Chickasha. Complaint seeking refund of the
—102—
local charges collected for the movement from Lawton
to Chickasha dismissed.
Anderson y Clayton d Company vs. 8t. Louis <&
San Francisco Railroad Company et al., 17
I. C. C. Rep., 12 (1909).
RATES APPLICABLE TO SHIPMENTS STOPPED SHORT OF IN-
TENDED DESTINATION.
152 . Under transit tariffs requiring the payment of the
full rate to final destination at the time the shipment
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 refund 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.
Conference Rulings, Bulletin No. 5, Rule 350
{1913 \
—103-
XV. SUBSTITUTION.
NECESSITY FOR SUBSTITUTION.
153. The Commission in considering the practice of
floating cotton does not pass over the entire route,
but that substitution takes place at the compress
point. This is certainly true. If a carload of cotton
leaves Hernando for Boston, it is quite probable that
no single bale of that cotton ever goes to Boston. If
the car in which it came to Grenada reaches that
destination it is practically certain that it will be filled
with other cotton, but is this in any way material?
Every pound of Hernando cotton finally goes to some
point beyond Grenada. It is true that a bale of cot-
ton railed at Grenada may go from Grenada to Boston,
by this process of substitution, at the Hernando rate,
but in that event a corresponding amount of cotton
from Hernando must go to some point upon the
Grenada rate. However, it may be in theory, there
can be in fact no discrimination. Grenada cotton is
bought upon and has the benefit of the Grenada rate,
and cannot possibly obtain the benefit of any other
rate, and Hernando cotton must go to a point beyond
Grenada at some published rate.
Re Unlawful Rates and Practices in Transportar-
tioii of Cotton, 8 I. C. C. Rep., 121 (1899).
—104—
IMPRACTICABLE TO REFORVVARD IDENTICAL CARLOAD OF
GRAIN.
154. Milling, storage or cleaning in transit privilege
cannot be justified on any theory except that the iden-
tical commodity or its exact equivalent, or its product,
is finally forwarded from the transit point under the
application of the through rate from original point
of shipment. It is, therefore, not permissible at tran-
sit point to forward on transit rate commodity that
did not move into transit point on territory for the
same or like commodity moving into transit that would
impair the integrity of the through rate. It is not
practicable to require that the identity of each car-
load of grain, lumber, salt, etc., be preserved, but
in the opinion of the Commission, it is not possible to
lawfully substitute at the transit point any commodity
of a different kind from that which has moved into
such transit point under a transit rate or rule. That
is to say, oats or the products of oats may not be sub-
stituted for corn, corn or the products of corn for
wheat, nor wheat or the products of wheat for barley,
nor may shingles be substituted for lumber, nor lum-
ber for shingles, nor may rock salt be substituted for
fine salt, nor fine salt for rock salt ; likewise oak lum-
ber may not be substituted for maple lumber, nor pine
lumber for either oak or maple, nor may hard wheat,
soft w^heat, or spring wheat be substituted either for
the other. These illustrations are given not as cover-
ing the entire field of possible abuses, but as indicating
the view which the Commission will take of such abuses
as they arise.
—105—
To the end that abuses now existing at transit
points may be eliminated, carriers will be expected to
conform their transit rules and their billing to the
suggestions of this rule. In the event of the failure
of any carrier so to do, reductions of legal rates caused
by transit abuses will be regulated as voluntary con-
cessions from legal rates. Rule 16, Tariff Cir. 18-A
{1909) ; Rule 203, Con. Rul., Bui. No. 5.
TARIFF RULE PROVIDING FOR EQUIVALENT TONNAGE, CEMENT
OR PLASTER, HELD TO BE UNLAWFUL.
155. A shipper proposed a tariff rule authorizing car-
load shipments of lime originating at eastern points
to be stopped at Omaha, where a part of the contents
could be unloaded and an equivalent tonnage of cement
or plaster substituted, the charges to final destination
be assessed in accordance with the rate on line from
the original point of origin : Held, That the proposed
rule be unlawful.
Rule 181, Con. Rut., Bui. No. 5 {1909).
RULE 76, TARIFF CIRCULAR 17-A, NOT TOO STRICT.
156. ''The various investigations held by the Com-
mission in regard to the matter of the substitution
at transit points have failed to demonstrate that the
Commission's Rule No. 76, relative to substituting
tonnage at transit point was too strict, but they
have demonstrated that the various practices out-
lined in the report herein have resulted in the viola-
—106—
tion of the published tariff rates, to the injury of ship-
pers not taking advantage of such practices. Continu-
ance of such abuses will compel the Commission to
resort to criminal prosecutions, including both ship-
ers and carriers, to secure obedience to the law."
In the Matter of Substitution of Tonnage at Tran-
sit Points, 18 I. C. C. Kep., 280 (1910).
SUBSTITUTION AFTER DISCONTINUANCE OF BANKRUPTCY
PROCEEDINGS.
157. When bankruptcy proceeding discontinued opera-
tion of a milling plant that was using a transit priv-
ilege it developed that there were on hand large num-
bers of inbound expense bills and practically no cor-
responding tonnage of grain or grain products entitled
to transit rates: Held, That such old expense bills
were worthless for reshipping purposes in connection
with tonnage that moved into the plant after complain-
ant had resumed business at the same plant, first as
lessee and later as a corporation: Held also. That
complainant is entitled to use for transit purposes in-
bound expense bills representing grain moved into the
plant subsequent to resumption of business under
lease, and to reparation on certain shipments in con-
nection with which confusion as to the proper man-
ner of surrender of expense bills was contributed to by
both defendant and complainant.
Henry A. Klyce Company vs. Illinois Central
Railroad Company et al., 19 I. C. C. Kep.,
567 (1910).
—107—
CROSS BILLING IS A TECHNICAL DISCRIMINATION AND NOT
UNDUE.
158. Grain might move from the field to the east
through St. Louis, for example, from many points of
origin with the right to mill or elevate at St. Louis.
Under this system the grain paid a certain rate into
St. Louis and what was known as the balance of the
through rate when it went forward. Since the division
of this through rate which was allowed to lines east
of St. Louis varied with the point of origin, it re-
sulted that the balance of the through rate differed,
and this presented opportunity for manipulation of
billing. In a market like St. Louis, where there is
a large local consumption and where, therefore, sur-
plus billing to a considerable amount could always
be had, it was possible by the crossing of billing, by
selecting of the most favorable billing, and by other
practices, to defeat the through rate so that this sys-
tem, while in theory entirely just, was in its working
filled with iniquity. To prevent discrimination aris-
ing from these matters the Commission has long bi-
lieved that when conditions admit rates should be
established from these larger grain markets applicable
to all grain handled at and shipped from the market,
irrespective of its point of origin, and the rates before
us were established by the carriers in that view.
While the foreging considerations which are re-
lied upon by the complainant do show a technical dis-
crimination, tliey are not substantial. It is undoubt-
edly true that in fact under this system of specific
—108—
rates grain from some quarters actually pays a trans-
portation charge less than it should, while grain from
other quarters pays more than it should, but on the
whole no material hardship results and we feel that
in view of the greater general good we should hold
that these incidental discriminations are not undue.
Southern Illinois Millers' Assn. vs. Louisville d
Nashville R. R. Co. et al., 23 I. C. C. Rep.,
672 (1912).
TARIFF MAY BE ADJUSTED TO LEGALIZE NECESSARY SUB-
STITUTIONS AND CROSS BILLING.
159. Probably the most serious question raised by the
order relates to what is known as the division of the
product in the milling of grain. Certain mills have
been shipping out flour on wheat, pound for pound.
This necessarily involves a substitution at the mills
and the practice w^as prohibited. The individual re-
spondents are now requiring the maintenance of the
proper ratio of product to inbound grain for their
separate lines of railway. The Commission is asked
to modify its rule so as to permit the average ratio
to be maintained for the mill as a whole instead of
each particular line. This is to enable the millers to
ship out their flour to markets upon one line of rail-
road and their offal or feed to points upon another
line. That, for commercial reasons, this is frequently
desirable we do not doubt, but in the absence of proper
tariff publication to which all carriers participating
in the in and out movement are parties, an illegal sub-
—109—
stitution would result. Rates upon grain moving
through a transit point upon a transit privilege and
milled at the transit point are assessed in any one
of several ways. Some of the carriers charge the local
rate to the milling point, and, when the milled product
is billed out, refund the local rate and bill the product,
as such, from point of origin of the grain or rate
basing point to destination of product. Other carriers
reduce the locals originally collected to the milling
point to a figure, which, added to the rate charged
beyond the milling point, equals the through rate via
the milling point from origin to destination. Again,
the carrier may bill the grain at the local rate sub-
ject to adjustment to the through rate point or rate
basing point to destination by claim. At many of
the points there is a supply of non-transit grain and
a disposition of non-transit products. Where the
through rates applicable to the various through routes
via the transit point vary the opportunity for substi-
tution is clearly apparent. If, therefore, flour can be
shipped pound for pound, for wheat received by the
surrender of no particular billing, the integrity of
the through rate is affected, and tonnage of flour
which would not have been produced covered by the
inbound billing surrendered is substituted. The same
substitution would be present in the case of the by-
products. If accounts are kept of each kind and char-
acter of grain reaching the milling point via each road
and care is taken that the outbound shipments in
a given account are made, either over the road bring-
ing the grain into the milling point or over a road
—no-
forming part of the through route with the inbound
road, it would not be absolutely necessary to preserve
the ratio on each individual car of grain or as to
each line of railroad passing through the transit
point. The lawful character of the operation of transit
in this connection is largely a transportation question
and one that for all practical purposes the carriers
can take care of by so publishing their rates as to
make lawful what would otherwise be clearly unlaw-
ful. If the carriers have permitted business to develop
at points on their lines through the enjoyment of
illegal practices, it would be natural to suppose that
they would now do all in their power to bring such
business within the pale of the law with the least
danger of loss to their patrons and the consequent
depletion of their own revenue. These movements
which are now illegal can be made legal by the carriers
if they will adjust their through routes and rates
so as to provide specifically for the movement of
products in the same manner that they have hereto-
fore moved without tariff authority. Moreover, the
carriers could so adjust their rates that the millers
would not be required to pay in the aggregate higher
transportation charges upon business done in accord-
ance with the law than they did on movements in-
volving illegal substitutions.
Supplemental Report in Transit case, 25 I. C. C.
Rep., 130 (1912).
— Ill—
UNLAWFUL SUBSTITUTIONS ENUMERATED.
160. The illegal transfer of billing to a shipper who
is not entitled to a transit privilege thereon; illegal
transfer of grain not accompanied by the proper bill-
ing and the application to such grain of illegal transit;
the according of transit to a shipment which under
the tariff should be "representative" of the inbound
movement, but which was not so "representative;"
according transit to shippers far in excess of their
transit credits; the permitting of retention of billing
after grain had been disposed of; the movement of
transit and non-transit articles in the same carload
without tariff authority therefor; the use of transit
after the expiration of time limit named in the tariffs ;
the using of expense bills covering grain destroyed
by fire on other grain ; the substitution of the products
of one kind of grain for the products of another kind
of grain; the according of transit privileges on non-
transit ingredients of mixed feeds; the illegal use
of surplus billing accumulated by reason of the dif-
ference between the actual weights and the minimum
weights of the inbound movement, also accumulated
by less than carload non-transit movements out, by
movements to non-transit points, by local consump-
tion, by movement out by water, by loss of grain in
transit, and by shrinkage; the plain substitution of
one grain for an entirely different grain; the move-
ment out, pound for pound, of products which could
not Iiave been derived from the inbound grain, and
with no allowance for offal ; and the palpable manipu-
—112—
latioii of billing and defeating the rates in cents per
100 pounds.
The Commission is thoroughly advised as to many
of the illegal practices in vogne and shall proceed to
take such action as the law provides for punishment
for and prevention of such unlawful practices.
The Transit Case, 24 I. C. C. Rep., 340 (1912).
COMMERCIAL CONDITIONS RENDER IT IMPOSSIBLE TO RE-
SHIP IDENTICAL COMMODITY.
161. The theory under which a transit privilege is
granted is that the inbound commodity will be sub-
jected to certain treatment and afterwards moved out
under the balance of the through rate. To express the
ideal — the identical commodity, in its original or other
commercial form, should move from the transit point.
But commercial conditions render this impossi-
ble, and we must therefore look for such regulations
as will subserve both the purposes of the act and of
our commerce. Manifestly such substitution as corn
of one color for that of another, of spring wheat for
winter wheat, or of other commodities analogous only
by their comprehension under a generic term, is in
accord neither with the spirit of the law nor the theory
under which transit is extended. However, it some-
times happens that grains of different kinds may
move into a transit point under the same transit
rates, and such commodities, after being there milled,
mixed, or otherwise subjected to treatment, move out
—113—
to their final destination on the balance of the through
rate which is the same for the mixed commodity as
would obtain had they moved separately.
Under these conditions the published rates are
in no wise defeated and no preference is extended to
one shipper over another. This we do not regard as
a substitution, and in our opinion the practice, if
properly policed, is not in contravention of the prin-
ciple of the act. Where a commodity must of neces-
sity lose its actual identity, as in the case of grain
going into an elevator, it would be absurd to say that
such identity must be preserved. Nor do we think
this view properly subject to such interpretation as
may be violative of the law, for it is incumbent alike
upon shippers and carriers to see that there is actu-
ally on hand at the transit point sufficient and proper
inbound tonnage to justify the outbound movement.
Ibid.
SUBSTITUTION UNDER CENTRAL FREIGHT ASSOCIATION GRAIN
RULES DISCUSSED.
162. Complaint has been made that sub-section (b)
of Rule 14 of Central Freight Association Transit
Circular can be so applied as to permit the manipu-
lation of expense bills. Sub-Section (b) is as follows:
(b) It is not expected that the identity of each
carload of grain or grain products can or will be
preserved in the process of milling or malting, but it
is not permissible to make any substitution that im-
—114—
pairs the integrity of the through rate; substitution,
however, is not accomplished under this rule when
grain or grain products are mixed or blended at the
transit point for milling or grading purposes and in-
bound billing covering carloads of the grain entering
into the blend is surrendered in the same ratio as was
observed in the l)lending, and the through rate (sub-
ject to Eule 10) applied from point of origin shown
on the inbound billing surrendered to destination of
the grain products. To illustrate: Ten carloads of
wheat may be shipped from three different rate ter-
ritories, say six cars of spring wheat from the
Dakotas, two cars of hard wheat from Kansas and two
cars of soft winter wheat from Illinois, mixed or
blended, may be forwarded in full carloads at the
through rate lawfully applicable from point of origin
of the wheat shown by corresponding inbound bill-
ing surrendered, as provided in rule Ko. 12, it being
understood that in the selection of inbound billing
to match against outbound shipments, shippers, mill-
ers or malsters will select six Dakota, two Kansas
and two Illinois representative inbound bills and not
select ten inbound bills from the lowest rate terri-
tory.
While we shall keep this protest and rule under
consideration, on the showing thus far made we do
not feel justified in condemning the rule at this time,
preferring to watch the result of its trial under a
rigid policing,
Supplemental Report in Transit case, 25 I. C. C.
Rep., 130 (1912).
-115—
XVI. POLICING.
CARRIER AND SHIPPER HELD ALIKE RESPONSIBLE FOR
ABUSES IN SUBSTITUTION.
163. The Commission does not condemn the transit
privileges as such, but holds that the responsibility for
safe-guarding and policing the transit privileges, to
the end that the lafully published rate shall be col-
lected, rests entirely upon carrier; shippers, however,
will not be excused in any case where they defeat
published rates by any abuse of transit privileges.
The duty of shippers to pay published rates is pre-
cisely the same as the duty of carriers to collect such
rates.
In the Matter of S^uhstitution of Tonnage in Tran-
sit, 18 I. C. C. Eep., 280 (1910).
DUTY OF SHIPPER TO SUBMIT TO POLICING.
161. It is the duty of shippers to submit to all neces-
sary policing of their shipments if they desire to enjoy
transit privileges, and they may also fairly be required
to certify that shipments offered by them are entitled
to go forward upon the transit rates.
Ibid.
-116-
DUTY OF COMMISSION TO SUPERVISE AND REGULATE.
165. These privileges had grown up, and the Commis-
sion found them in full vigor when the act to regulate
commerce became a law. In the earlier cases we hesi-
tated, in the absence of power to regulate transit, to
lend our approval to the practice. In fact, many
carriers and shippers insisted that the practice be
abolished altogether and that flat rates be substituted
in lieu thereof. However, today transit has become a
practice of such universal prevalence upon all the rail-
roads that it has become much the duty of this Com-
mission under the law as amended to supervise and
regulate these rules and practices as the rates, rules,
and practices generally of all interstate carriers.
The Transit Case, 24 I. C. C. Rep., 340 (1912).
TRANSIT RULES SHOULD BE UNIFORM.
166 . To the extent that undue preference exists today
in connection with the enjoyment of transit privileges,
such preference is due to the fact that the transit rules
themselves and the enforcement of these rules in one
territory are not what they are in others. In other
w^ords, varying constructions have been placed upon
the law in the promulgation of transit rules.
In one section of the country we find large com-
mercial interests subjecting themselves to transit reg-
ulations which have not been prescribed by the car-
riers but which have been voluntarily undertaken by
—117—
the shippers for the purpose of brinfjing their busi-
ness into conformity with the law.
Many of the great grain carrying roads of the
west, where the grain tonnage is very large, have left
the matter of transit privileges open to unlawful prac-
tices by the shipper in defiance of the law, and it may
be added that the investigations of the Commission
disclosed the existence of almost universal practices
in this territory.
The abolition of undue prejudice and unjust dis-
crimination could readily be accomplished by uniform
rules that would provide a minimum of restriction to
the transit privileges, the result of which would pro-
mote the very practices which the Commission seeks
to eradicate. The mandate of the law is plain. The
sole purpose of the transit rules is to so regulate and
police the application of the privilege that the aim
of the law shall not be defeated. We must look to the
transit rules which are tiled with the Commission
from the view point, and accordingly as they do or do
not accomplish their purpose, either in which they pro-
vide or fail to provide they must stand or fall.
Ibid.
COMMISSION'S RULES FOR POLICING.
167. Considering all the circumstances and conditions
appearing from the investigations of the Commission,
It is held, That the respondents shall be required to
establish rules for the policing of transit privileges on
—118 —
graiu and grain products which shall require — a. Cer-
tificate as to the transportation character of all grain
contained in a transit house; b. That a daily report
shall be furnished by the receiver of a transit privi-
lege which shall state the re(]uired information as to
the contents of a transit house, if any of said contents
is accorded a transit privilege; c. That there shall be
recorded with the policing authority of the carriers,
within a reasonable time after the shipments have been
received at transit point, all said expense bills ; d. That
all surplus billing shall be cancelled absolutely at the
close of each business day ; e. That the railroad billing
of the inbound and outbound movement shall describe
with sufficient particularity the commodity upon which
the transit privilege is accorded ; f . That the outbound
billing shall show full reference to the inbound billing;
g. That the transit privilege shall be limited absolutely
to one year, at the expiration of which time all privi-
leges shall cease and full local rate commodity or class,
both into aiul out of the transit point, shall apply; h.
That there shall be deducted an arbitrary loss in pro-
cess of milling wheat of not less than one per cent, of
the weight of the wheat; in the malting of barley of
not less than 16% of the weight of the barley; in the
drying of corn of not less than 10% of the weight of
the corn; in the shelling of corn of not less than 20%
of the Aveight of the corn ; and in the cleaning and clip-
ping of grains of not less than 11/2% of the weight of
the grain ; and i. That in according to the transit priv-
ilege upon the products of grain milled or treated in
transit, the policing authority shall be required to bal-
—119—
ance the outbound movement of the product against
the inbound movement of the grain upon the basis of
well known average ratios of the products of the grain.
This same general principle shall be applied to mixed
feed.
Ibid.
APPROVAL OF BUREAUS FOR POLICING PURPOSES.
168. At few of these bureaus an almost perfect check
is kept of the inbound and outbound shipments, excess
billing is cancelled daily, and daily and monthly re-
ports are required from the transit houses; through
others the system is not so thorough and leaves room
for much improvement. At points where there is not
sufficient business to justify the maintenance of an in-
dependent inspector, the agent of the carrier might also
act as the agent of the inspection bureau, but he should
be subject to the frequent check and constant super-
vision of the bureau. What we say in approval of the
inspection bureau system must not be understood as
transferring the responsibility of the carrier to the bu-
reau. We recognize the establishment of these bu-
reaus as agents of the carriers, in the discharge of a
duty imposed upon them by law.
Ibid.
169 . The lines in Trunk Line, Central Freight Associa-
tion and Southeastern and Mississippi Valley terri-
tories have adhered to or adopted the publication of
uniform rules and the delegation of policing to their
—120—
respective inspection bureaus thereby bringing about
more effective policing and uniformitj' of operation.
West of the Mississippi River an Inspection Bu-
reau has been in existence for several years, but its op-
eration is encumbered by so many diversified rules of
particular carriers, and so comx^lex and voluminous a
system of reporting, frequently differing with each line,
that the policing of transit tonnage is an absolute hard-
ship upon the shipper. Instead of reporting to one
inspection office, a grain dealer or miller is compelled
to report to each particular carrier, and upon forms or
blanks peculiar to such carrier. One miller, vihose
tonnage was handled by four different roads, was re-
quired to make approximately sixty reports each day.
The same conditions exist in the territory northwest
of Chicago, where, for the section as a whole, no bureau
whatever polices the transit. The carriers in these sec-
tions has subjected themselves to well merited criti-
cism for their failure Jointly to handle this feature of
transit in a uniform and intelligent manner, and we
are convinced that the shippers iu these sections are
entitled to relief. Where efficient transit bureaus are
in operation but a single report to a transit inspector
is required, and no complaint is heard. In our last
report we recommended the establishment of transit
bureaus, deeming this the most practicable method of
policing, making at once for simplicity, uniformity and
efficiency. It is but fair to say that better results can
be obtained through the medium of such an agency
interested more in the uniform application of rules
than the matter of railroad revenue or tonnage. More-
—121—
over, such an institution, properly constituted, is bet-
ter adapted to the disposition of new situations which,
at least for some time, will continue to arise.
Supplemental Report in Transit case, 25 I. C. C.
Rep., 130 (1912).
RECORDS.
170 . The records of the transit house, in so far as they
are subject to the transit rules, are railroad records as
defined in section 20 of the act, and are subject to the
control and inspection of both the respondent and the
Commission.
The Transit Case, 24 I. C. C. Rep., 340 (1912).
CERTIFICATES.
171 . It is our conclusion upon the record that the rules
shall provide that at the time of each shipment certifi-
cates shall be furnished by those shipping out of a tran-
sit house as to whether or not the commodity is en-
titled to a transit privilege, and also w^hether the com-
modity has or has not theretofore been accorded a tran-
sit privilege, and if any commodity entitled to a tran-
sit privilege has been mixed with the contents of a
transit house, such certificate shall be furnished as to
each and every shipment therefrom. This requirement
is vital for the proper application of both the inbound
and outbound rates, and also for the proper cancella-
tion of surplus billing.
Ibid.
—122—
DAILY REPORTS.
172 . Upon the basis of our investigations it is our opin-
ion that there shall be required a daily report from
the transit house to the policing authorities which
should show at the close of business each day a classi-
fication of receipts and shipments of the total move-
ment into and out of the transit house, if any of the
commodity contained therein is to be accorded the right
of transit. This report should show all tonnage han-
dled through the transit house as follows : All grain
and grain products handled, point of origin of the
grain and destination of the product, and whether re-
ceived or forwarded by rail, boat, wagon or otherwise,
which record must clearly show in pounds, separately ;
grain received by rail; grain received by boat; grain
received by wagon ; grain transferred from elevator to
mill; grain products forwarded by rail (local or non-
transit) ; gi\^in products forwarded by boat (local and
non-transit) ; grain products disposed of locally (by
rail or wagon) ; grain products forwarded by rail
(transit); grain products forwarded by boat (tran-
sit); grain products transferred; total tonnage on
hand.
Ibid.
173. In dealing with the question of reports we said
that transit houses should be required to report daily
the total in and out movement of all grain if any of it
were to be accorded a transit privilege. Instances
arise in wliich a transit house receives or ships several
—123— .
kinds of grain — say, wheat, corn and oats — but the
transit privilege applies only to wheat. In such cases
no report is necessary as to the corn and oats, but is
essential as to all wheat, whether transit or non-tran-
sit, handled through the house. In other words, the
daily report need cover only the commodity or com-
modities upon which a transit privilege is granted, but,
as to those commodities, must include both the tran-
sit and non-transit. Again, on days when the transit
house receives or ships no grain of a kind upon which
transit is accorded, and the report would be but a du-
plicate of that made for the preceding day, it will be
sufficient if the report merely state that fact. To this
extent our previous order is modified. Supplemental
report in Transit case, 25 I. C. C. Rep., 130 (1912).
EXPENSE BILLS.
174. It is our conclusion that it is necessai'y for the
rules to require that there shall be recorded with the
policing authorities all paid expense bills within a rea-
sonable time after the shipment has been received.
This record is further necessary in order to advise the
bureau of the transfer of tonnage from one transit
house to another.
Transit Case, 24 I. C. C. Rep., 340 (1912).
DAILY CANCELLATION OF BILLING.
175. It is our further conclusion that the rules must
require that the surplus billing, that is to say, all bill-
—124—
mg which does not represent grain actually on hand,
shall be cancelled absolutely at the close of each day.
This daily cancellation down to the basis of stock on
hand is vital and we shall insist on a literal adher-
ence thereto.
Ibid.
TIME LIMIT.
176 . Upon the facts disclosed of record in this case, we
are of the opinion and find that in order to prevent un-
lawful practices the tariffs shall contain a rule prohib-
iting the application of a transit privilege upon presen-
tation of expense bills after a period of twelve months
from the date of said expense bills.
The important thing in this connection, however,
is that the expiration of the time limit prescribed in
the tariffs means that the commodity has then become
localized; that all transit privileges accorded to the
commodity shall absolutely cease, and that full local
rates, commodity or class, shall be assessed for any
movement of the commodity whatsoever. Further-
more the rates theretofore collected upon the commod-
ity shall after the expiration of the stated period be
corrected to the basis of a movement wholly separate
and apart from any idea of associating said movement
with a transit privilege. In other words, the rates
shall then be the local rates both into and out of the
point of transit.
Ibid.
^^5—
WASTAGE.
177. The general average of the ratio of products that
may be derived from a given quantity of grain of a
particular kind when put through milling process is
well known, as was demonstrated upon the recent hear-
ings. The respondents and millers shall take due and
proper notice of these average ratios. From the neces-
sities of the case a certain amount of leeway must be
permitted in this regard which from our knowledge of
the situation we think contemporarily be left with the
policing authority, and we shall at this time refrain
from ordering in arbitrary divisions of grains into
products.
In order that this important feature of transit
shall not place undue restraint upon one section of the
country or operate to the disadvantage of the smaller
millers, and for the purpose of securing that unifor-m-
ity of regulation to which the milling industry of the
country as a whole is entitled and which it is our pres-
ent aim to substantially prescribe, we find that the re-
spondent shall be required to embody in their tariffs
a rule requiring the policing authority to daily balance
the outbound movement of products against the in-
bound movement of the grain upon the basis of the
well known average ratios of the products to the par-
ticular grain, the actual divisions to be balanced at
intervals not less than four times a year, cordially.
The millers will then know from the tarififs them-
selves that their billing will be cancelled to correctly
represent the weight of the grain from which the prod-
—126—
ucts could have been mauufactured, aud the responsi-
bility will then rest directly upon the policinf;: au-
thority.
Ibid.
178 . Complaint has been made that our order required
too j2,reat a percentage be deducted to cover the loss
incident to the drying of corn. The order makes no
final arbitrary deduction, but specifically provides that
the actual outturn of the grain shall be credited to the
miller in his transit account not less than four times
a year, quarterly, leaving it optional with the miller
and the carrier to make the actual balance monthly,
weekly or daily, as the exigencies of the particular
case may require.
Nothing was said in the order in connection with
the drying of wheat. It appears that some wheat is
of such a character that it is necessary to subject it to
a drying process, thereby entailing a loss in weight.
This loss can be taken care of by making the proper
deductions at the time of balancing the transit ac-
count, not less than four times a year, quarterly.
Where, after cleaning and the removal of screen-
ings, grain that has become mixed as in planting or
harvesting is put through a separating process, it was
found that the policing authorities could ascertain
from the records the actual result of the separation and
could credit the grains as separated against the rep-
resentative billing, permitting shipments to move out
properly described. Supplemental report on Transit
case, 25 I. C. C. Rep., 130 (1912).
—127—
MIXED FEED.
179 . We are of the opinion that the same general prin-
ciple as to the balancing of the material or grain ac-
count against the products moving from the transit
point shall apply uniformly to mixed feeds, based upon
a knowledge of the industry. This question of mixed
feeds has been recently passed upon in the Memphis
case decided concurrently herewith wherein it was
Held, That when a commodity was manufactured from
material more than 20% of which was of non-transit
material, it should no longer be entitled to a transit
privilege but should be considered as separate and
distinct commodity and take a rate specifically pre-
scribed therefor from the transit point. This disposi-
tion of the mixed feed question greatly simplifies the
application of transit thereto.
In assessing rates upon mixed feed to and from
the point of transit, it shall be proper to assess the
rates upon the portion of the tonnage lawfully entitled
thereto under the tariff upon the basis of the transit
privilege, and the balance, if the shipment moves in
carload quantities, may be assessed at the local car-
load rate from the transit point.
Transit Case, 24 I. C. C. Rep., 340 (1912). See
also Memphis Grain d Hay Assn. vs. St.
L. d San. Francisco R. R. Co. et al., 24 I.
C. C. Rep., 609 (1912).
—128—
DISSENTING OPINION PERTAINING MIXTURE TRANSIT AND
NON-TRANSIT COMMODITIES.
180 . Ill mj opinion many forms of transit are of bene-
fit and should be encouraged rather than discouraged^
and this is especially true of the milling of grain in
transit. Without wishing to enter upon any general
discussion of the subject I do desire to call attention
to one phase of the matter which should receive spe-
cial consideration in view of the present tendencies in
the making of rates on grain and grain products.
Carriers now maintain from several important
primary markets what are termed reshipping rates
upon grain and the products of grain. These rates are
based upon the assumption that the grain is moved by
rail into the point from which they apply, but no evi-
dence of that fact is required when the out movement
occurs, nor is any account taken of the point of origin
in applying the reshipping rate.
There can be no question that this system of rate
making offers many desirable features. It has been
approved by this Commission recently in two cases in
which such rates from Chicago and from St. Louis
were under consideration. We have recently sug-
gested that similar rates should be established at Mem-
phis and have ordered a rehearing of the case brought
by grain interests at Sioux City, Iowa, with a view of
putting in the same system of rates at that point.
It is evident, however, that such in and out rates
cannot be established at all small interior points at
—129—
which the millin.<i- industry is conducted, and the pres-
ent pi-actico is to provide for these points by the estab-
lishment of a milling in transit privilege. Kates are
so adjusted that from a given point of origin to a given
destination the through rate is the same as the sum of
the reshipping rates, so that the interior miller enjoys
in theory the same rate as does his competitor located
at a reshipping market.
While, however, this is so in theory, the interior
miller rests under certain serious disabilities, if the
transit rules in the past enunciatef\ by this Commis-
sion are to be rigidly adhered to.
There is often, and perhaps generally, a milling
in transit penalty which the miller at the reshipping
point does not pay, and there is also the inconvenience
of the va.dous policing regulations, which of necessity
are more or less burdensome.
But the real difficulty under which the interior
miller labors is in not being able to combine in the
same carload transit and non-transit stuff and in being
compelled to recognize in the use of transit both the
point of origin and the point of destination.
The producer of mixed feed at St. Louis, for exam-
ple, ships out the entire carload at the reshipping rate
which is applicable to the grain product, irrespective
of the source from which the various ingredients have
been obtained. The manufacturer of the same article
at some point between St. Louis and the seaboard mar-
ket can only apply his transit to a portion of the car-
-ISO-
load aud is obliged to pay, or rather has been obliged
to pay, the less than carload rate upon the non-transit
portion of the carload.
In grinding wheat the interior miller must send
approximately 70% along as flour and the balance as
offal, while at St. Louis the miller may send his flour
to one point and his offal to another, irrespective of
the kind of wheat which he grinds or the point from
which he obtains it.
The investigation of this Commission leave no
reasonable doubt that if reshipping rates are to be ap-
plied at the principal markets, and if strict rules of
transit like those in force today in the southeast are
to be maintained, the only possible result is to concen-
trate the milling industry at the primary market. This
in my opinion is neither a wise nor a just thing. As
an economic proposition I believe that rates of trans-
portation should be so adjusted that the small miller
at the interior point may operate under the same trans-
portation charge as does his competitor at the great
ciiy. Tliere is no reason in the transportation itself
which justifies different treatment, and it is for the
general interest of the country that industries should
be diffus( d latlier than unduly concentrated.
To this end it is necessary that the interior miller
should be permitted to do under transit in substance
what the miller at the large center can do under his
reshipping rates. This I believe can be accomplished
without discriminatioii and without injustice, and the
—131—
decisions of this body recently made go far in that
direction.
We have recently held in the '^ Southwestern" case,
decided concurrently herewith, that transit and non-
transit articles may be sent from the milling? point in
the same car at the carload rate. This permits the
interior miller to do precisely what the reshipping
miller does.
We hold in this proceeding- that the manufacturer
of mixed feed may have the benefit of transit upon the
transit portion and may pay the carload rate upon the
non-transit portion, provided of course that an entire
carload is shipped. This again is precisely what the
manufacturer of the same article at a reshipping point
can do.
In my opinion the same rule should be applied in
the grinding of wheat. No distinction should be made
in the out movement between the flour and the by
product. There should be an arbitrary reduction as
suggested in the opinion, from the weight of the wheat
to take care of the loss in milling, but when that is
provided for I do not think any question should be
made as to whether the out movement is flour or offal.
The miller should be permitted to ship his offal where
he will and his flour where he can best dispose of it at
whatever transit rate he may be able to use from his
in-billing.
This certainly does involve a possible substitution
of tonnage, and so does all milling in transit and all
—132—
elevation in transit which does not require that the
identity of the grain shall be preserved.
It will not, in my judgment result in harmful dis-
crimination or in defeating the published rates. In
actual result it is precisely what the miller at the re-
shipping point does, and his competitor at the interior
point must have the same privilege if he is to continue
to grind in competition.
This is a practical question which should be dealt
with in a practical and not in a theoretical way. The
rule as above stated has been universally observed in
the past, and the milling industry has grown up under
it. It ought not now to be changed, when the effect
of the change must be to drive the small miller out
of existence, unless there is some actual necessity for
the change.
So far as I am informed, the serious discrimina-
tion in the past has been at these important markets
like Chicago, St. Louis, etc., where the local consump-
tion is large and where surplus billing was readily
available. It has not been felt at the interior point.
If now the difficulty at the great center can be taken
care of, as I believe it should be by the reshipping
rate, then we may well allow at the small interior point
a more liberal rule than would otherwise be possible.
Dissenting opinion, Chairman Prouty.
Ihid.
^ —133—
MIXTURE NON-TRANSIT AND TRANSIT ASSISTS SMALL MILLS.
181 . Upon a re-examination of the question the appli-
cation, on a mixed carload shipment of grain or grain
products, of the proportional carload rate, or the bal-
ance of the through carload rate, to the transit por-
tion of the shipment, and of the flat carload rate to
the non-transit portion not found objectionable when
restricted by the tariff provisions suggested in the re-
port, and when the traffic is otherwise safeguarded by
the requirements of the rulings of the Commission re-
specting transit practices.
Such a rate adjustment is in the public interest
in that it enables small mills at small points to exist
and to reach the markets of consumption on a basis of
relative equality with the mills at larger points.
Soiithicesfern Millers League vs. Atchinson, To-
peha cC- Santa Fe Rimj. et al., 24 I. C. C. Eep.,
552 (1912).
-135—
XVII. CARRIER'S DUTY TO FURNISH CARS.
DUTY TO FURNISH EQUIPMENT RESTS UPON INBOUND CAR-
RIER.
182. Complainants ship a carload of corn from Omaha,
Neb., to Little Rock, to be there milled and roshipped
to Fordyce, Ark. Shipment moved under tariff nam-
ing through rate from Omaha to Fordyce via Argenta,
Ark., to which inbound and delivering carriers were
parties, in connection with a later tariff granting tran-
sit privileges at Little Rock, a point not on delivering
carrier's line. To this later tariff the delivering car-
rier was not a party. Both carriers refused to furnish
transportation equipment for the outbound movement
from Little Rock, each claiming that it was the duty
of the other to do so ; Held, That as delivering carriers
obligation, under the tariff to which it was a party,
does not accrue until delivery to its own rails. The
duty to furnish equipment for outbound movements
from complainant's mills rests upon the inbound car-
rier, the St. Louis, Iron Mountain & Southern Railway.
Brook-Rauch Mill d Elevator Company vs. St.
Louis Iron Mountain cC- Southern Railway Com-
pany et o?.. 21 I. C. C. Rep., C51 (1911).
Table of Cases Cited.
— ISO-
TABLE OF CASES CITED.
(References are to Paragraphs.)
Paragraphs
Amended section N'o. 6 59
American Warehouseman Assn. vs.
111. Cent. R. R. Co. et al. 7 ICC Rep. 556 (1898) 122
Anadarka Cotton Oil Co. et al. vs.
A. T. & S. F. Rwy. Co. et al. 20 ICC Rep. 43 (1910) 83
Anderson-Clayton Co. et al. vs.
C. R. I. & P. Rwy. Co. et al. 18 ICC Rep. 340 (1910) 38
St. L. & S. F. R. R. Co. et al. 17 ICC Rep. 12 (1909) 151
Atchinson et al. vs.
Mo. Pac. Rwy. Co. et al. 12 ICC Rep. Ill (1907) 114
12 ICC Rep. 254 (1907) 114
Bartlett Commission Co. vs.
111. Cent. R. R. Co. et al. 19 ICC Rep. 533 (1910) 75
Bash Fertilizer Co. vs.
Wabash R. R. Co. et al. 18 ICC Rep. 522 (1910) 44
Bayou City Rice Mills et al. vs.
Texas & New Orleans R. R. Co.
et al. 18 ICC Rep. 490 (1910) 90
Beekman Lumber Co. vs.
Kan. City Sou. Rwy. Co. et al. 17 ICC Rep. 86(1909) 69, 7Z, 119
St. L. S. W. Rwy. Co. et al. 14 ICC Rep. 532 (1908) 126
Blodgett Milling Co. vs.
C. M. & St. Paul Rwy. Co. et al. 2i ICC Rep. 448 (1912) 11, 95, 98
Board of Trade Kansas City vs.
C. B. & Q. R. R. Co. et al. 12 ICC Rep. 173 (1907) 74
Brook-Rauch Mill & Elevator Co. vs.
St. L. I. M. & S. Rwy. Co. et al. 21 ICC Rep. 651 (1911 182
Cady, H. F., Lumber Co. vs.
Mo. Pac. Rwy. Co. et al. 19 ICC Rep. 12 (1910) 147
Cavers Elevator Co. vs.
U. P. R. R. Co. 15 ICC Rep. 90(1909) 85
Cedar Hill Coal & Coke Co. et al. vs.
Colo. & Sou. Rwy. Co. et al. 16 ICC Rep. 387 (1909) 43, 120
15 ICC Rep. 546(1909) 74
Celina Mill & Elevator Co. vs.
St. L. S. W. R. R. Co. et al. 15 ICC Rep. 138 (1909) 71
—140—
Central Yellow Pine Assn. vs. . . ,„
V. S. & Pac. Rwy. Co. et al. 10 ICC Rep. 193 (1904) 4, 5, 18
39, 51, 52
57, 58
Chicag-o & Northwestern Railway
Company Suspension New Tran-
sit Regulations 25 ICC Rep. 90(1912) 96
Chikasaw Compress Co. vs.
Gulf Colo. & S. Fe Rr. Co. et al. 13 ICC Rep. 187 (1908) 89
Conference Rulings .,„„^. ,^
Bulletin No. 5 Rule No. 5 (1907) 12
Rule No. 6 (1907) 143
Rule No. 17 (1908) 8, 64
Rule No. 53 (1908) 140
Rule No. 72 (1908) 118, 121
Rule No. 11 (1908) 144
Rule No. 80 (1908) 138
Rule No. 114 (1908) 132
Rule No. 119 (1908) 128, 130
Rule No. 166 (1909) 143
Rule No. 181 (1909) 155
Rule No. 203 (1909) 154
Rule No. 214 (1907) 136
Rule No. 230 (1909) 136
Rule No. 348 (1912) 141
Rule No. 350 (1912) 152
Corn Belt Meat Producers Assn. vs.
C. B. & Q. R. R. Co. et al. 14 ICC Rep. 376 (1908) 100
Cotton, re, Unlawful rates and
Practices in Transit 8 ICC Rep. 121 (1899) 3, 35, 55
153
Cowan vs.
Bond 39 Fed. Rep. 55
2 ICC Rep. 542(1889) 2
Crews vs.
Richmond & Danville R. R. Co.
et al. 1 ICC Rep. 490 (1887) 1
1 ICC Rep. 703 (1888) II
Crowell Lumber & Grain Co. vs.
Union Pacific R. R. Co. 15 ICC Rep. 90 (1909) 85
Deeves Lumber Co. vs.
Alabama & Vicksburg Ry. et al. 25 ICC Rep. 42 (1912) \:>^
Diamond Mills vs.
Boston & Maine R. R. Co. 9 ICC Rep. 311 (1902) 21,34.50
65, 66
Douglas & Co. vs. ^^ ^^
C. R. I. & P. Rwy. Co. et al. 16 ICC Rep. 232 (1909) 6, 23, 45
21 ICC Rep. 97(1911) 46
21 ICC Rep. 541 (1911) 47
Duncan, W. S., & Co. et al. vs.
N. C. & St. L. Rwy. Co. et al. 16 ICC Rep. 590 (1909) 101
21 ICC Rep. 186(1911) 106
—141—
Elevators
Re, Allowances to
12 ICC Rep. 86(1907)
24 ICC Rep. 197(1912)
37
78
Folmer & Co. vs.
Gt. Nor. Rviry. Co.
15 ICC Rep. 33 (1909)
147
Gulf, Colo. & Santa Fe Rwy. Co. vs.
Texas
Hanley Milling Co. vs.
Penna. Co. et al.
Hecker-Jones-Jewel Milling Co. vs.
B. & O. R. R. Co. et al.
Henderson Elevator Co. vs.
111. Cent. R. R. Co.
Howard Mills Co. vs.
Mo. Pac. Rwy. Co. et al.
204 U.S. 403; 51 L. ed.
540;27Sup. Ct. Rep.
360 Affirming
97 Texas 274;
78 S. W. 495 (1907)
19 ICC Rep. 475 (1910)
14 ICC Rep. 356(1908)
17 ICC Rep. 573 (1910)
12 ICC Rep. 258 (1907)
26
123
44, 81, 82
103, 111
102
54, 96
Indianapolis Freight Bureau vs.
C. C. C. & St. L. Rwy. Co. et al. 15 ICC Rep. 370 (1909)
Interstate Commerce Commission vs.
H. J. Diffenbaugh et al.
F. H. Peavey & Co.
Interstate Commerce Commission vs.
Goodrich Transit Company
Interstate Commerce Commission vs.
Stickney
Interstate Remedy Co. vs.
American Express Co.
222 U. S. 42, 56 L. ed.
(1911)
28, 30, 77
224 U. S. 194 (1912)
32
215 U. S. 98 Affirming
164 Fed. Rep. 638 (1909)
30
16 ICC Rep. 436 (1909)
142
Johnson & Co. et al. vs.
A. T. & S. F. Rwy. Co. et al.
Kansas City Hay Co. vs.
St. L. & S. F. R. R. Co.
Kehoe, T. M., & Co. vs.
111. Cent. R. R. Co.
Kile & Morgan vs.
Deepwater Rwy. Co. et al.
21 ICC Rep. 637(1911) 91, 95
14 ICC Rep. 631 (1908) 76, 147
14 ICC Rep. 541 (1908) 145
15 ICC Rep. 235 (1909) 137,147
-142-
Klyce, Henry A., Co. vs.
111. Cent R. R. Co. et al. 19 ICC Rep. 567 (1910) 157
^^''Penna. R. R. Co. et al. 10 ICC Rep. 675 (1905) 40, 48. 84
87, 88, 112
Laurel Cotton Mills vs.
Gulf & Ship Island R. R. Co. 84 Miss. 339; 37 So. 134;
^ 66 L. R. A. 453 (1904) 53
Listman Mill Co. vs. .„„„. ,. ,,^
C M. & St. P. Rwy. Co. et al. 8 ICC Rep. 47 (1898) 16, 116
117, 127
Lucas, J. R., & Co. vs.
L. & N. R. R. Co. 19 ICC Rep. 533 (1910) 7o
Memphis Freight Bureau et al. vs.
St. Louis & San Francisco R. R. Co. 24 ICC Ren. 602 (1912) 15
Memphis Grain & Hay Assn. vs.
St. L. & S. F. R. R. Co. et al. 21 ICC Rep. 609 (1912) 179
Merriam & Holmquist vs. ,„„^,
Union Pacific Rwy. Co. 16 ICC Rep. 337 (1909) 29
Milling In Transit Rates
In Re 17 ICC Rep. 113 (1909) 128, 129, 130
Mobile & Ohio R. R. Co.
Re, Rates and Practices of 9 ICC Rep. 373 (1903) 7, 36. 56
Muskogee, Commercial Club & Traf.
Bureau vs. M. K. & T. Rwy. Co. 12 ICC Rep. 312 ( 1907) 21. 99
National Wool Growers Assn. vs.
O S. Line R. R. Co. et al. 22> ICC Rep. 151 (1912) 10, 14, 19
31, 75. 109
National Lumber Co. vs.
San Pedro, Los Angeles & Salt
Lake R. R. Co. 15 ICC Rep. 434 (1909) 147
Nebraska-Iowa Grain Co. vs.
Union Pacific Rwy. Co. 15 ICC Rep. 90(1909) 85
Paducah Cooperage Co. vs.
N. C. & St. L. Rwy. Co. 22 ICC Rep. 226 (1912) 93
Pauls Valley Compress & Storage Co.
vs. G. C. & S. F. Rwy. Co. et al. 13 ICC Rep. 187 (1908) 89
Piano Milling Co. vs.
St. L. S. W. Rwy. Co. et al. 22 ICC Rep. 360 (1912) 94
Quimby, S. S., et al. vs.
Maine Central R. R. Co. et al. 13 ICC Rep. 246 (1908) 97
—143-
Railroacl Commission of Oregon vs.
O R. R. & Nav. Co. et al. 23 ICC Rep. 151 (1912) 10, 14, 19
31, 75, 109
Red River Oil Co. vs.
Texas & Pac. Rwy. Co. et al. 23 ICC Rep. 438 (1912) 12
Roberts Cotton Oil Co. vs.
III. Cent. R. R. Co. et al. 21 ICC Rep. 248 (1911) 92
St. Louis Hay & Grain Co. vs.
C. B. & Q. R. R. Co. et al. 11 ICC Rep. 82(1905) 25
111. Cent. R. R. Co. et al. 11 ICC Rep. 486 (1905) 124, 125
M. & O. R. R. Co. et al. 11 ICC Rep. 90(1905) 42, 66, 67
214 U. S. 297 68, 81, 113
M. & O. R. R. et al. 19 ICC Rep. 533 (1910) 75
St. Louis Millers Assn.
In Re 1 ICC Rep. 22(1887) 20
St. Louis Traffic Bureau vs.
C. B. & O. R. R. Co. et al. 14 ICC Rep. 551 (1908) 13
22 ICC Rep. 496 (1912) 79
62, 63
82, 147
Shiel & Co. vs.
111. Cent. R. R. Co. et al. 12 ICC Rep. 210 (1907) 61, 62, 63
Smith & Co. Ltd. vs.
Oregon Short Line R. R. Co. et al. Unreported opinion 670,
(1912) 150
Southern Illinois Millers Assn. vs.
L. & N. R. R. Co. et al. 21 ICC Rep. 672 (1912) 110, 158
Southern Railway Co. vs.
St. Louis Hay & Grain Co. 214 U. S. 297, S3 L. ed.
1004. 29 Sup. Ct. 678
(1909) 68
Southwestern Millers League vs.
Atchinson, Topeka & Santa Fe
Rwy. et al. 24 ICC Rep. 552 (1912) 181
Spiegle, Geo. M., & Co. et al. vs.
Southern Rwy. Co. 19 ICC Rep. 522 (1910) 105
25 ICC Rep. 71 (1912) 75
State E.x. Infr. Crow vs.
A. T. & S. F. Rwy. Co. 176 Mo. 687; 75 S. W.
776; 63 L. R. A. 761
(1903) 24
Stott vs.
Mich. Cent. R. R. Co. et al. 18 ICC Rep. 582 (1910) 41, 103
Substitution of Tonnage at Transit
Pts., In Re 18 ICC Rep. 280 (1910) 156. 163, 164
Suffern Grain Co. vs.
111. Cent. R. R. Co. et al. 22 ICC Rep. 178 (1911) 104
Sunnyside Coal Mining Co. vs.
D. & R. G. R. R. Co. et al. 16 ICC Rep. 558 (1909) 146
-144—
Tap Line Case
Tariff Circular 18-A
Through Rates and Through Routes
In Re
Traffic Bureau, Merchants Exchange
of St. Louis vs. C. B. & Q. R. R.
Co. et al.
Transit Case — Original Report
Supplemental Report
Traugott Schmidt & Sons vs.
Mich. Cent. R. R. Co. et al.
23 ICC Rep. 277 (1912) 108
Rule No. 10 60
Rule No. 67 131, 132, 133
134, 135
Rule No. 74 70, 118, 121
Rule No. 76 154
12 ICC Rep. 163 (1907) 80, 128, 139
14 ICC Rep. 551 (1908) 13
22 ICC Rep. 496 (1912) 79
24 ICC Rep. 340(1912) 32, 160, 161
165, 166, 167
168, 170. 171
172, 174, 175
176, 177, 179
180
25 ICC Rep. 130(1912) 142, 159, 162
169, 173, 178
19 ICC Rep. 535 (1910)
49
Union Pacific R. R. Co. vs.
F. H. Peavey & Co.
Union Pacific R. R. Co. vs.
Updike Grain Co. & Crowell
Lumber & Grain Co.
Updike Grain Co. vs.
Union Pacific R. R. Co.
222 U. S. 42, 56 L. ed.
(1911) 13,28,30,77
222 U. S. 48, 52 L. ed.
(1911)
15 ICC Rep. 90(1909)
86
85
Van Natta Bros, et al. vs.
C. C. C. & St. L. Rwy. Co. et al. 23 ICC Rep. 1 (1912)
107
Washer Grain Co. vs.
Mo. Pac. Rwfy. Co.
Wichita, Kansas vs.
A. T. & S. F. Rwy. Co. et al.
Wood, Mosaic Flooring & Lumber
Co. vs. L. & N. R. R. Co.
15 ICC Rep. 147 (1909)
9 ICC Rep. 534(1903)
22 ICC Rep. 458(1912)
28
lis
149
Young & Cutsinger vs.
L. & N. R. R. Co.
22 ICC Rep. 1 (1911)
148
Act to Regulate Commerce
(Including Interpretations thereon Pertaining to
Transit Privileges)
—147—
ACT TO REGULATE COMMERCE
Approved Feb. 4, 1887; amended March 2, 1889; Feb. 10, 1891 ;
Feb. 8, 1895; Jime 29, 1906, and June 18, 1910.
Be it enacted by the Senate mid the House of Representa-
tives of the United States of America in Congress assembled,
Section 1. That the provisions of this Act shall apply to
any corporation or any person or persons engaged in the trans-
port-ation of oil or other commodity, except water and except
natural or artificial gas, by means of pipe lines, or partly by
pipe lines and partly by railroad, or partly by pipe lines and
partly by water, and to telegraph, telephone and cable com-
panies (whether wire or wireless) engaged in sending messages
from one state, territory or district of the United States, to
any other state, territory or district of the United States, or to
any foreign country, who shall be considered and held to be
common carriers within the meaning and purpose of this Act,
and to any common carrier or carriers en-
Corporations or gaged in the transportation of passengers or
To' Ac"' ^"^^''' property wholly by railroad (or partly by
railroad and partly by water, when both are
used under a common control, management, or arrangement
for a continuous carriage or shipment), from one State or Ter-
ritory of the United States or the District of Columbia, to any
other State or Territory of the United States or the District
of Columbia, or from one place in a territory' to another place
in the same Territory, or from any place in the United States
to an adjacent foreign country, or from any place in the United
States through a foreign country to any other place in the
United States, and also to the transportation in like manner
of property shipped from any place in the United States to a
foreign country and carried from such place to a port of trans-
shipment, or shipped from a foreign country to any place in
—148—
the United States and carried to such place from a port of
entry either in the United States or an adjacent foreign
country: Provided^ however. That the provisions of this
Act shall not apply to the transportation of passengers or prop-
erty, or to the receiving, delivering, storage, or handling of
property wholly within one State and not
Intrastate sliij)p(Ml to or from a foreign country from
Transportation.! ^v to any State or Territory as aforesaid,
nor shall they apply to the transmission of
messages by telephone, telegraph or cable wholly within one
state and not transmitted to or from a foreign country from or
to any state or territory as aforesaid.
The term "common carrier" as used in this Act shall in-
clude express companies and sleeping car companies. The term
"railroad" as used in this Act shall include all bridges and fer-
ries used or operated in connection with any railroad, and also
all the road in use by any corporation operating a railroad,
whether owned or operated under a con-
Term "Railroad" tract, agreement, or lease, and shall also in-
Includes— chide all switches, spurs, tracks and ter-
minal facilities of every kind used or neces-
sary in the transportation of the persons or property desig-
nated herein, and also all freight depots, yards and grounds
1 The opinions of the Federal Courts have been consonant with the
rulings of the Commission as to what traffic is under the jurisdiction of
the Commission. A railroad lying wholely within the state, transacting
business solely on local bills of lading, limited to its own line, and not
party to a through interstate contract of transportation, although such
business originated without the state, is not within the purview of the act
and not required to make reports of its traffic to the Federal Commission.
In the case of the Goodrich Transit Company, 224 U. S., 194, the Supreme
Court decided, sustaining the Commission, and reversing the Commerce
Court, that Congress did not exceed its power under the commerce clause
by enacting the act of February 4, 1887, 20, as amended by the act of June
29, 1906, under which common carriers by water upon the Great Lakes,
engaged in the transportation of passengers and property partly by water,
under a joint arrangement for the continuous carriage or shipment, may
ibe irequired by the Interstate Commerce Commission to adopt a uniform
system of accounting and bookkeeping, and to make annual reports, which
shall embrace not only the joint rail and water business, but the other
;business of the carriers as well, such as their port to port business, both
intrastate and interstate.
Subsequent to this decision the Commission in the Transit Case 24,
I. C. C. Rep., 340 (1912), ruled that they may require a strict accounting
not only of interstate transit and non-transit tonnage, but local intrastate
tonnage as well. (Paragraph 32.)
—149—
used or necessary in the transportation or delivery of any of
said property; and the term "transporta-
Term2 ^^ tion" shall include cars and other vehicles
Me?ns— °'^*^**°" ^^^ ^^^ instrumentalities and facilities of
shipment or carriage, irrespective of owner-
ship or of any contract, express or implied, for the use thereof,
and all services in connection with the receipt, delivery, eleva-
tion and transfer in transit^ ventilation^ refrigeration or icing,
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; and to provide reasonable
facilities for operating such through routes and to make rea-
sonable rules and regulations with respect to the exchange, in-
terchange and return of cars used therein, and for the opera-
tion of such through routes, and providing for reasonable com-
pensation to those entitled thereto.
All charges made for any service rendered or to be ren-
dered in the transportation of passengers or property and for
the transmission of messages by telegraph, telephone or cable,
as aforesaid, or in connection therewith, shall be just and rea-
sonable; and every unjust and unreasonable charge for such
service or any part thereof is prohibited and declared to be un-
lawful: Provided, that messages by telegraph, telephone or
cable, subject to the provisions of this Act, may be classified
into day, night, repeated, unrepeated, letter, commercial, press,
government, and such other classes as are
All Charges Shall be jnst and reasonable, and different rates may
Re^asonable.3 ^^ charged for the different classes of mess-
ages; and provided further, that nothing in
this Act shall be construed to prevent telephone, telegraph and
2 The Supreme Court in the Dififenbaugh and Peavy cases, 222 U. S..
42 (1911), decided that the elevation and transfer in transit of grain with
such storage as may be incidental thereto is part of the transportation
service. The charges therefor must be pubHshed in like manner as all
other charges and are subject to the same restrictions as to reasonableness,
non-discriminatory and not being unduly preferential.
3 In the matter of charges to be exacted by the carrier for the privi-
lege of allowing commodities to be stopped in transit, the Commission orig-
inallj- decided that the charge should not be more than the actual cost to
—150—
cable companies from eiitoiin<; into contracts witli common
carriers for the excliange of services.
And it is hereby made the duty of all common carriers
subject to the provisions of this Act to establish, observe and
enforce just and reasonable classifications of property for trans-
portation, with reference to which rates, tariffs, retaliations, or
practices are or may be made or prescribed, and just and rea-
sonable regulations and practices affecting
All Classifications classifications, rates, or tariffs, the issuance,
Reasonable'* ^"'^ f^i-^' ^^^^ substance of tickets, receipts, and
bills of lading, the manner and method of
presenting, marking, packing and delivering pi'operty for trans-
portation, the facilities for transportation, the carrying of per-
sonal, sample and excess baggage, and all other matters relat-
ing to or connected with the receiving, handling, transporting,
storing and delivery of property subject to the provisions of
this Act which may be necessary or proper to secure the safe
and prompt receipt, handling, transportation and delivery of
property subject to the provisions of this Act upon just and rea-
sonable terms, and every such itnjust and unreasonahle classi-
fication, rprfuJaiion and praclicr irith reference to commerce^
between the states and with foreign countries is prohibited and
declared to be unlawful.
No common carrier subject to the provisions of this Act
shall, after January first, nineteen hundred and seven, directly
or indirectly, issue or give any interstate free ticket, free pass,
or free transportation for passengers, except
Free Passes to its employes and their families, its oflfi-
Prohibited. cers, agents, surgeons, physicians, and attor-
neys at law; to ministers of religion, travel-
ing secretaries of railroad Young Men's Christian Associations,
inmates of hospitals and charitable and eleemosynary institu-
tions, and persons exclusively engaged in charitable and elee-
mosynary work; to indigent, destitute, and homeless persons,
the carrier. The Supreme Court, 214 U. S. 297, later decided that a carrier
which is at service and expense in stopping goods in transit, for inspection
and reloading for the benefit of the shipper, is entitled to compensation m
addition to the actual expense incurred. The reasonableness of the charge
for such service is covered under caption VIII. Charges for Allowance
of Privilege.
4 See Note H. pertaining to section 15, page 169 infra.
,4
—151—
and to such persons when transported by charitable societies
or hospitals, and the necessary agents employed in such trans-
portation; to inmates of the National Homes or State Homes
for disabled Volunteer Soldiers, and of Soldiers' and Sailors'
Homes, including those about to enter and those returning after
discharged; to necessary care takers of live
Exceptions to Free stock, poultrj^ milk and fruit; to employees
Passes. on sleeping cars, express cars, and to line-
men of telegraph and telephone companies ;
to Railway Mail Service employees, postoffice inspectors, cus-
toms inspectors, and immigration inspectors; to newsboys on
trains, baggage agents, witnesses attending any legal investi-
gation in which the common carrier is interested, persons in-
jured in wrecks and physicians and nurses attending such per-
sons : Provided, That this provision shall not be construed to
prohibit the interchange of passes for the officers, agents and
employees of common carriers, and their families; nor to pro-
hibit any common carrier from carrying passengers free with
the object of providing relief in cases of general epidemic,
pestilence, or other calamitous visitation ; and provided further,
that this provision shall not be construed to prohibit the privi-
lege of passes or franks, or the exchange thereof with each
other, for the officers, agents, employees, and their families of
such telegraph, telephone and cable lines, and the officers,
agents, employees and their families of other common carriers
subject to the provisions of this Act. Provided, further. That
the term "employees" as used in this paragraph shall include
furloughed, pensioned, and superannuated employees, persons
who have become disabled or infirm in the service of any such
common carrier, and the remains of a person killed in the em-
ployment of a carrier and ex-employees traveling for the pur-
pose of entering the service of any such common carrier; and
the term "families" as used in this paragraph shall include the
families of those persons named in this proviso, also the fam-
ilies of persons killed, and the widows during widowhood and
minor children during minority of persons who died, while in
the service of any such common carrier. Any common carrier
violating this provision shall be deemed guilty of a misde-
meanor, and for each offense, on conviction, shall pay to the
— 152—
United States a penalty of not loss than one hundred dollars
nor more than two thousand dollars, and any person, other
than the persons excepted in this provision, who uses any such
interstate free ticket, free pass, or free transportation, shall be
subject to a like penalty. Jurisdiction of offenses under this
provision shall be the same as that provided for offenses in an
Act entitled "An Act to further regulate commerce with for-
eign nations and among the States," approved February nine-
teenth, nineteen hundred and three, and any amendment
thereof.
From and after May first, nineteen hundred and eight, it
shall be unlawful for any railroad company to transport from
any State, Territory, or the District of Co-
Transportation of lumbia, to any other State, Territory, or the
Commodities Owned District of Columbia, or to anv foreign
by Transportation . , ' ^V, ,,
Companies. country, any article or commodity, other
than timber and the manufactured products
thereof, manufactured, mined, or produced by it, or under
its authority, or which it may own in whole or in part, or in
which it may have any interest, direct or indirect, except such
articles or commodities as may be necessary and intended for
its use in the conduct of its business as a common carrier.
Any common carrier subject to the provisions of this Act,
upon application of any lateral, branch line of railroad, or of
any shipper tendering interstate tralfic for transportation, shall
construct, maintain, and operate upon reasonable terms, a
switch connection with any such lateral,
Carriers Shall branch line of railroad, or private side track
Construct, Maintain ,f^]^[(.\^ j^iav be constructed to connect with
and Operate Switch ^ , • •
Connections. its railroad, where such connection is rea-
sonably practicable, and can be put in with
safety and will furnish sufficient business to justify the con-
struction and maintenance of the same; and shall furnish cars
for the movement of such traffic to the best of its ability with-
out discrimination in favor of or against any such shipper. If
any common carrier shall fail to install and operate any such
switch or connection as aforesaid, on application therefor in
writing by any shipper or owner of such lateral, branch line
of railroad, such shipper or owner of such lateral, branch line
—153—
of railroad may make complaint to the Commission, as provided
in section thirteen of this Act, and the Commission shall hear
and investigate the same and shall determine as to the safety
and practicability thereof and justification and reasonable com-
pensation therefor, and the Commission may make an order as
provided in section fifteen of this Act, directing the common
carrier to comply with the provisions of this section in accord-
ance with snch order, and such order shall be enforced as here-
inafter provided for the enforcement of all other orders by the
Commission, other than orders for the payment of money.
Section 2. That if any common carrier subject to the pro-
visions of this Act shall, directly or indirectly, by any special
rate, rebate, drawback, or other device, charge, demand, collect,
or receive from any person or persons a greater or less com-
pensation for any service rendered, or to be rendered, in the
transportation of passengers or property, subject to the provi-
sions of this Act, than it charges, demands, collects, or receives
from any other person or persons for doing
Unjust 5 for him or them a like and contemporane-
Discrimination ^^g service in the transportation of a like
Declared to Be
Unlawful. kind of traffic under substantially similar
circumstances and conditions, such common
carrier shall be deemed guilty of unjust discrimination, which
is hereby prohibited and declared to be unlawful.
5 Section 2 deals with discrimination in the matter of rates, and
applies therefore more strictly to discrimination between shippers of traf-
fic similar from a transportation and commercial standpoint. Section 3
prohibits unjust discrimination and undue and unreasonable preferences or
advantages accorded by the carriers to certain favored localities or between
particular kinds of traffic. Therefore under the prohibition in section 2
the carrier in granting a milling in transit privilege must not discriminate
between shippers of the same commodity. This matter is discussed under
caption X, pertaining to discrimination between shippers. The privilege
when allowed must be extended to all shippers alike: Shiel & Co. vs. I. C.
C. R. R. Co.— 12 I. C. C. Rep., 210 (1907). As there is a limit however to
products that can be reasonably milled in transit, if the particular product
of a certain raw material is granted transit privilege it does not follow that
all the products of the same raw material must be accorded the transit
privilege. To constitute discrimination in the ratings of a particular article
the elements of classification must be similar — see Douglas & Co. vs. C. R.
I. & P. Rwy. Co., 16 I. C. C. Rep., 232 (1909), where the Commission
decided that a carrier may withhold the transit privilege from different
products of the same raw material where the finished products and the
conditions surrounding the commerce or transportation thereof are dis-
similar.
— 154--
Section 3. Tliat it shall be unlawful for any common car-
rier subject to the provisions of this Al-I to make or give any
undue or unreasonable preference or ad-
Unreasonable vantage to anv particular person, company,
fo'BrUnTawful!"'^ tti"^. corporation, or locality, « or any par-
ticular description of traffic, ' in any respect
whatsoever, or to subject any particular person, company, firm,
corporation, or locality, or any particular description of traffic,
to any undue or unreasonable prejudice, or disadvantage in
any respect whatsoever.*^
Every common carrier subject to the provisions of this
Act shall, according to their respective powers, afford all rea-
sonable, proper, and equal facilities for the interchange of traf-
fic between their respective lines, and for the receiving, forward-
ing, and delivering of passengers and property to and from
their several lines and those connecting therewith, and shall
not discriminate in their rates and charges between such con-
necting lines; but this shall not be construed as requiring any
6 As has been noted, section 2 deals principally with discrimination
in the matter of freight rates on like commodities: section 3 is more com-
prehensive, in that it prohibits unjust discrimination or undue or unreason-
able preference to any particular person, locality or kind of trafiic. In the
case of Crews vs. Richmond and Danville R. R. Co., 1 1. C. C. Rep.. 490
(1887), the Commission in construing this section questioned the legality
of a carrier granting a privilege to mill a commodity in transit to one town
on its line and denying it to others. They refrained however from ex-
pressing an opinion, but stated that the concession might not unlikely be
followed by litigation. The Commission said later in Koch vs. P. R. R. Co.
et al., 10 I. C. C^Rep., 675 (1905), that the granting of milling in transit
privileges to one territory and denying such privileges to another territory
is not necessarily unlawful. As to what constitutes undue discrimination
or unreasonable preference between shippers and localities, see caption
X and XI.
7 In the matter of undue preference to a particular description of traf-
fic in the Hecker Jones Jewel Milling Co. case, 14 I. C. C. Rep., 356 (1908),
affirmed 168 Fed. Rep., 131, (Paragraph 111), the Commission decided that
complainant, whose mill is located in the City of New York, is not entitled
to the export rate upon grain from the west which it grinds into export
flour: but it is entitled to the same rate upon the grain which it subsequently
grinds into export flour that defendants accord to interior mills upon export
flour. In other words it was unduly preferential to accord a lower rate on
the finished product than on the raw material out of which the flour is
made for export.
8 Undue preference in the matter of allowances for the elevation of
grain in transit is covered by the Diffenbaugh & Peavy cases, 222, U. S., 42
(1911), cited in paragraphs 28. 30 and 77.
—155—
such common carrier to give the use of its tracks or terminal
facilities to another carrier engaged in like business.
Section 4. That it shall be unlawful for any common
carrier subject to the provisions of this Act to charge or receive
any greater compensation in the aggregate for the transporta-
tion of passengers, or of like kind of property, for a shorter
than for a longer distance over the same line
Long and or route in the same direction, the shorter
Short Haul. being included within the longer distance,
or to charge any greater compensation as a
through route than the aggregate of the intermediate rates
subject to the provisions of this Act ; but this shall not be con-
strued 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 appli-
cation to the Interstate Commerce Commission such common
carrier may in special cases after investigation be authorized
by the Commission to charge less for longer than for shorter
distances for the transportation of passengers or property ; and
the Commission may from time to time prescribe the extent to
which such designated common carrier may be relieved from
the operation of this section : Provided, 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 lof this section prior to the expiration of six
months after the passage of this Act, nor in any case where ap-
plication shall have been filed before the Commission in accord-
ance with the provisions of this section, until a determination of
such application by the Commission.
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
Water Route. points, it shall not be permitted to increase
such rates unless after hearing by the Inter-
state Commerce Commission it shall be found that such pro-
posed increase rests upon changed conditions other than the
elimination of water competition.
—156—
Section 5. That it shall )»' niilawful for any common car-
rier subject to the provisions of this act to enter into any con-
tract, ag^reement, or combination with any
"Pooling and other common carrier or carriers for the
Divisions." pooling of freijjjhts of diiferent and compet-
ing railroads, or to divide between them the
aggregate or net proceeds of the earnings of such railroads,
or any portion thereof; and in case of an agreement for the
pooling of freights as aforesaid, each day of its continuance
shall be deemed a separate offense.
Section G. That every common carrier subject to the pro-
visions of this Act shall file with the Commission created by
this Act and print and keep open to public inspection schedules
showing all the rates, fares, and charges for transportation
between different points on its own route and between points
on its own route and points on the route of any other carrier
by railroad, by pipe line, or by water when a through route
and joint rate have been established. If no joint rate over the
through route has been established, the sev-
Filing and qyslI carriers in such through route shall file,
Posting Schedules . , , , , it- ,•
and Rules.o print and keep open to public inspection, as
aforesaid, the separately established rates,
fares, and charges applied to the through transportation. The
schedules printed as aforesaid by any such common carrier
shall plainly state the places between which property and pas-
sengers will be carried, and shall contain the classification of
freight in force, and shall also state separately all terminal
charges, storage charges, icing charges, and all other charges
which the Commission may require, all privileges or facilities
granted or allowed and any rules or regulations which in any
wise change, affect, or determine any part or the aggregate of
such aforesaid rates, fares, and charges, or the value of the
service rendered to the passenger, shipper, or consignee. Such
schedules shall be plainly printed in large type, and copies for
the use of the public shall be kept posted in two public and con-
spicuous places in evci y depot, station, or office of such carrier
'■^ This section was substantially rewritten by the amendment of 1906 —
the matter of publication of transit privileges is embraced under section
VII. Publication Condition Precedent to Legality.
—157—
where passengers or freight, respectively, are received for trans-
portation, in such form that they shall be accessible to the pub-
lie and can be conveniently inspected. The provisions of this
section shall apply to all traffic, transportation, and facilities
defined in this Act.
Any common carrier subject to the provisions of this Act
receiving freight in the United States to be carried through a
foreign conntry to any place in the United States shall also in
like manner print and keep open to public inspection, at every
depot or office where such freight is received for shipment,
schedules showing the through rates estab-
Freight, Foreign lished and charged by such common carrier
Country. to all points in the United States l)eyond
the foreign country to which it accepts
freight for shipment ; and any freight shipped from the United
States through a foreign country into the United States the
through rate on which shall not have been made public, as re-
quired by this Act, shall, before it is admitted into the United
States from said foreign country, be subject to customs duties
as if said freight were of foreign production.
Xo change shall be made in the rates, fares, and charges,
or joint rates, fares, and charges, which have been filed and
published by any common carrier in compliance with the re-
quirements of this section, except after thirty days' notice to
the Commission and to the public, published as aforesaid, which
shall plainly state the changes proposed to
j^Totjce. be made in the schedule then in force and
Chance of Rates. the time when the changed rates, fares, or
charges will go into effect ; and the proposed
changes shall be shown by printing new schedules, or shall be
plainly indicated upon the schedules in force at the time and
kept open to public inspection: Provided, That the Commis-
sion may, in its discretion and for good
Commission May cause shown, allow changes upon less than
Modify. the notice herein specified, or modify the re-
quirements of this section in respect to pub-
lishing, posting, and filing of tariffs, either in particular in-
stances or by a general order applicable to special or peculiar
circumstances or conditions.
.___ —158 —
The nainos of the several carriers which are parlies to any
joint tarifl' sliall be specified therein, and each of the parties
thereto, other than the one filing the same, shall file with the
Commission snch evidence of concnrrence
Joint Tariffs. therein or acceptance thereof as may be re-
quired or approved by the Commission, and
where snch evidence of concnrrence or acceptance is filed it
shall not be necessary for the carriers filing the same to also
file copies of the tariffs in which they are named as parties.
Every common carrier subject to {his Act shall also file
with said Commission copies of all con-
Copy Contracts tracts, agreements, or arrangements with
to Be Filed. other common cariiers in relation to any
traffic affected by the provisions of this Act
to which it may be a party.
The Commission may determine and prescribe the form in
which the schedules required by this section to be kept open to
public inspection shall be prepared and arranged and may
change the form from time to time as shall be found expedient.
No carrier, unless otherwise provided by this Act, shall
engage or participate in the transportation of passengers or
property, as defined in this Act, unless the rates, fares, and
charges upon which the same are transported by said carrier
have been filed and published in accordance with the provisions
of this Act ; nor shall any carrier charge or demand or collect
or receive a greater or less or ditt'erent compt'usation for such
transportation of passengers or property, or
Not to Deviate i'» foi- ^xij service in connection therewith, be-
RatM.^^^'^^^"^ t ween 'the points named in such tariffs than
the rates, fares, and charg(^s Avhich are spe-
cified in the tariff filed and in effect at the time; nor shall any
carrier refund or lemit in any manner or by any device any
portion of the rates, fares, and charges so specified, nor extend
to any shipper or person any privileges or
"Carrier." facilities in the transportation of passen-
gers or property, except such as are spc^ci-
fied in such tariffs: Provided, That wherever the word
i'> Commission lias decided that the granting of the privilege without
publication is in violation of fhe act — see caption VII — Publication Condi-
tion precedent to legality.
—159—
"carrier" occurs in this Act it shall be held to mean "common
carrier."
That in time of war or threatened war preference and
precedence shall, upon the demand of the
War. Presideiit of the United States, be given,
over all other traffic, to the transportation
of troops and material of war, and carriers shall adopt every
means within their control to facilitate and expedite the mil-
itary traffic.
The Commission may reject and refuse to file any schedule
-, . . that is tendered for filing which does not
Commission . <. i . « •. «•
May Reject provide and give lawful notice of its ettec-
Schedule. ^j^^ date, and any schedule so rejected by
the Commission shall be void and its use shall be unlawful.
In case of failure or refusal on the part of any carrier, re-
ceiver, or trustee to comply with the terms of any regulation
adopted and promulgated or any order made
Penalty. by the Commission under the provisions of
this section, such carrier, receiver, or trustee
shall be liable to a penalty of five hundred dollars for each
such offense, and twenty-five dollars for each and every day of
the continuance of such offense, which shall accrue to the
United States, and may be recovered in a civil action brought
by the United States.
If any common carrier subject to the provisions of this
Act, after written request made upon the agent of such carrier
hereinafter in this section referred to, by any person or com-
pany for a written statement of the rate or charge applicable
to a described shipment between stated places under the sched-
ules or tariffs to which such carrier is a party, shall refuse or
omit to give such written statement within
Refusal or a reasonable time, or shall misstate in writ-
RSl'Q°u"oIItions. ing the applicable rate, and if the person
or company making such request suffers
damage in consequence of such refusal or omission or in con-
sequence of the misstatement of the rate, either through making
the shipment over a line or route for which the proper rate is
higher than the rate over another available line or route, or
through entering into any sale or other contract whereunder
—160—
such porsoii or ronipaiiy ohlii^'ates himself or itself to make
such shipment of freight at his or its cost, then the said carrier
shall be liable to a penalty of two hundred and fifty dollars,
which shall accrue to the United States and may be recovered
in a civil action brought by the United States.
It shall be the duty of every cancer by railroad to keep
at all times conspicuously posted in every station where freight
is received for transportation the name of
Post Name ^^^ agent resident in the city, village or town
of Agent. where such station is located, to whom ap-
plication may be made for the information
by this section required to be furnished on written request;
and in case any carrier shall fail at any time to have such
name so posted in any station, it shall be sufficient to address
such request in substantially the following form: "The sta-
tion agent of the company at station,"
together with the name of the proper postoffice, inserting the
name of the carrier company and of the station in the blanks,
and to serve the same by depositing the request so addressed,
with postage thereon prepaid, in any postoffice.
Section 7. That it shall be unlawful for any common car-
rier subject to the provisions of this act to enter into any com-
bination, contract, or agreement, expressed or implied, to pre-
vent, by change of time schedule, carriage in different cars, or
by other meaiis or devices, the carriage of
Continuous Freights, freights fi'om being continuous from the
place of shipment to the place of destina-
tion ; and no break of bulk, stoppage or interruption made by
such common carrier shall prevent the carriage of freights from
being and being treated as one continuous carriage from the
place of shipment to the place of destination, unless such break,
stoppage, or interruption was made in good faith for some nec-
essary purpose, and without any intent to avoid or unneces-
sarily interrupt such continuous carriage or to evade aii}'^ of
the provisions of this Act.
Section 8. That in case any common carrier subject to
the provisions of this Act shall do, cause to be done, or permit
—161—
to be done, any act, matter, or thinf]^, in this Act prohibited
or declared to be unlawful, or shall omit to do any act, matter,
or thing in this Act required to be done, such common carrier
shall be liable to the person or persons in-
Liability. jured thereby for the full amount of dam-
ages sustained in consequence of any such
violation of the provisions of this Act, together with a reasona-
ble counsel or attorney's fee, to be fixed by the court in every
case or recovery, which attorney's fee shall be taxed and col-
lected as part of the costs in the case.
Section 9. That any person or persons claiming to be
damaged by any common carrier subject to the provisions of
this Act may either make complaint to the Commission as here-
inafter provided for, or may bring suit in his or their own be-
half for the recovery of the damages for which such common
carrier may be liable under the provisions of this Act, in any
district or circuit court of the United States
Election of of competent jurisdiction ; but such person
Remedies. or persons shall not have the right to pursue
both of said remedies, and must in each case
elect which one of the two methods of procedure herein pro-
vided for he or they will adopt. In any such action brought
for the recovery of damages the court before which the same
shall be pending may compel any director, officer, receiver,
trustee, or agent of the corporation or company defendant in
such suit to attend, appear, and testify in such case, and may
compel the production of the books and papers of such cor-
poration or company party to any such suit ; the claim that any
such testimony or evidence may tend to criminate the person
giving such evidence shall not excuse such witness from testi-
fying, but such evidence or testimony shall not be used against
such person on the trial of any criminal proceeding.
Section 10. That any common cai'rier subject to the pro-
visions of this Act, or, whenever such common carrier is a cor-
poration, any director or officer thereof, or any receiver, trus-
tee, lessee, agent, or person acting for or employed by such
corporation, who, alone or with any other corporation, com-
—162—
pany, person, or party, shall willfully do or cause to be done,
or shall willingly snffer or permit to be done, any act, matter
lliiiiir in this Act prohibited or declared to
Penalties. ^'"-^ nnlawful, oi' who shall aid or abet there-
Corporation, in, or shall wilfully omit or fail to do any
act, matter, or thin^', in this Act required
to be done, or shall cause or williniily snffer or permit any
act, matter, or thing so directed or required by this Act to be
done not to be so done, or shall aid or abet any such omission
or failure, or shall be guilty of any infraction of this Act for
which no penalty is otherwise provided, or who shall aid or
abet therein, shall be deemed guilty of a misdemeanor, and
shall, upon conviction thereof in any district court of the
United States within the jui-isdiction of which such offense
was committed, be subject to a fine of not to exceed five thou-
sand dollars for each offense: Provided. That if the offense
for which any person shall be convicted as aforesaid shall be
an unlawful discrimination in rates, fares, or charges for the
transportation of passengers or property, such person shall, in
addition to the tine hereinbefore provided for, be liable to im-
prisonment in the penitentiary for a term of not exceeding two
years, or both such fine and imprisonment, in the discretion
of the court.
Any common carrier subject to the provisions of this Act,
or, whenever such common carrier is a corporation, any offi-
cers or agent thereof, or any persons acting for or employed
by such corporation, who,, by means of false billing, false classi-
fication, false weighing, or false report of
Penalty for weight, or by any other device or means.
False Billing. shall knowingly and willfully assist, or
shall willingly suffer or permit, any person
or persons to obtain transportation for property at less than
the regular rates then established and in force on the line of
transportation of such common carrier, shall be deemed guilty
of a misdemeanor, and shall, upon conviction thereof in any
court of the United States of competent jurisdiction within the
district in which such offense Avas committed, be subject to a
fine of not exceeding fiv(^ thousand dollars, or imprisonment in
— 1C3—
the penitentiary for a term of not exceedinf? two years, or both,
in the discretion of the court, for each offense.
Any person, coi-poration, or company, or any agent or offi-
cer thereof, who shall deliver property for transportation to
any common carrier subject to the provisions of this Act, or
for whom, as consignor or consignee, any such carrier shall
transport property, who shall knowingly and willfully, direct-
ly or indirectly, himself or by employee, agent, officer, or other-
wise, by false billing, false classification, false w^eighing, false
representation of the contents of the package or the substance
of the property, false report of weight, false statement, or by
any other device or means, whether with or without the con-
sent or connivance of the carrier, its agent, or officer, obtain or
attempt to obtain transportation for such property at less than
the regular rates then established and in force on the line of
transportation ; or who shall knowingly and willfully, directly
or indirectly, himself or by employee, agent, officer, or other-
wise, by false statement or representation as to cost, value,
nature, or extent of injury, or by the use of any false bill, bill
of lading, receipt, voucher, roll, account, claim, certificate, affi-
davit, 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 damage or otherwise in connection with
or growing out of the transportation of or agreement to trans-
port such property, whether with or without the consent or
connivance of the carrier, whereby the compensation of such
carrier for such transportation, either before or after payment,
shall in fact be made less than the regular rates then estab-
lished and in force on the line of transportation, shall be
deemed guilty of fraud, which is hereby declared to be a mis-
demeanor, and shall, upon conviction thereof in any court of
the United States of competent jurisdiction within the district
in which such offense was wholly or in part committed, be sub-
ject for each offense to a fine of not exceeding five thousand
dollars or imprisonment in the penitentiary for a term of not
exceeding two years, or both, in the discretion of the court:
Provided, That the penalty of imprisonment shall not apply to
artificial persons.
—164—
If any such person, or any officer or agent of any such
corporation or company, shall, by payment of money or other
thing of value, solicitation, or otherwise, induce or attempt to
induce any common carrier subject to the provisions of this
Act, or any of its officers or agents, to discriminate unjustly
in his, its, or their favor as against any
Penalty for Other consignor or consignee in the trans-
Discrimination, portation of property, or shall aid or abet
any common carrier in any such unjust dis-
crimination, such person or such officer or agent of such cor-
poration or company shall be deemed guilty of a misdemeanor,
and shall, ui)on conviction thereof in any court of the United
States of competent jurisdiction within the district in which
such offense was committed, be subject to a fine of not exceed-
ing five thousand dollars, or imprisonment in the penitentiary
for a term of not exceeding two years, or both, in the discre-
tion of the court, for each offense; and such person, corpora-
tion, or company shall also, together with said common car-
rier, be liable, jointly or severally, in an action to be brought
by any consignor or consignee discriminated against in any
court of the United States of competent jurisdiction for all
damages caused by or resulting therefrom.
Section 11. That a commission is hereby created and
established, to be known as the Interstate Commerce Commis-
sion, which shall be composed of five Commissioners, who shall
be appointed by the President, by and with
Commission the advice and consent of the Senate. The
Appointment. Commissioners first appointed under this
Act shall continue in office for the term of
two, three, four, five and six years, respectively, from the first
day of January, Anno Domini eighteen hundred and eighty-
seven, the term of each to be designated by the President; but
their successors shall be appointed for terras of six years, ex-
cept that any person chosen to fill a vacancy shall be appointed
only for the unexpired time of the Commissioner whom he
shall succeed. Any Commissioner may be removed by the
President for inefficiency, neglect of duty, or malfeasance in
office. Not more than three of the Commissioners shall be ap-
pointed from the same political party. No person in the em-
—165—
ploy of or holding any official relation to any common carrier
subject to the provisions of this Act, or owning stock or bonds
thereof, or who is in any manner pecuniarily interested therein,
shall enter upon the duties of or hold such office. Said Com-
missioners shall not engage in any other business, vocation, or
employment. No vacancy in the Commission shall impair the
right of the remaining Commissioners to exercise all the powers
of the Commission.
Section 12. That the Commission hereby created shall
have authority to inquire into the management of the business
of all common carriers subject to the provisions of this Act,
and shall keep itself informed as to the manner and method
in which the same is conducted and shall
Powers and Duties ^Si^G the right to obtain from such common
of Commission. carriers full and complete information nec-
essary to enable the Commission to perform
the duties and carry out the objects for which it was created;
and the Commission is hereby authorized and required to ex-
ecute and enforce the provisions of this Act; and, upon the
request of the Commission, it shall be the duty of any district
attorney of the United States to whom the Commission may
apply to institute in the proper court and to prosecute under
the direction of the Attorney General of the United States all
necessary proceedings for the enforcement of the provisions of
this Act and for the punishment of all violations thereof, and
the costs and expenses of such prosecution shall be paid out
of the appropriation for the expenses of the courts of the
United States; and for the purposes of this Act the Commis-
sion shall have power to require, by subpoena, the attendance
and testimony of witnesses and the production of all books,
papers, tariffs, contracts, agreements, and documents relating
to any matter under investigation.
Such attendance of witnesses, and the production of such
documentary evidence, may be required from any place in the
United States, at any designated place of
Witnesses. hearing. And in case of disobedience to a
subpoena the Commission, or any party to
a proceeding before the Commission, may invoke the aid of any
court of the United States in requiring the attendance and
z:^^:
testimony of witnesses and the prod notion of books, papers,
and docnments nndei' the provisions of this section.
And any of the circuit courts of the United States within
the jurisdiction of which such inquiry is carried on may, in
case of contumacy or refusal to obey a subpoena issued to any
common carrier subject to the provisions of this Act, or other
person, issue an order requirinc; such common carrier or other
person to appear before said Commission (and produce books
and papers if so ordered) and give evidence touching the mat-
ter in question ; and any failure to obey such order of the court
may be punished by such court as a contempt thereof. The
claim that any such testimony or evidence may tend to crim-
inate the person giving such evidence shall not excuse such
witness from testifying; but such evidence or testimony shall
not be used against such person on the trial of any criminal
proceeding.
The testimony of any witness may be taken, at the in-
stance of a party in any proceeding or investigation depend-
ing before the Commission, by deposition, at any time after
a cause or proceeding is at issue on petition and answer. The
Commission may also order testimony to be taken by deposi-
tion in any proceeding or investigation
Testimony, ponding before it, at any stage of such pro-
Deposition, ('coding or investigation. Such depositions
may be taken before any judge of any court
of the United States, or any commissioner of a circuit, or any
clerk of a district or circuit court, or any chancellor, justice,
or judge of a supreme or superior court, mayor or chief magis-
trate 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 inter-
ested in the event of the proceeding or investigation. Reason-
able notice must first be given in writing by the party or his
attorney proposing to take such deposition to the opposite
party or his attorney of record, as either may bo nearest, which
notice shall state the name of the witness and the time and
place of the taking of his deposition. Any person may be com-
pelled to appear and depose, and to produce documentary evi-
dence, in the same manner as witnesses may be compelled to
—167—
appear and testifj; and produce documentary evidence before
the Commission as hereinbefore provided.
Every person deposing as herein provided shall be cau-
tioned and sworn (or affirm, if he so request) to testify the
whole truth, and shall be carefully examined. His testimony
shall be reduced to writing by the magistrate taking the deposi-
tion, or under his direction, and shall, after it has been reduced
to writing, be subscribed by the deponent.
If a witness whose testimony may be desired to he taken
by deposition be in a foreign country, the deposition may be
taken before an officer or person designated
Witness, Foreign ^'X ^^- Commission, or agreed upon by the
Country. parties by stipulation in writing to be filed
with the Commission. All depositions must
be promptly filed with the Commission.
Witnesses whose depositions are taken pursuant to this
act, and the magistrate or other officer taking the same, shall
severally be entitled to the same fees as are paid for like serv-
ices in the courts of the United States.
Section 13. That any person, firm, corporation, company,
or association, or any mercantile, agricultural, or manufactur-
ing society, or other organization, or any body politic or muni-
cipal organization, or any common carrier, complaining of any-
thing done or omitted to be done by any common carrier sub-
ject to the provisions of this Act, in contravention of the pro-
visions thereof, may apply to said Commission by petition,
which shall briefly state the facts; where-
Comolaints to upon a statement of the complaint thus made
Commission. shall be forwarded by the Commission
to such common carrier who shall be called
upon to satisfy the complaint, or to answer the same in writing,
within a reasonable time, to be specified by the Commission. If
such common carrier within the time specified shall make
reparation for the injury alleged to have been done, the common
carrier shall be relieved of liability to the complainant only for
the particular violation of the law thus complained of. If such
carrier or carriers shall not satisfy the complainant within the
time specified, or there shall appear to be any reasonable ground
—168—
for investigating- said complaint, it shall bo the duty of the Com-
mission to inyestigate the matters complained of in snch manner
and by such means as it shall deem proper.
Said commission shall, in like manner, and with the same
authority and powers, investigate any complaint forwarded by
the railroad commissioner or railroad commission of any State
or Territory at the request of such commissioner or commis-
sion, and the Interstate Commerce Commission shall have full
authority and power at any time to institute an inquiry, on its
own motion, in any case and as to any matter or thing concern-
ing w^hich a complaint is authorized to be made, to or before said
Commission by any provision of this act, or
Orders of Concerning which any question may arise
Commission. under any of the provisions of this Act, or re-
lating to the enforcement of any of the pro-
visions of this act. And the said Commission shall have the
same powers and authority to proceed with any inquiry in-
stituted on its own motion as though it had been appealed to
by complaint or petition under any of the provisions of this
Act, including the power to make and enforce any order or
orders in the case, or relating to the matter or thing concern-
ing which the inquiry is had, excepting orders for the payment
of money. No complaint shall at any time be dismissed be-
cause of the absence of direct damage to the complainant.
Section 14. That whenever an investigation shall be made
by said Commission, it shall be its duty to make a report in
writing in respect thereto, which shall state
Report. the conclusions of the Commission, together
with its decision, order, or requirement in
the premises; and in case damages are awarded such report
shall include the findings of fact on which the award is made.
All reports of investigations made by the Commission shall
be entered of record and a copy thereof shall be furnished to
the party who may have complained, and to any common car-
rier that may have been complained of.
The Commission may provide for the publication of its
reports and decisions in such form and manner as may be best
adapted for public information and use, and such authorized
—169—
publications shall be competent evidence of the reports and
decisions of the Commission therein contained in all courts of
the United States and of the several States without any further
proof or authentication thereof. The Commission may also
cause to be printed for early distribution its annual reports.
Section 15. Tliat whenever, after full hearing upon a
complaint made as provided in section thirteen of this Act, or
after full hearing under an order for investigation and hearing
made by the Commission on its own initia-
Rates to Be tive (either in extension of any pending
Determined and complaint or without anv complaint what-
Commission. ever), the Commission shall be of opinion
that any individual or joint rates or charges
whatsoever demanded, charged, or collected by any common
carrier or carriers subject to the provisions of this Act for the
transportation of persons or property or for the transmission
of messages by telegraph or telephone as defined in the first
section of this Act, or that any individual or joint classifica-
tions, regulations, or practices whatsoever of such carrier
or carriers subject to the provisions of this Act, are
unjust or unreasonable or unjustly discriminatory, or
unduly preferential or prejudicial or otherwise in viola-
tion of any of the provisions of this Act, the Com-
mission is hereby authorized and empowered to determine and
prescribe what will be the just and reasonable individual or
joint rate or rates, charge or charges, to be thereafter observed
in such case as the maximum to be charged, and what indi-
vidual or joint classification, regulation or practice ^^ is just,
fair and reasonable, to be thereafter followed, and to make an
11 In the wool case, 23 I. C. C. Rep., 151 (1912), (Paragraph 31), the
Commission construed this provision as amended by the Act of 1906 as
investing in the Commission full authority over interstate rates and what-
ever regulation or practices entered into those rates and determined their
value and availability to individuals or communities; holding that transit is
a practice or regulation included within the provision of the fifteenth sec-
tion over which the Commission has jurisdiction and that they rnay require
carriers to accord that privilege. As was said by the Commission (Para-
graph 23)— there can be no question as to the right and power of ihe Com-
mission to order the removal of an unjust discrimination and to prescribe
such reasonable rate and regulation as will effect such removal.
—170—
order that the carrier or carriers shall cease and desist from
such violation to the extent to which the Commission finds the
same to exist, and shall not thereafter publish, demand, or col-
lect any rate or charge for such transporta-
Individual or Joint tion or transmission in excess of the max-
Det!i^nS"whl°t" ^"^"^ ^^^^ ^^ charge so prescribed, and shall
Reasonable. i^.dopt the classification and shall conform to
and obserre the regulation or practice so de-
scribed. All orders of the Commission, except orders for the
payment of money, shall take effect T^ithin such reasonable
time, not less than thirty days, and shall continue in force for
such period of time, not exceeding two years, as shall be pre-
scribed in the order of the Commission, unless the same shall
be suspended or modified or set aside by the Commission, or
be suspended or set aside by a court of competent jurisdiction.
Whenever the carrier or carriers, in obedience to such order of
the Commission or otherwise, in respect to joint rates, fares, or
charges, shall fail to agree among themselves upon the appor-
tionment or division thereof the Commission may, after hear-
ing, make a supplemental order prescribing the just and rea-
sonable proportion of such joint rate to be received by each
carrier party thereto, which order shall take effect as a part of
the original order.
Whenever there shall be filed with the Commission any
schedule stating a new individual or joint rate, fare, or charge,
or any new individual or joint classification, or any new indi-
vidual or joint regulation or practice affecting any rate, fare,
or charge, the Commission shall have, and it is hereby given,
authority, either upon complaint or upon
Commission May its own initiative without complaint, at
Suspend Operation t .« '.. , .,, ,
of New Schedule. once, and if it SO orders, without answer or
other formal pleading by the interested car-
rier or carriers, but upon reasonable notice, to enter upon a
hearing concerning the propriety of such rate, fare, charge,
classification, regulation, or practice; and pending such hear-
ing and the decision thereon the Commission upon filing with
such schedule and delivering to the carrier or carriers affected
thereby a statement in writing of its reasons for such suspen-
—171—
sion may suspend the operation of such schedule and defer the
use of such rate, fare, charge, classification, regulation, or
practice, but not for a longer period than one hundred and
twenty days beyond the time when such rate, fare, charge,
classification, regulation, or practice would otherwise go into
effect; and after full hearing, whether completed before or after
the rate, fare, charge, classification, regulation, or practice goes
into effect, the Commission may make such order in reference
to such rate, fare, charge, classification, regulation, or practice
as would be proper in a proceeding initiated after the rate,
fare, charge, classification, regulation, or practice had become
effective; provided, that if any such hearing cannot be con-
cluded within the period of suspension, as above stated, the
Interstate Commerce Commission may, in its discretion, extend
the time of suspension for a further period not exceeding six
months. At any hearing involving a rate increased after Jan-
uary first, nineteen hundred and ten, or of a rate sought to be
increased after the passage of this Act, the burden of proof to
show that the increased rate or proposed increased rate is just
and reasonable shall be upon the common carrier, and the Com-
mission shall give to the hearing and decision of such questions
preference over all other questions pending before it and decide
the same as speedily as possible.
The Commission may also, after hearing, on a complaint
or upon its own initiative without complaint, establish through
routes and joint classifications and may establish joint rates as
the maximum to be charged and may prescribe the division of
such rates as hereinbefore provided and the terms and condi-
tions under which such through routes shall be operated, when-
ever the carriers themselves shall have re-
Through Routes fused or neglected to establish voluntarily
and Classifications. sucli through routes or joint classifications
or joint rates; and this provision shall ap-
ply when one of the connecting carriers is a water line. The
Commission shall not, however, establish any through route,
classification, or rate between street electric passenger railways
not engaged in the general business of transporting freight in
addition to their passenger and express business and railroads
—172—
of a dififerent character, nor shall the Commission have the
right to establish any route, classilication, rate, fare, or charge,
•when the transportation is wholly by water, and any transpor-
tation by water affected by this act shall be subject to the laws
and regulations applicable to transportation by water.
And in establishing such through route, the Commission
S"hall not require any company, without its consent, to embrace
in such route substantially less than the entire length of its
railroad and of any intermediate railroad operated in conjunc-
tion and under a common management or control therewith
which lies between the termini of such proposed through route,
unless to do so would make such through route unreasonably
long as compared with another practicable through route
which could otherwise be established.
In all cases where at the time of delivery of property to
any railroad corporation being a common carrier, for trans-
portation subject to the provisions of this Act to any point of
destination, between which and the point of such delivery for
shipment two or more through routes and through rates shall
have been established as in this Act provided to which through
routes and through rates such carrier is a party, the person,
firm or corporation making such shipment, subject to such
reasonable exceptions and regulations as
Tr° °'^h^°'^^ ^ ^^^ Interstate Commerce Commission shall
Through Rate" ^" 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 des-
tination, and it shall thereupon be the duty of the initial car-
rier to route said property and issue a through bill of lading
therefor as so directed, and to transport said pi'operty over
its own line or lines and deliver the same to a connecting line
or lines according to such through I'oute, 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
routing instructions in said bill of lading: Provided, however,
—173—
That the shipper shall in all instances have the right to de-
termine, 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.
It shall be unlawful for any common carrier subject to
the provisions of this Act, or any officer, agent, or employee of
such common carrier, or for any other person or corporation
lawfully authorized by such common carrier to receive informa-
tion therefrom, knowingly to disclose to or permit to be ac-
quired by any person or corporation other than the shipper
or consignee, without the consent of such shipper or consignee,
any information concerning the nature, kind, quantity, des-
tination, consignee, or routing of any property tendered or de-
livered to such common carrier for interstate transportation,
which information may be used to the detriment or prejudice
of such shipper or consignee, or which may
Disclosing improperly disclose his business transac-
information. tions to a competitor; and it shall also be
unlawful for any person or corporation to
solicit or knowingly receive any such information w^hich may
be so used : Provided, That nothing in this Act shall be con-
strued to prevent the giving of such information in response to
any legal process issued under the authority of any state or
federal court, or to any officer or agent of the government of the
United States, or of any State or Territory, in the exercise of
his powers, or to any officer or other duly authorized person
seeking such information for the prosecution of persons
charged with or suspected of crime ; or information given by a
common carrier to another carrier or its duly authorized agent,
for the purpose of adjusting mutual traffic accounts in the ordi-
nary course of business of such carriers.
Any person, corporation or association violating any of the
provisions of the next preceding paragraph of this section shall
be deemed guilty of a misdemeanor, and for each offense, on
conviction, shall pay to the United States a penalty of not more
than one thousand dollars.
—174—
If the owner of property transported under this Act di-
rectly or indirectly renders any service connected with such
transportation, or furnishes any instrumen-
Reasonable tality used therein, the charge and allow-
Allowance:'- ,, „ i n i , . .
Owner of Property '^^^^'^ theretor Shall be no more than is just
Who Furnishes and reasonable, and the Commission may,
Instrumentahly of „ , . ^ _ . .
Transportation— alter 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 instrumental-
ity so furnished, and fix the same by appropriate order, which
order shall have the same force and effect and be enforced in
like manner as the orders above provided for under this sec-
tion.
The foregoing enumeration of powers shall not exclude any
power which the Commission would otherwise have in the
making of an order under the provisions of this Act.
Section 16. That if, after hearing on a complaint made
as provided in section thirteen of this Act, the Commission
shall determine that any party complainant
Award of is entitled to an award of damages under
Damages.i.'? the provisions of this Act, for a violation
thereof, the Commission shall make an order
directing the carrier to pay to the complainant the sum to
which he is entitled on or before a day named.
If a carrier does not comply with an order for the pay-
ment of money within the time limit in such order, the com-
12 The Supreme Court in the Diffenbaugh case, 222 U. S., 42 (1911),
in construing this portion of section 15 as it pertains to elevation of
grain in transit and allowances made by transportation companies to ele-
vators which were owned by the owner of the grain said the only restriction
being that he shall pay no more than is reasonable, and the only permissive
element being that the Commission may determine the maximum in case
there is complaint (or, now, upon its own motion. Act of June 18, 1910,
c. 309, 12, 36 Stat., 539, 553). (See Paragraph No. 29.)
13 The jurisdiction of the Commission to award damages for unlawful
discrimination in elevation allowances is covered by the Commission in
Washer Grain Companv case, 15, I. C. C, Rep., 147 (1909), paragraph 28,
also 16, I. C. C. Rep., 337, paragraph 29.
iz^I^z:
plainant, or any person for whose benefit snch order was made,
may file in the circnit conrt of the United States for the dis-
trict in which he resides or in which is located the principal
operatinjT^ office of the carrier, or through which the road of
the carrier runs, or in any state court of general jurisdiction
having jurisdiction of the parties, a petition setting forth
briefly the causes for which he claims damages, and the order
of the Commission in the premises. Such
Petition if gnit in the circuit court of the United States
v/i°h"o°der.*^"'^' shall proceed in all respects like other civil
suits for damages, except that on the trial
of such suit the findings and order of the Commission shall
be prima facie evidence of the facts therein stated, and except
that the petitioner shall not be liable for costs in the circuit
court nor for costs at any subsequent stage of the proceedings
unless they accrue upon his appeal. If the petitioner shall
finally prevail he shall be allowed a reasonable attorney's fee,
to be taxed and collected as part of the costs of the suit. All
complaints for the recovery of damages shall be filed with the
Commission within two years from the time the cause of action
accrues, and not after, and a petition for the enforcement of
an order for the payment of money shall be filed in the circuit
court or state court within one year from the date of the order
and not after.
If such suits all parties in whose favor the Commission
may have made an award or damages by a single order may be
joined as plaintiffs, and all of the carriers parties to such order
awarding damages may be joined as defendants, and such suit
may be maintained by such joint plaintiffs
Joint Parties. and against such joint defendants in any
district where any one of such joint plain-
tiffs could maintain such suit against any one of such joint de-
fendants; and service of process against any one of such de-
fendants as may not be found in the district where the suit is
brought may be made in any district where such defendant
carrier has its principal operating office. In case of such joint
suit the recovery, if any, may be by judgment in favor of any
—176—
Olio of such plaintiffs, aj^aiiisi the (lefendaiit foinid to be liable
to siH-h plaintiff.
Every order of the Commission shall be forthwith served
upon the designated airent of the carriei* in the City of Wash-
iii«ton or in such other manner as may be
Service. provided by law.
The Commission shall be authorized to
suspend or modify its orders upon such notice and in such man-
ner as it shall deem proper.
It shall be the duty of every common carrier, its agents
and employees, to observe and comply with such orders so long
as the same shall remain in effect.
Any carrier, any officers, representative, or agent of a car-
rier, or any receiver, trustee, lessee, or agent of either of them,
who knowingly fails or neglects to obey any order made under
the provisions of section fifteen of this Act shall forfeit to the
United States the sum of five thousand dollars for each offense.
Every distinct violation shall be a separate offense, and in case
of a continuing violation each day shall be deemed a separate
offense.
The forfeiture provided for in this Act shall be payable
into the Treasury of the United States, and shall be recover-
able in a civil suit in the name of the United
Punishment. States, brought in the district where the
carrier has its principal operating office, or
in any district through which the road of the carrier runs.
It shall be the duty of the various district attorneys, under
the direction of the Attorney General of the United States, to
prosecute for the recovery of forfeitures. The costs and ex-
penses of such prosecution shall be paid out of the appropria-
tion for the expenses of the courts of the United States. The
Commission may employ such attorneys as
Employ Counsel. it finds necessary for proper legal aid and
service of the Commission or its members in
the conduct of their work or for proper i-epresentation of the
public interests in investigations made by it or cases or pro-
ceedings pending before it, whether at the Commission's own
instance or upon complaint, or to appear for and represent the
Commission in any case pending in the commerce court; and
—177—
the expenses of snch employment shall be puul out of the ap-
propriation for the Coiiiniission,
If any carrier fails or neglects to obey any order of the
Commission other than for the payment of money, while the
same is in effect, the Interstate Commerce Commission or any
party injured thereby, or the United States, by its Attorney
General, may apply to the commerce conrt for the enforce-
ment of such order. If, after hearing, that
Enforcing Order. court determines that the order was regu-
larly made and duly served, and that the
carrier is in disobedience of the same, the Court shall enforce
lOibedience to such order by a writ of injunction or other proper
process, mandatory or otherwise, to restrain such carrier, its
officers, agents, or representatives, from further disobedience
of such order, or to enjoin upon it or them obedience to the
same.
The copies of schedules and classifications and tariffs of
rates, fares, and charges, and of all contracts, agreements, and
arrangements between common carriers filed
Public Records. with the Commission as herein provided,
and the statistics, tables, and figures con-
tained in the annual or other reports of carriers made to the
Commission as required under the provisions of this Act shall
be preserved as public records in the custody of the secretary
of the Commission, and shall be received as prima facie evi-
dence of what they purport to be for the purpose of investiga-
tions by the Commission and in all judicial proceedings; and
copies of and extracts from any of said schedules, classifica-
tions, tariffs, contracts, agreements, arrangements, or reports,
made public records as aforesaid, certified by the secretary
under the Commission's seal, shall be received in evidence with
like effect as the originals.
Section 16a. That after a decision, order, or requirement
has been made by the Commission in any proceeding any party
thereto may at any time make application for rehearing of the
same, or any matter determined therein, and it shall be lawful
for the Commission in its discretion to grant such a rehearing
if sufficient reason therefor be made to appear. Application
for rehearing shall be governed by such general rules as the
—178—
Commission may establish. Xo such application shall excnse
any carrier from complying with or obeying- any decision, order,
or requirement of the Commission, or operate in any manner
to stay or postpone the enforcement thereof,
Rehearings. without the special order of the Commis-
sion. In case a rehearing is granted the
proceedings thereupon shall conform as nearly as may be to
the proceedings in an original hearing, except as the Commis-
sion may otherwise direct; and if, in its judgment, after such
rehearing and the consideration of all facts, including those
arising since the former hearing, it shall appear that the orig-
inal decision, order, or requirement is in any respect unjust or
unwarranted, the Commission may reverse, change, or modify
the same accordingly. Any decision, order, or requirement
made after such rehearing, reversing, changing, or modifying
the original determination shall be subject to the same pro-
visions as an original order.
Sectiox 17. That the Commission may conduct its pro-
ceedings in such manner as will best conduce to the proper
dispatch of business and to the ends of justice. A majority of
the Commission shall constitute a quorum for the transaction
of business, but no Commissioner shall participate in any hear-
ing or proceeding in which he has any pecuniary interest. Said
Commission may, from time to time, make
Procedure. or amend such general rules or orders as
may be requisite for the order and regula-
tion of proceedings before it, including forms of notices and
the service thereof, which shall conform, as nearly as may be,
to those in use in the courts of the United States. Any party
may appear before said Commission and be heard, in person
or by attorney. Every vote and official act of the Commission
shall be entered of record, and its proceedings shall be public
upon the request of either party interested. Said Commission
shall have an official seal, which shall be judicially noticed.
Either of the members of the Commission may administer oaths
and affirmations and sign subpoenas.
Section 18. That each Commissioner shall receive an an-
nual salary of seven thousand five hundred dollars, payable in
—179 —
the same manner as the jnclfj^es of the courts of the United
States. The Commission .sliall appoint a secretary, who shall
receive an annual salary of three thousand five hundred dollars,
payable in like manner. The Commission shall have authority
to employ and fix the compensation of such other employees as
it may find necessary to the proper perform-
Salaries. ance of its duties. Until otherwise provided
by law, the Commission may hire suitable
offices for its use and shall have authority to procure all nec-
essary office supplies. Witnesses summoned before the Com-
mission shall be paid the same fees and mileage that are paid
witnesses in the courts of the United States.
All of the expenses of the Commission, including all nec-
essary expenses of transportation incurred by the Commission-
ers, or by their employees under their orders, in making any
investigations, or upon official business in any other places than
in the City of Washington, shall be allowed and paid on the
presentation of itemized vouchers therefor approved by the
chairman of the Commission.
Section 19. That the principal office of the Commission
shall be in the City of Washington, where its general session
shall be held; but whenever the convenience of the public or
the parties may be promoted or delay or ex-
Office, 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 pertain-
ing to the business of any common carrier subject to the pro-
visions of this Act.
Section 20. That the Commission is hereby authorized
to require annual reports from all common carriers subject to
the provisions of this Act, and from the owners of all railroads
engaged in interstate commerce as defined in this Act, to pre-
scribe the manner in which such reports shall be made, and to
require from such carriers specific answers to all questions
upon which the Commission may need information. Such an-
nual reports shall show in detail the amount of capital stock
-180—
issued, the amounts paid therefor, and the manner of payment
for the same ; the dividends paid, the surplus
Annual Repcrts.i^ found, if any, and the number of stockhold-
ers; the funded and floating debts and the
interest paid thereon; the cost and value of the carrier's prop-
erty, franchises, and equipments; the number of employees and
the salaries paid each class; the accidents to passenji^ers, em-
ployees, and other persons, and the causes thereof; the amounts
expended for improvements each year, how expended, and the
character of such improvement; the earnings and receipts from
each branch of business and from all sources; the operating
and other expenses ; the balances of profit and loss ; and a com-
plete exhibit of the financial operations of the carrier each year,
including an annual balance sheet. Such reports shall also
contain such information in relation to rates or regulations
concerning fares or freights, or agreements, arrangements, or
contracts affecting the same as the Commission may require;
and the Commission may, in its discretion, for the purpose of
enabling it the better to carry out the purposes of this Act,
prescribe a period of time within which all common carriers
subject to the provisions of this Act shall have, as near as may
be, a uniform system of accounts, and the manner in which
such accounts shall be kept.
Said detail reports shall contain all the required statistics
for the period of twelve months ending on the thirtieth day of
June in each year, or on the thirty-first day of December in
each year if the Commission by order substitute that period for
the year ending June thirtieth, and shall be made out under
oath and filed with the Commission at its office in Washington
within three months after the close of the year for which the
report is made, unless additional time be
Detailed Reports. granted in any case by the Commission ;
and if any carrier, person, or corporation
subject to the provisions of this Act shall fail to make and file
said annual reports within the time above specified, or within
the time extended by the Commission, for making and filing the
same, or shall fail to make specific answer to any question au-
thorized by the provisions of this section within thirty days
i-t See Note 1. supra, citing Goodrich Transit Co. case, 222 U. S., 194.
—181—
from the time it is lawfully required so to do, such party shall
forfeit to the United States the sum of one hundred dolhirM
for each and every day it shall continue to be in default with
respect thereto. The Commission shall also have authority by
general or special orders to require said carriers, 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 author-
ized or required by this or any other law to inquire or to keep
itself informed or which it is required to enforce; and such
periodical or special reports shall be under oath whenever the
Commission so requires; and if any such carrier shall fail to
make and file any such periodical or special report within the
time fixed by the Commission, it shall be subject to the for-
feitures last above provided.
Said forfeitures shall be recovered in the manner pro-
vided for the recovery of forfeitures under the provisions of
this Act.
Forfeiture. The oath required by this section may
be taken before any person authorized to
administer an oath by the laws of the State in which the same
is taken.
The Commission may, in its discretion, prescribe the forms
of any and all accounts, records, and memoranda to be kept by
carriers subject to the provisions of this Act, including the
accounts, records, and memoranda of the movement of traffic
as wtII as the receipts and expenditures of moneys. The Com-
mission shall at all times have access to all
Porm of accounts, records and memoranda kept by
Accounts. carriers subject to this Act, and it shall be
unlawful for such carriers to keep any other
accounts, records or memoranda than those prescribed or ap-
proved by the Commission, and it may employ special agents
or examiners, who shall have authority under the order of the
Commission to inspect and examine any and all accounts, rec-
ords, and memoranda kept by such carriers. This provision
shall apply to receivers of carriers and operating trustees.
In case of failure or refusal on the part of any such car-
rier, receiver, or trustee to keep such accounts, records and
-^S2^
memoranda ou the books and in the manner prescribed by the
Commission, or to submit such accounts,
Punishment. records, and memoranda as are kept to the
inspection of the Commission or any of its
authorized agents or examiners, such carrier, receiver, or trus-
tee shall forfeit to the United States the sum of five hundred
dollars for each such offense and for each and every day of the
continuance of such offense, such forfeitures to be recoverable
in the same manner as other forfeitures provided for in this
Act.
Any person who shall willfully make any false entry in
the accounts of any book of accounts or in any record or mem-
oranda kept by a carrier, or who shall willfully destroy, muti-
late, alter or by any other means or device falsify the record
of such account, record, or memoranda, or who shall wilfully
neglect or fail to make full, true and correct entries in such
accounts, records, or memoranda of all facts and transactions
appertaining to the carrier's business, or shall keep any other
accounts, records, or memoranda than those prescribed or ap-
proved by the Commission, shall be deemed guilty of a misde-
meanor and shall be subject, upon conviction in any court of
the United States of competent jurisdiction, to a fine of not
less than one thousand dollars nor more than five thousand
dollars, or imprisonment for a term not less than one year nor
more than three years, or both such fine and imprisonment :
Provided, That the Commission may in its discretion issue
orders specifying such operation, accounting, or financial
papers, records, books, blanks, tickets, stubs.
Papers <>!' documents of carriers which may, after
Destroyed. a reasonable time, be destroyed, and prescrib-
ing the length of time such books, papers,
or documents shall be preserved.
Any examiner who divulges any fact or information which
may come to his knowledge during the course of such examina-
tion, except in so far as he may be directed
Punishment, ^'J the Commission or by a court or judge
Examiner. thereof, shall be subject, upon conviction in
any court of the United States of competent
jurisdiction, to a fine of not more than five thousand dollars
or imprisonment for a term not exceeding two years, or both.
—183—
That the circuit and district courts of the United States
shall have jurisdiction, upon the application of the Attorney
General of the United States at the request of the Commission,
alleging a failure to comply with or a viola-
Court Jurisdiction. tion of any of the provisions of said Act to
regulate commerce or of any Act supple-
mentary thereto or amendatory thereof by any common car-
rier, to issue a writ or writs of mandamus commanding such
common carrier to comply with the provisions of said Acts, or
any of them.
And to carry out and give efifect to the provisions of said
Acts, or any of them, the Commission is hereby authorized to
employ special agents or examiners who
Special Examiners. shall have power to administer oaths, exam-
ine witnesses and receive evidence.
That any common carrier, railroad, or transportation
company receiving property for transportation from a point in
one State to a point in another State shall issue a receipt or
bill of lading therefor and shall be liable to the lawful holder
thereof for any loss, damage, or injury to such property caused
by it or by any common carrier, railroad, or transportation
company to which such property may be delivered or over whose
line or lines such property may pass, and no contract, receipt,
rule, or regulation shall exempt such common carrier, railroad,
or transportation company from the liability hereby imposed :
Provided, That nothing in this section shall deprive any holder
of such receipt or bill of lading of any remedy or right of ac-
tion which he has under existing law.
That the common carrier, railroad, or transportation com-
pany issuing such receipt or bill of lading shall be entitled to
recover from the common carrier, railroad, or transportation
company on whose line the loss, damage, or injury shall have
been sustained the amount of such loss, damage, or injury, as
it may be required to pay to the owners of such property, as
may be evidenced by any receipt, judgment, or transcript
thereof.
Section 21. That the Commission shall, on or before the
first day of December in each year, make a report, which shall
be transmitted to Congress, and copies of which shall be dis-
tributed as are the other reports trans-
Annual Reports. mitted to Congress. This report shall con-
tain such information and data colJected by
the Commission as may be considered of value in the deter-
mination of questions connected with the regulation of com-
merce together with such recommendations as to additional
legislation relating thereto as the Commission may deem nec-
essary; and the names and compensation of the persons em-
ployed by said Commission,
Section 22. That nothing in this Act shall prevent the
carriage, storage, or handling of property free or at reduced
rates for the United States, State, or municipal governments,
or for charitable purposes, or to or from fairs and expositions
for exhibition thereat, or the free carriage of destitute and
homeless persons transported by charitable societies, and the
necessary agents employed in such transportation, or the issu-
ance of mileage, excursion, or commutation pas^-^enger tickets;
nothing in this Act shall be construed to prohibit any common
carrier from giving reduced rates to ministers of religion, or
to municipal governments for the transportation of indigent
persons, or to inmates of the National Homes or State Homes
for Disabled Volunteer Soldiers, and of Soldiers and Sailors'
Orphan Homes, including those about to enter and those re-
turning home after discharge, under arrangements wdth the
board of managers of said homes ; nothing in this Act shall be
construed to prevent railroads from giving free carriage to their
own officers and employes, or to prevent the principal officers
of any railroad company or companies from exchanging passes
or tickets with other railroad companies for their officers and
employes ; and nothing in this Act contained
Reduced Rates, shall in any wav abridge or alter the rem-
Refers to Sections ,. . , ." ,
4, 6 and 10. edies now existing at common law or br
statute, but the provisions of this Act are in
addition to such remedies: Provided, That no pending litiga-
tion shall in any way be affected by this Act : Provided, further,
That nothing in this Act shall prevent the issuance of joint
interchangeable five-thousand-mile tickets, with special privi-
—185—
leges as to the amount of free baggage that may be carried
under mileage tickets of one thousand or more miles. But be-
fore any common carrier, subject to the provisions of this Act,
shall issue any such joint interchangeable mileage tickets with
special privileges, as aforesaid, it shall file with the Interstate
Commerce Commission copies of the joint tariffs of rates, fares,
or charges on which such joint interchangeable milegae tickets
are to be based, together with specifications of the amount of
free baggage permitted to be carried under such tickets in the
same manner as common carriers are required to do with re-
gard to other joint rates by section six of this Act; and all
the provisions of said section six relating to joint rates, fares,
and charges shall be observed by said common carriers and en-
forced by the Interstate Commerce Commission as fully with
regard to such joint interchangeable mileage tickets as with re-
gard to other joint rates, fares and charges referred to in said
section six. It shall be unlawful for any common carrier that
has issued or authorized to be issued any such joint inter-
changeable mileage tickets to demand, collect, or receive from
any person or persons a greater or less compensation for trans-
portation of persons or baggage under such joint interchange-
able mileage ticket than that required by the rate, fare, or
charge specified in the copies of the joint tariff of rates, fares
or charges filed with the Commission in force at the time. The
provisions of section ten of this Act shall apply to any viola-
tion of the requirements of this proviso.
Section 23. That the circuit and district courts of the
United States shall have jurisdiction upon the relation of any
person or persons, firm, or corporation, alleging such violation
by a common carrier of any of the provisions of the Act to
which this is a supplement and all acts amendatory thereof,
as prevents the relator from having interstate traffic moved by
said common carrier at the same rates as
Jurisdiction, are charged, or upon terms or conditions as
Mandamu"!^**' favorable as those given by said common
carrier for like traffic under similar condi-
tions to any other shipper, to issue a writ or writs of mandamus
against said common carrier, commanding such common car-
—186—
rier to move and transport the traffic, or to furnish cars or
other facilities for transportation for the party applyinj^ for
the writ: Provided, That if any question of fact as to the
proper compensation to the common carrier for the service to
be enforced by the writ is raised by the pleadings, the wrvt of
peremptory mandamus may issue, notwithstanding such ques-
tion of fact is undetermined, upon such terms as to security,
payment of money into the court, or otherwise, as the court
may think proper, pending the determination of the question
of fact: Provided, That the remedy hereby
Mandamus. given by Vk'rit of mandamus shall be cumu-
lative, and shall not be held to exclude or
interfere with other remedies provided by this Act or the Act
to which it is a supplement.
Section 24. That the Interstate Commerce Commission
is hereby enlarged so as to consist of seven members with terms
of seven years, and each shall receive ten thousand dollars com-
pensation annually. The qualifications of the Commissioners
and the manner of the payment of their salaries shall be as al-
ready provided by law. Such enlargement of the Commission
shall be accomplished through appointment by the President,
by and with the advice and consent of the Senate, of two addi-
tional Interstate Commerce Commissioners, one for a term ex-
piring December thirty-first, nineteen hundred and eleven, one
for a term expiring December thirty-first,
Commission nineteen hundred and twelve. The terms
Enlarged. of the present Commissioners, or of any suc-
cessor appointed to fill a vacancy caused by
the death or resignation of any of the present Commissioners,
shall expire as heretofore provided by law. Their successors
and the successors of the additional Commissioners herein pro-
vided for shall be appointed for the full term of seven years,
except that any person appointed to fill a vacancy shall be
appointed only for the unexpired term of the Commissioner
whom he shall succeed. Not more than four Commissioners
shall be appointed from the same political party.
—187—
Additional Section. (Act of June 29, 1906.) That all
existing laws relating to the attendance of witnesses and the
production of evidence and the compelling
Witnesses— ^^ testimony under the Act to regulate corn-
Evidence, merce and all Acts amendatory thereto shall
apply to any and all proceedings and hear-
ings under this Act.
Additional Section. That all laws and parts of laws in
conflict with the provisions of this Act are hereby repealed,
but the amendments herein provided for
Repeal. shall not affect causes now pending in courts
of the United States, but such causes shall
be prosecuted to a conclusion in the manner heretofore pro-
vided by law.
Additional Section. That this Act shall take effect and
be in force from and after its passage.
Additional Provision— Act June, 1910. That nothing in
this Act contained shall undo or impair any proceedings here-
tofore taken by or before the Interstate Commerce Commission
or any of the Acts of said Commission ; and
Not Retroactive. in any cases, proceedings, or matters now
pending before it, the Commission may ex-
ercise any of the powers hereby conferred upon it, as would be
proper in cases, proceedings, or matters hereafter initiated;
and nothing in this Act contained shall operate to release or
affect any obligation, liability, penalty or forfeiture heretofore
existing against or incurred by any person, corporation, or
association.
Additional Provision — Act June, 1910. That the Presi-
dent is hereby authorized to appoint a Commission to investi-
gate questions pertaining to the issuance of stocks and bonds
by railroad corporations, subject to the provisions of the Act
to regulate commerce, and the power of Congress to regulate or
affect the same, and to fix the compensation of the members
of such Commission. Said Commission shall be and is hereby
—188—
authorized to employ experts to aid in the work of iiKiniry and
examination, and snch clerks, stenographers, and other assist-
ants as may be necessary, which employes
President to shall be paid such compensation as the Corn-
Appoint Commission mission maT deem iust and reasonable upon
to Investi^'ate «- •< r
Issuance oi Stocks ^ Certificate to be issued by the chairman
and Bonds. of the Commission. The several depart-
ments and bureaus of the government shall
detail from time to time such officials and employes and fur-
nish such information to the Commission as may be directed
by the President. For the purpose of its investigations the
Commission shall be authorized to incur and have paid upon
the certificate of its chairman such expenses as the Commission
shall deem necessary: Provided, however, That the total ex-
pense authorized or incurred under the provisions of this sec-
tion for compensation, employes, or otherwise, shall not ex-
ceed the sum of twenty-five thousand dollars.
Additional Provision — Act June, 1910. That no inter-
locutory injunction suspending or restraining the enforcement,
operation, or execution of any statute of a State by restraining
the action of any officer of such State in the enforcement or
execution of such statute shall be issued or granted by any
justice of the Supreme Court, or by any circuit court of the
United States, or by any judge thereof, or by any district judge
acting as circuit judge, upon the ground of the unconstitu-
tionality of such statute, unless the applica-
Interlocutory tion for the Same shall be presented to a
Stitme! No??o* justice of the Supreme court of the United
Be Issued. States, or to a circuit judge, or to a district
judge acting as circuit judge, and shall be
heard and determined by three judges, of
whom at least one shall be a justice of the Supreme court of
the United States or a circuit judge, and the other two may
be either circuit or district judges, and unless a majority of
said three judges shall concur in granting such application.
Wherever such application as aforesaid is presented to a jus-
tice of the Supreme court of the United States, or to a judge,
he shall immediately call to his assistance to hear and deter-
—189—
mine the application two other judges : Provided, however,
That one of such three judges shall be a justice of the ^Supreme
court of the United States or a circuit judge. Said applica-
tion shall not be heard or determined before at least five days'
notice of the hearing has been given to the Governor and to the
Attorney General of the State, and to such other persons as
may be defendants in the suit: Provided, That if of opinion
that irreparable loss or damage would result to the complain-
ant unless a temporary restraining order is granted, any jus-
tice of the Supreme court of the United States, or any circuit
or district judge, may grant such temporary restraining order
at any time before such hearing and determination of the ap-
plication for an interlocutory injunction, but such temporary
restraining order shall only remain in force until the hearing
and determination of the application for an interlocutory in-
junction upon notice as aforesaid. The hearing upon such ap-
plication for an interlocutory injunction shall be given prece-
dence and shall be in every way expedited and be assigned
for a hearing at the earliest practicable day after the expiration
of the notice hereinbefore provided for. An appeal may be
taken directly to the Supreme court of the United States from
the order granting or denying, after notice and hearing, an in-
terlocutory injunction in such case.
Additional Provision — Act 1910. That this Act shall
take effect and be in force from and after the expiration of
sixty days after its passage except as to sec-
Time of Taking tions twelve and sixteen, which sections
Effect. shall take effect and be in force immedi-
ately. (Explanation — These section num-
bers refer to sections 12 and 16 of the amendments as passed
June 18, 1910. Section 12 is section 15 of this book and section
16 is the provision act at the bottom of page 31 and top of this
page.)
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(VA 000 744 281 /