50



ADVANCED RATES, 22 (a) (f)



VII. REPARATION.

See Reparation. 2 (k), (I), (kk), 9
(a), (b), (c), 16 (fff), (ggg), (nnn),
(qqq), (vvv), 20 (a).

22. In General.
See Claims.

(a) When a rate is advanced and the
increased rate is condemned by the
amount of the advance a much more sat-
isfactory basis for an award of repara-
tion is afforded than in the present case,
where so far as changes have occurred
they have been at least for the most part
reductions in a territory where changes
in conditions have taken place which
contribute in greater or less degree to
a present showing of unreasonableness
in existing rates. Anadarko Cotton Oil
Co. v. A. T. & S. F. R. R. Co., 20 I. C.
C. 43, 50.

(b) Complainant, a large lumber cor-
poration, operated a lumber road con-
necting its timber tract with the Cen-
tral of Ga. Ry. under a contract whereby
it received a division of 2c per 100 Ibs.
upon all traffic delivered to the trunk
line. It also carried freight for small
competitors located on the tap line.
Eventually an advance was made in the
lumber rate of 2c per 100 Ibs. by the
trunk line and the division to the tap line
was increased to 5c per 100 Ibs. It is
found that the reasonable cost of hauling
the lumber of the tap line is 2c per 100
Ibs., and that the advance in rate by the
trunk line was unreasonable. HELD,
that the tap line so far as it was oper-
ated in the interests of the complainant
was a plant facility and not a common
carrier. That on account of the increase
in the division of rates with the tap line
it is apparent complainant did not pay
the increased rate. Reparation denied
Kaul Lumber Co. v. C. of Ga. Ry. Co., 20
I. C. C. 450.

(c) Complainant shipped snap corn
Calvin, Okla., to DeQueen and Wilton,
Ark., under a joint rate of 23c. Prior to
date of shipment the rate had been 19c
but was advanced at time of shipment
but the tariff not posted at Calvin. Had
this been done the increased rate would
have been included in the price of the
corn, which was sold f. o. b. destination
HELD, reparation should be awarded on
account of the failure of the carrier to
post the tariff changing the rate. Ca
nadian Valley Grain Co. v. C. R. I. & P
Ry. Co., 19 I. C. C. 108.



(d) Defendants advanced the rate on
emons from Southern California to east-
ern destinations from $1 to $1.15 per 100
bs. Before the advanced rates became
effective an injunction was issued by the
Circuit Court of the U. S. for the District
)f Southern California in favor of cer-
;ain of the complainants in this proceed-
ng against the collection of the advanced

rate. HELD, if in any case the advanced
rate has been paid, reparation will be
allowed on the basis of the $1 rate upon
proper proceedings. Arlington Heights
Fruit Exch. v. S. P. Co., 19 I. C. C. 148,
155.

(e) Defendants advanced in 1907 rail
and lake rates from the Atlantic seaboard
and other eastern points of origin to

hicago and other western destinations.
The advances were to cover the cost of
marine insurance, which for the first time
was furnished as part of the rate. The
Commission, in 13 I. C. C. 258, 15 I. C. C.
577 (rehearing), held the rates were un-
reasonable unless shippers were ade-
quately protected by insurance. For two
years great uncertainty prevailed as to
the extent of protection given by the
carriers, but ultimately the tariffs were
adjusted in conformity with its sugges-
tions. During this period complainants
insured their shipments themselves and
also paid the increased rate. The orig-
inal petition filed by complainants con-
tested the advances and prayed repara-
tion, and this supplemental petition ask-
ing reparation to the amount of the in-
surance paid during the period of uncer-
tainty was filed soon after final decision
in the original case. HELD, complain-
ants have acted with due diligence; that
the exact measure of the difference be-
tween the rate which was exacted and
the rate found to be reasonable by the
Commission in the original proceeding
was the amount paid to secure the in-
surance; that by the payment of the un-
reasonable rate the complainants had
been damaged in precisely that amount.
Reparation awarded. Wyman, Partridge
& Co. v. B. & M. R. R., 19 I. C. C. 551.

(f ) Carriers who concur in establishing
an unlawful advance in rates are not
thereby rendered jointly and severally
liable for damages resulting therefrom,
where they did not participate in the
particular rate or receive any part of the
overcharge in question. Nicola, Stone
& Myers Co. v. L. & N. R. R. Co., 14
I. C. C. 199, 209.



ADVANCED RATES, 22 (g) ALASKA, I (a)



51



(g) A rate on lumber was in 1904
raised from 75 to 85c and in 1908 was
found to be unreasonable to the extent
of lOc. The shippers paying said excess
were probably not themselves damaged
since they simply added same to the
selling price and cast the burden upon
the public. HELD, the shippers should
not be permitted to slumber upon their
rights and to accumulate damages
against the carriers and should be
awarded reparation only for shipments
plaint. Burgess v. Transcontinental
made since the date of filing the corn-
Freight Bureau, 13 I. C. C. 668, 680.

(h) Rates on lumber were increased in
1903. The complaint was filed in 1907.
Although the rates attacked were proved
to be unreasonable at the time of the
hearing, no evidence was offered to show
them unreasonable prior to 1903. HELD,
on account of the laches of complainant
and the lack of proof, reparation could
not be awarded on shipments made prior
to the date of filing the complaint. Thomp-
son Lumber Co. v. I. C. R. R. Co., 13

I. C. C. 657, 667.

ADVERTISING.

I. OF EXCURSION TICKETS.

II. AS REBATES.

See Facilities and Privileges, 1 (I),
21 (n).

I. OF EXCURSION TICKETS.

(a) Good faith to the public requires
carriers to state in their advertisements
of their excursions the total, amount
which will be exacted for the trans-
portation privilege, of which validation
is a part and for which a fee of 50 cents
is charged, but it is difficult to see how
it can be held to be a violation of the
Act to exact a part of the tariff rate at
the ticket office when the ticket is sold,
and the balance of that rate at the vali-
dating agency when the ticket is vali-
dated. Riter v. O. S. L. R. R. Co., 19 I.
C. C. 443, 444.

II. AS REBATES.

See Crimes, 7 (b), (bb), (c).
(a) The fact that a state statute
under which a railroad is organized per-
mits it to issue transportation to pub-
lishers in exchange for advertising does
not prevent such an arrangement be-
tween the carrier and publishers from
being in violation of the provisions of
the Act forbidding tbf carrier to accept



rates "less than and different" from the
rates exacted from the general public.
Chi. Ind. & L. Ry. Co. v. U. S., 219 U. S.
486, 494; 31 Sup. Ct. 272, 55 L. ed. 305.

(b) Under the Act a passenger has no
right to buy tickets with services, adver-

ising, releases or property, nor can the
railroad company buy services, advertis-
ing, releases or property with transpor-
l ation. The statute manifestly means
that the purchase of a transportation
ticket by a passenger and its sale by the
company shall be consummated only by
the former paying cash and by the latter
receiving cash of the amount specified
in the published tariffs. L. & N. R. R.
v. Mottley, 219 U. S. 467, 477; 31 Sup.
Ct. 265, 55 L. ed. 297.

(c) A contract by which a carrier
agrees to furnish transportation to a
publisher and his employes in exchange
for advertising space at the regular ad-
vertising rates of the publisher, violates
^he provisions of the Act forbidding the
furnishing of transportation at rates
"less than and different" from those ex-
acted from the general public. Chi. Ind.
& L. Ry. Co. v. U. S., 2:9 U. S. 486, 494,
31 Sup. Ct. 272, 55 L. ed. 305.

(d) A contract between a magazine
publisher and a railroad by which the
'atter is to furnish transportation to be
paid for by advertising space supplied
by the former is in violation of the
Elkins Act of Feb. 19, 1903, as amended
by the Hepburn Law of June 29, 1906,
in that a different compensation is pro-
vided for than that specified in the law-
fully published tariffs. U. S. v. C. I. &
L. Ry. Co., 163 Fed. 114, 115.

AGENCY.

See Crimes. 15; Facilities and Priv-
ileges, 21 (a); Foreign Commerce,
1 (f); Passenger Fares and Facil-
ities, 8 (d), 15; Routing and Mis-
routing, 7 (uu), (vv), (xx); Special
Contract, 2 (dd), (mm); Tariffs, 3
(g), (r), 3 (2); Through Routes
and Joint Rates, 15 (vv); Trans-
portation, 2 (e); Undercharges, 2
(d), (e), (f).



ALASKA.

See Courts, 3 (a),
Commerce.



(b); Foreign



I. REGULATION OF RATES.

See Interstate Commerce Commis-
sion, I.

(a) Under the amendment of June
29, 1906, the Commission has jurisdiction



52



ALASKA, I (b) ALLOWANCES, 1 (a)



over a complaint demanding a filing with
the Commission and publishing of rates
for transportation of passengers and
property between points in Alaska and
points in the Dominion of Canada and
other places, and the establishment of
through routes and joint rates between
points in Alaska and points in the State
of Washington, said amendment having
superseded the authority conferred upon
the Secretary of the Interior by section
2 of the Act of May 14, 1898. I. C. C. v.
H. S. S. Co., 224 U. S. 474, 483; 32 Sup.
Ct. 556, 56 L. ed. 849.

(b) Although mandamus will not
lie so as to interfere with the exer-
cise of its discretion by the Commis
sion, it will lie to compel the Commis-
sion to take jurisdiction over carriers
operating between Alaska and the
States and between Alaska and adja
cent foreign countries, where the Com-
mission has refused to do so pursuant
to its belief that the Interstate Com-
merce Act has conferred upon it no
authority over such carriers. I. C. C.
v. H. S. S. Co., 224 U. S., 474, 484; 32
Sup. Ct. 556, 56 L. ed. 849.

(c) Under the Act as amended,
June 29, 1906, Alaska is a territory to
which the provisions governing rates
apply. Humboldt S. S. Co. v. I. C. C.,
37 App. Gas., D. C., 266, 274.

(d) The Supreme Court of the Dis-
trict of Columbia will issue a writ of
mandamus to compel the Interstate
Commerce Commission to entertain a
petition by a steamship company to
compel the filing with the Commission
of rates and the establishment of
through routes and joint rates on
traffic moving between Alaska and ad-
jacent foreign countries and Alaska
and the State of Washington. Hum-
boldt S. S. Co. v. I. C. C., 37 App. Cas.,
D. C., 267, 275.

(e) Alaska is not a territory of the
United States regularly organized
either in the traditional or in the
ense in which the phrase is used in
the Act to Regulate Commerce, and
the Interstate Commerce Commission
therefore has no jurisdiction in the
District of Alaska. In re Jurisdiction
in Alaska, 19 I. C. C. 81, 92, 94; Hum
boldt S. S. Co. v. White Pass & Yukon
Route, 19 I. C. C. 105.

(f) The Commission has no juris-
diction to establish through routes and



joint rates from Seattle, Wash., to

Skagway, Alaska. Humboldt S. S. Co.

v. White Pass & Yukon Route, 19 I.
C. C. 105.

(g) The Commission has no jurisdic-
tion over an alleged discrimination in
wharf facilities in Alaska. Humboldt
S. S. Co. v. W. P. & Y. Route, 19 I. C.
C. 105.

ALLOWANCES.

I. CONTROL AND REGULATION.

1. Commission's right to investi-
gate.

2. Power to prescribe.
3. Effect of order.

II. PUBLICATION AND TARIFFS.

4. Obligation to file.
5. Effect of publication.
6. Construction.

III. DISCRIMINATION.

7. Obligation to treat all alike.
8. Particular allowances.

(1) Compressing cotton.

(2) Cooperage.

(3) Elevation of grain.

(4) Lighterage.

(5) Spotting cars.

(6) Staking.

(7) Transfer.

IV. LEGALITY OF ALLOWANCES.

9. In general.

10. Transportation service per-
formed by shipper.

811. Transportation facility.

12. What is not transportation
service.

(1) Accessorial or inci-

dental service.

(2) Operation of plant

facility.

V. REASONABLENESS OF AL-
LOWANCES.
$13. In general.
VI. DAMAGES AND REPARATION.

14. In general.
VII. AS REBATES.

15. In general.

VIII. CRIMINAL LIABILITY.

16. In general.

CROSS-REFERENCES.
See Divisions; Lighterage, 3; Tap
Lines, 9.

I. CONTROL AND REGULATION.

1. Commission's Right to Investigate.

(a) The Commission has jurisdiction
under section 13 of the Act to inquire



ALLOWANCES, 2 (a) 3 (b)



53



Into the lawfulness of allowances made
by carriers to shippers for the alleged
transfer by the latter from their refin-
eries or warehouses to the cars of de-
fendants under a proceeding instituted
by the Commission and without the fil-
ing of any complaint by the shipper,
where the defendants have been duly
brought in and granted a hearing. In
Re Allowances for Transfer of Sugar,
14 I. C. C. 619, 625, 627.

2. Power to Prescribe.

See Commerce Court, 3 (c); Courts,
10 (a); Facilities and Privileges,
1 (d); Special Contract, 4 (1),
(h), (k), (m); Tap Lines, 2 (a),
(b), (c), (d).

(a) Under the Act as amended June
29, 1906, elevation is made such a part
of transportation as to bring it within
the jurisdiction of the Interstate Com-
merce Commission, which is authorized
to determine what is a reasonable al-
lowance to the shipper for elevation
services. U. P. R. R. Co. v. Updike
Grain Co., 222 U. S., 215, 218; 32 Sup.
Ct. 39, 56 L. ed. 171.

(b) In a suit for damages by a coal
shipper against a railroad for unjust
discrimination contrary to the Act to
Regulate Commerce in making allow-
ances for services rendered by the lo-
comotives of the plaintiff's competitors
in hauling cars over private tracks, the
U. S. Circuit Court holds it has juris-
diction without a prior application to
the Interstate Commerce Commission,
pending the decision of such question
of jurisdiction on a pending appeal in
another case. Mitchell Coal & Coke
Co. v. Pennsylvania R. R. Co., 181 Fed.
403, 410.

(c) Treatment of grain in the ele-
vators, the cleaning, clipping, mixing,
inspecting, and grading of it, is a trade
service; it is no part of transportation
and is not a transportation service. No
power has ever been granted to the
Interstate Commerce Commission to
regulate, to prohibit, to separate by
miles from the service of elevation and
transfer in transit or from any other
transportation service, or to interfere
with this trade service. Peavey & Co.
v. U. P. R. Co., 176 Fed. 409, 419.

(d) The Interstate Commerce Com-
mission has no power to forbid carriers
from paying or allowing for the elevation
and transfer of grain in transit reason-
able compensation, because there is a



possibility of a future violation of the law
arising out of such allowances. Peavey &
Co. v. U. P. R. Co., 176 Fed. 409, 419.

(e) By section 15 of the Amended Act
the Commission has power to limit and
prescribe the amount that a carrier may
pay a shipper for the performance of a
part of the carrier's duty and service in
connection with the transportation of his
freight. Sterling & Son v. M. C. R. R.
Co., 21 I. C. C. 451, 454.

(f) Each case involving an allowance
nust be determined upon the special
facts and circumstances presented. Mer-
chants Dispatch Storage Co. v. I. C. R. R.
Co., 17 I. C. C. 98, 106.

(ff) Where a defendant railroad has
agreed with a shipper to allow it a cer-
tain sum for services performed by
the shipper in moving cars over switch-
ing tracks connecting the storage tracks
with the shipper's buildings and fac-
tories, the Commission has no authority
to enforce the specific performance of
such a contract, or to award damages
for the breach thereof. General Electric
Co. v. N. Y. C. & H. R. R. R. Co., 14
I. C. C. 237, 242.

(g) Free elevation of grain may be pro-
hibited by the Commission since there is
no difference in principle between the giv-
ing of the service and the giving of the
money with which to buy the service.
Traffic Bureau, Merchants' Exchange v.
C. B. & Q. R. R. Co., 14 I. C. C. 317, 330.

3. Effect of Order.

See Interstate Commerce Commis-
sion, 5.

(a) Where the principle of a decision
prohibiting elevator allowances applies
everywhere, the Commission expects that
all interests, though not parties to the
proceeding, will conform to the ruling of
the Commission. Traffic Bureau, Mer-
chants' Exchange v. C. B. & Q. R. R. Co.,
14 I. C. C. 510.

(b) Where upon a petition to reopen
a former decision of the Commission
prohibiting elevator allowances, no new
fact or argume-t is presented, and while
petitioners were not parties to said for-
mer decisions, the interests which they
represent were fully considered, the
petition will be denied. Traffic Bureau,
Merchants' Exchange v. C. B. & Q. R.
R. Co., 14 I. C. C. 510.



54



ALLOWANCES, 4 (a) 7 (d)



II. PUBLICATION AND TARIFFS.

See Tariffs, II.
4. Obligation to File.

(a) Whatever charges are made, what-
ever services are performed, and what-
ever privileges are allowed by carriers,
must be stated separately in the schedules
filed with the Commission. Anderson,
Clayton & Co. v. C. R. I. & P. Ry. Co., 18
I. C. C. 340, 350.

(b) Carriers should not publish rates
in one tariff and discounts or allowances
from such rates in another tariff, or even
in another passage of the same tariff, but
wherever possible should file a net rate
as such. In re Allowances for the Trans-
fer of Sugar, 14 I. C. C. 619, 630.

5. Effect of Publication.

(a) On a shipment of cheese defend-
ant was directed by the complainant con-
signee to deliver same to a warehouse at
the point of destination. Defendant's tar-
iff provided for the absorption of a
switching charge to this warehouse. De-
fendant's agent at point of destination,
misconstruing the obligation, refused to
so switch the car and unloaded the car at
the freight house. Complainant accepted
the shipment at the freight house and
hauled the same to the warehouse with
teams. He sought to recover the cost of
drayage. HELD, complainant should have
insisted on the switching services and re-
fused to accept the car at the freight
house, and having failed so to do, could
not recover. Crosby & Meyers v. Good-
rich Transit Co., 17 I. C. C. 175, 176.

(b) Defendants quoted a rate on ex-
lake grain from Ogdensburg, N. Y., to
Boston of 3%c and relying on this quo-
tation, complainant concluded a sale and
arranged for ocean transportation of the
grain. It was the uniform custom to in-
clude elevation charges in the rate under
which ex-lake grain moved from the lake
port. Defendants' tariff, however, simply
provided a rate of 3%c between the
points in question, making no mention of
elevation charges. Complainant was as-
sessed y 2 c per bushel for elevation, in
addition to the 3%c rate. HELD, the mis-
quotation of the rate did not relieve the
defendants from their obligation to col-
lect the published rate. Ames, Brooks
Co. v. Rutland R. R. Co., 16 I. C. C. 479,
480, 481.

(c) A common carrier by contract
may not impose upon itself any burden
or grant any privilege, or perform any



service, or make any allowance with re-
spect to the traffic of a particular shipper
except under the authority of its pub-
lished tariffs, and then only when the
burden is assumed or the privilege grant-
ed or allowance made to all shippers un-
der like circumstances and similar con-
ditions. General Electric Co. v. N. Y. C.
& H. R. R. R. Co., 14 I. C. C. 237, 242.

6. Construction.

(a) Prior to Oct. 29, 1907, defendant's
tariffs provided that 25c per car would
be paid to coal shippers in box and stock
cars in the Rocky Mountain region when
car door boards were furnished by them.
On Aug. 18, 1907, defendant consented to
increase its allowance to 50c and agreed
that as to complainant the increased al-
lowance should date back to July 1, 1907.
The tariff announcing said increase was
filed and became effective Oct. 29, 1907.
HELD, defendant could not lawfully al-
low complainant the increased rate for
the period from July 1 to Oct. 29 under
section 6 of the Act. Victor Fuel Co. v.
A. T. & S. F. Ry. Co., 14 I. C. C. 119, 120.

III. DISCRIMINATION.

7. Obligation to Treat All Alike.

See Common Carrier, 3 (f ) ; Pro-
cedure Before Commission, 11 (t).

(a) Whatever allowances are made
must be just, reasonable and non-discrim-
inatory. Suffern Grain Co. v. I. C. R. R.
Co., 22 I. C. C. 178, 183. Federal Sugar
Refining Co. v. B. & O. R. R. Co., 20 I. C.
C. 200, 212. Anderson, Clayton & Co. v.
C. R. I. & P. Ry. Co., 18 I. C. C. 340, 350.
Brook-Rauch Mill & Elevator Co. v. M.
P. Ry. Co., 17 I. C. C. 158, 161-163.

(b) To pay an elevation allowance to
one shipper or at one place while declin-
ing to pay it elsewhere is undue discrim-
ination unless justified by circumstances.
Suffern Grain Co. v. I. C. R. R. Co., 22 I.
C. C. 178, 183.

(c) A carrier is not warranted under
section 15 of the Act in making an al-
lowance to a shipper who provides a fa-
cility and performs a service in the trans-
portation of his own property while re-
fusing a similar allowance to another
shipper competing in the same markets
in the same line of business who provides
a similar facility and performs the same
service in the transportation of his prop-
erty. Federal Sugar Refining Co. v. B.
& O. R. R. Co., 20 I. C. C. 200, 212.

(d) No violation of the Act can be
predicated solely upon the fact that a



ALLOWANCES, 8 (1) (a) (d)



55



carrier makes with one independent com-
pany a contract more favorable than with
another for a service which that carrier
is bound or undertakes to perform. The
Act deals only with the obligation of car-
riers as carriers and in no way attempts
to regulate or interfere with matters in
involving their duties to shippers or pas-
sengers as such. Compression of cotton
is a service which the carrier procures
for its own convenience, and when that
service is performed in such a manner
as not to prejudice or prefer a particular
shipper or community, the Act does not
limit the freedom of the carrier to mak-
ing contracts in respect thereto. Mer-
chants' Cotton Press & Storage Co. v. I.
C. R. R. Co., 17 I. C. C. 98, 104.

8. Particular Allowances.
8. (1) Compressing Cotton.

See Compress Companies and
Charges, 1 (e) ; Facilities and
Privileges, 3.

(a) Carriers have the right to com-
press cotton in transit. They also have
the right to grant or allow to shippers
or owners of cotton the privilege to con-
centrate uncompressed cotton at desig-
nated compresses on their lines for such
treatment as the shippers or owners may
desire to give it with the right of the
shippers or owners to deliver the cotton
back to the carriers for transportation to
interstate or foreign destination at the
through rates from point of origin. What-
ever charges are made must, however, be
just, reasonable and non-discriminatory.
They may not pay to compress companies
any unjust or reasonable charge. Ander-
son, Clayton & Co. v. C. R. I. & P. Ry.
Co., 18 I. C. C. 340, 350.

(b) An allowance made at South Mem-
phis for handling cotton from inter-
change tracks to compresses and ware-
houses in order to place South Memphis
dealers on a parity with Memphis deal-
ers, where there is a free store delivery
is not objectionable. Merchants' Storage
Co. v. I. C. R. R. Co., 17 I. C. C. 98, 103.

(c) Cotton shipped into Memphis was
drayed back and forth by defendant car-
riers to compressing plants located in
that city to be compresed, and then
carried from Memphis to destination
points at the through rate. Defendants
paid the expense of drayage and com-
pression to private companies allowing
17 V 2 c and 50c per bale for drayage and
compression respectively. Complainant



was a compressor of cotton at Memphis,
but not a shipper thereof. Defendant
warehouse company established a com-
pressing plant at South Memphis, some
two miles from the municipal line. The
stock in the company was principally
owned by dealers and shippers of cotton.
The company connected its plant with
the lines of defendants by a system of
switch tracks. On cotton compressed by
the defendant warehouse the defendant
carriers allowed lOc per bale for switch-
ing the same to and from its warehouse,
and 50c per bale for compression. De-
fendant carriers charged a rate of 20c
a bale for hauling cotton from warehouse
in Memphis to South Memphis. Com-
plainant alleged that the stockholders of