were the only shippers of sugar from
New York. The allowance purported
to cover the cost of cartage to the
terminals of the carriers. It was in
fact paid where no cartage at all was
involved and where the carriers, by
means of floats and switch tracks, re-
ceived the sugar from the store doors
of the shippers. None of the carriers
furnished cartage to shippers of sugar
but pretended to undertake to pay
shippers for furnishing cartage for
themselves. The allowances appeared
to be simply a continuance of a formor
rebate before rebates were made illegal
and of an allowance made to sugar re-
fining interests for routing the ship-
ments over the lines of carriers, accord-
ing, to a -percentage agreed upon< by the
latter. HELD, the allowance amounted
to a rebate, was unlawful, and should
be withdrawn. In Re Allowances for



ALLOWANCES, 9 (a) 10 (c)



61



Transfer of Sugar, 14 I. C. C. 619, 626
630.

IV. LEGALITY OF ALLOWANCES.
9. In General.

(a) Allowances and divisions to tap
lines recognized by the Commission, as
common carriers must have a proper re-
lation to the service performed and be
such in amount as not to effect a rebate
to the industry. The Tap-line Case, 23
I. C. C. 277, 295.

(aa) Wherever an abnormal division
is allowed to a railroad which is tied
up with" an industry, there results an
indirect and hidden rebate to the ship
per, because of his ownership of the
railroad. In Re Divisions of Joint Rates
on Coal, 22 I. C. C. 51, 55.

(b) The 15th section of the Act as
amended clearly implies that a just and
reasonable allowance may be made to the
owner of property transported when such
owner renders a service connected with
or furnishes an instrumentality used in
the transportation. Federal Sugar Re-
fining Co. v. B. & O. R. R. Co., 17 I. C. C.
40, 48.

(bb) The provision in the tariffs re-
quiring a return to defendant of the car
within forty-eight hours as a condition
precedent to the payment of an allow-
ance is unjust, unreasonable and unduly
discriminatory. Nebraska-Iowa Grain
Co. v. U. P. R. R. Co., 15 I. C. C. 90.

(c) The ownership by a shipper of a
rail line which serves that shipper calls
for the closest scrutiny to ascertain
whether, through divisions or allow-
ances, rebates are made to the shipping
own-er. Crane R. R. Co. v. P. & R. Ry
Co, 15 I. C. C. 248, 253.

(cc) The delivery of goods to a carrier
and the receiving of goods from a car-
rier are duties devolving upon the
shipper, for which the carrier cannot be
compelled to pay, and for them to make
allowances based upon the performance
by shippers of services which shippers
are legally bound to render for them-
selves is a violation of the Act to Regu-
late Commerce. In the Matter of Allow-
ances for the Transfer of Sugar, 14 I. C.
C. 619, 627.

(d) In determining- whether a shipper
is entitled to an allowance from a rail-
road for services performed by the ship-
per in moving cars between the storage



tracks and the shipper's buildings and
factories, no special weight is to be given
to the fact that for a number of years the
railroad actually paid the complainant
for such service, since the question is one
of general application and must be de-
termined not by the practice of particular
shippers, but by considerations applicable
to all carriers. General Electric Co. v.
N. Y. C. & H. R. R. R., 14 I. C. C. 237, 242.

(dd) Reparation awarded because of
failure to pay elevator allowances for
loading out grain prior to August 28,
1906, in accord with rules and practices
then in vogue, but not on file with the
Commission. Rosenbaum Grain Co. v.
C. & E. I. R. R. Co., Unrep. Op. 298.

10. Transportation Service Performed
by Shipper.

See Tap Lines, 3 (1); Transporta-
tion, 1.

(a) Whether a company or person
claiming to be a common carrier is a
common carrier at all and for all pur-,
poses is a question of fact, and whether
the service performed for a particular
person is a service of transportation or
an industrial service is also a question of
fact. The Tap-line Case, 23 I. C. C.,
277, 292.

(b) The fact that the rails, locomo-
tives and cars of an industry have been
turned over to an incorporated railroad
company, owned and operated by the in-
dustry or in its interest, does not divest
those appliances of their character as a
plant facility if such in fact is the case.
If the rails were laid and the equipment
acquired for the use of the industry as
a facility in the process of manufacture
and production, and are so used, the fact
that some outside traffic may be carried
over the same rails does not modify the

iharacter of what is done over them for

he industry. If in such a case the
tracks and equipment are a facility of the
plant and are so used in the process of
manufacture, what is thus done for the

ontrolling industry cannot be regarded
as a service of transportation. It is clear
that a division allowed by a public carrier
out of the rate under such circumstances

s a rebate to the industry. The test is,
what is the real relation to the industry
of the tap line. The Tap-line Case, 23

. C. C. 277, 292.

(c) The common ownership of an in-
dustry and a short line serving it is not
n itself sufficient to divest the railroad
f its status as a common carrier. On



62



ALLOWANCES, 10 (d) 11 (c)



the other hand, the fact that the rails,
locomotives and cars of an industry have
been turned over to an incorporated rail-
road company owned and operated by the
industry or in its interest does not divest
those appliances of their character as a
plant facility if such in fact is the case.
A line must be drawn at some point be-
tween what is transportation and what
is industry and between a facility of
transportation and a plant facility or tool
of the industry. Each case, however,
must stand on its own facts. On the facts
shown of record the service performed
for the proprietary lumber companies by
the following tap lines is not a service
of transportation by a common carrier:
Malvern & Freeo Valley Railway, Wilmar
& Saline Valley Railroad, Arkansas &
Gulf Railroad, Little Rock, Maumelle &
Western Railroad, Beirne & Clear Lake
Railroad, Mississippi, Arkansas & West-
ern Railway, Bearden & Ouachita River
Railroad, Arkansas Eastern Railroad,
Blytheville, Burdette & Mississippi
River Railway, Brookings & Peach Or-
chard Railroad, Crossett Railway, For-
dyce & Princeton Railroad, Homan &
Southeastern Railway, Little Rock, Sheri-
dan & Saline River Railway, L'Anguille
River Railway, Ouachita Valley Railway,
Southern Pine System, Black Bayou Rail-
road, Bodcaw Valley Railway, Mill Creek
& Little River Railway, Red River &
Rocky Mount Railway, Woodworth &
Louisiana Central Railway, Freeo Valley
Railroad, Natchez, Urania & Ruston
Railway, Bernice & Northwestern Rail-
way, Dorcheat Valley Railroad, Mangham
& Northeastern Railway, Peach River
Lines, Jefferson & Northwestern Railway,
Beaumont & Saratoga, Angelina &
Neches River Railroad. The Tap-line
Case, 23 I. C. C. 277.

(d) ' What is a plant facility cannot
also be a common carrier for the plant,
and what is an industrial service cannot
also be a service of transportation. The
Tap-line Case, 23 I. C. C. 277, 298.

11. Transportation Facility.

See Tap Lines, 3 (1); Transporta-
tion, 1.

(a) The lumber rate west of the Mis-
sissippi River applies from the mill. In
those cases where the mill is situated a
reasonable distance of not less than 1,000
feet from the trunk line, that carrier may
arrange with the lumber company to per-
form the service for it of transportating
the loaded cars from the mill to the



trunk line, and may make a reasonable
allowance to the . lumber company for
such service under section 15. The Tap
Line Case, 23 I. C. C. 549, 552, 553, 559,
568, 596, 599, 603, 605, 607, 608, 611.

(b) Where a mill is distant more than
three miles from a trunk line, and is
connected with the latter by a tap line
not recognized by the Commission as a
common carrier, no allowance or division
may lawfully be made by a trunk line
either to the lumber company or to its
tap line. Such a lumber company, al-
though using rails, stands in no better
position under the law with respect to
its lumber than does a lumber company
that uses other means of delivering its
lumber to a public carrier. Where a
mill is more than three miles distant from
a trunk line and is connected with it by
a tap line organized as a common carrier
and so recognized by the Commission,
the mill is to be regarded as a shipping
point equally with all other mill points
in its rate group; and the lumber rate
is to be regarded as in effect from the
mill, the tap line being entitled to a
division thereof, according to the extent
of its participation in the through serv-
ice under the through rate. The Tap
Line Case, 23 I. C. C. 277, 295.

(c) Under their tariffs the public car-
riers interpret the lumber rate as apply-
ing from mills west of the Mississippi
River, as far as three miles from their
own lines. If a lumber company having
a mill within that distance of a trunk
line undertakes by arrangement with the
trunk line to use its own power to set
the empty car at the mill and to deliver
it when loaded to the trunk line, it is
doing for itself what the trunk line under
its tariffs offers to do under the rate.
In such a case the lumber company may
therefore fairly be said to furnish a
facility of transportation for which it
may reasonably be compensated under
section 15, whether its tap line is in-
corporated or unincorporated. But an
allowance under such circumstances is
lawful only when the trunk line prefers
for reasons of its own and without dis-
crimination to have the lumber company
perform the service. It is not lawful
when the lumber company refuses to
permit the trunk line to do the work.
No allowance, however, ought to be made
by a trunk line to a lumber company
where the mill is within 1,000 feet of
the trunk line. An allowance under such



ALLOWANCES, 11 (d) 12 (1) (a)



circumstances would be a mere device to
effect an unlawful payment to the lumber
company. The same rule would apply
where a short switch track to the mill
has been torn out or is still available,
but not used, in order to give the ap-
pearance of a longer haul to the mill
over a spur or switch track constructed
by the lumber company or by its tap line,
to secure an allowance. The Tap Line
Case, 23 I. C. C. 277, 294.

(d) In the cases of the following tap
lines it is held that they may receive as
maximum allowances the divisions men-
tioned and the switching charges pre-
scribed: Saline River Railway, 2c per
100 Ibs.; Warren & Ouachita Valley Rail-
way, a switching rate of $2.50 per car
from the Iron Mountain R. R. and 2c per
100 Ibs. from the Rock Island R. R.; El
Dorado & Wesson Railway, 2c per 100
Ibs.; Thornton & Alexandria Railway, Ic
per 100 Ibs.; Doniphan, Kensett & Searcy
Railway, a switching charge of $2.50 per
car from the Iron Mountain R. R. and Ic
per 100 Ibs. from the Rock Island R. R.;
Fourche River Valley & Indian Territory
Railway, a switching charge of $1.50 per
car; Prescott & Northwestern Railroad,
$1.50 per car; Caddo & Choctaw Railroad,
$1.50 per car; Memphis, Dallas & Guif
Railroad, over the Nashville Division
only, the Iron Mountain may allow it a
switching charge of $2 per car, the con-
necting carriers at Ashdown may allow
it 2c per 100 Ibs.; Crittenden Railroad, 2c
per 100 Ibs. from the Rock Island and $3
per car switching from the Iron Mountain
R. R.; De Queen & Eastern Railroad.
$1.50 per car; Central Railway of Arkan-
eas, iy 2 c per 100 Ibs.; Gulf & Sabine
River Railroad, Ic per 100 Ibs.; Sibley,
Lake Bisteneau & Southern Railway, Ic
per 100 Ibs.; North Louisiana & Gulf
Railroad, 2c per 100 Ibs. on the products
of the hardwood mill only, except when
again milled or planed at Hodge, La.;
Arkansas Southeastern Railroad, 2c per
100 Ibs. from the Iron Mountain R. R.
only; Red River & Gulf Railroad, $2 per
car for switching from the Iron Mountain
and 2c per 100 Ibs. from the Rock Island
and other trunk lines on the product of
the mill at Long Leaf, La.; Tremont &
Gulf Railway, from the Iron Mountain R.
R. and the products of the Rochelle mill
a switching charge of $1.50 per car, and
on the product of various mills divisions
of l^c to 2c per 100 Ibs.; Nacogdoches
& Southeastern Railroad, $1.50 per car
for switching only from the Houston East



& West Texas; Texas Southeastern Rail-
road, $2 per car for switching, from the
Houston East & West Texas and 2c per
100 Ibs. from other trunk lines; Timpson
& Henderson Railway, 2c per 100 Ibs.;
Shreveport, Houston & Gulf Railroad,
l%c per 100 Ibs.; Groveton, Lufkin &
Northern Railway, from the Missouri,
Kansas & Texas Railway only, a switch-
ing charge of $2 per car, and from other
trunk lines 2c per 100 Ibs.; Moscow,
Camden & San Augustine Railway, l^c
per 100 Ibs.; Trinity Valley & Northern
RailwSy, Ic per 100 Ibs.; Trinity Valley
Southern Railroad, Ic per 100 Ibs.; Caro
Northern Railway, $2 per car; Butler
County Railroad, $1.50 per car; Deering
Southwestern Railway, l%c per 100 Ibs.;
Mississippi Valley Railway, l^c per 100
Ibs.; Paragould & Memphis Railway,
switching charges of from $2 to $3 per
car; Salem, Winona & Southern Railroad,
l^c per 100 Ibs.; Fernwood & Gulf Rail-
road, a switching charge of $2.50 a car
from the Illinois Central only and 2c per
100 Ibs. from the New Orleans Great
Northern R. R.; New Orleans, Natalbany
& Natchez Railway, $1.50 per car for
switching from two mills only; Alabama
Central Railroad, l^c per 100 Ibs.;
Washington & Choctaw Railway, $1.50
per car. The Tap Line Case, 23 I. C. C.
549-650.

12. What Is not Transportation Serv-
ice.

12. (1) Accessorial or Incidental
Service.

(a) Arbuckle Bros, operate their own
property under a contract for the de-
fendant carriers, as the carriers' Jay St.
terminal in Brooklyn. Under their con-
tract, Arbuckle Bros, carry their sugar
to this terminal in their own lighters, re-
ceiving an allowance therefor. Defend-
ants are under no liability until the ton-
nage is delivered to them in New Jersey.
Two-thirds of the traffic handled through
the Jay St. terminal by Arbuckle Bros, as
agent for the defendant carriers is for
the public generally. HELD, that in
lightering their sugar to the Jersey shore
and there delivering it to the defendants,
Arbuckle Bros, perform a purely acces-
sorial service towards their own ship-
ments and merely incident thereto and
do not perform a transportation service
as agents of the carriers. It therefore
may not be paid for by the defendants
under section 15 of the Act, while refus-



ALLOWANCES, 12 (1) (b) 12 (2) (cc)



ing a similar allowance to another
shipper providing a similar facility and
performing the same service in the trans-
portation of his property. Federal Sugar
Refining Co. v. B. & O. R. R. Co., 20 I. C.
C. 200, 209, 212.

(b) The merchandising of grain is no
part of the duty of a carrier and for car-
riers to pay shippers for any of the op-
erations of the merchandising is to make
reductions from published rates by sub-
terfuge. Gund & Co. v. C. B. & Q. R. R.
Co., 18 I. C. C. 364, 367.

(c) Defendant carrier's terminals "are
located at Jersey City and all shipments
made over its lines from across New
York harbor must be lightered to its
docks at that point. This service is per-
formed by the defendant without cost to
shippers. Complainant found it neces-
sary to fill all the orders of its customers
on the day on which they were received
and defendant was unable to furnish
barges and boats promptly enough to ac-
complish this purpose, sometimes com-
pelling complainant to wait three or four
days. Complainant took the matter of
lighterage into its own hands and per-
formed the service on its own boats. It
sought to recover 3c per 100 Ibs. for this
service. Some years after the shipments
in question the defendant provided in its
tariffs for the payment of 3c for this
lighterage service when performed for
the convenience of defendant, but at the
time of shipment no tariff was in effect
authorizing defendant to pay for light-
erage performed by the shipper. HELD,
under the facts disclosed, the complain-
ant having performed such lighterage
service for its own convenience and to
meet the special requirements of its busi-
ness, was not entitled to compensation.
Barrett Mfg. Co. v. C. R. R., etc., Co., 17
I. C. C. 464, 466.

(d) The storage of grain beyond the
elevation period of 10 days and the mix-
ing, weighing and inspection of the same
are commercial services and are in no
sense a part of elevation, as defined ir,
the Act. In the Matter of Allowances to
Elevators by the U. P. R. R. Co., 14 I. C.
C. 315, 316.

12. (2) Operation of Plant Facility.

(a) The lumber rate west of the Mis-
sissippi River applies from the mill. In
those cases where the mill is situated
less than 1,000 feet from the trunk line



that carrier may not lawfully make any
allowance to the lumber company for
hauling the loaded cars from the mill to
the trunk line. The Tap Line Case, 23
I. C. C. 549, 552, 569, 576, 594, 597, 599,
601, 606, 608, 611, 618, 632, 641, 645, 646.

(b) In the cases of the following tap
lines it is held that they are mere plant
facilities and not entitled to allowances,
either as divisions or switching charges:
Missouri & Louisiana Railroad, Saginaw &
Ouachita River Railroad, Warren, Johns-
ville & Saline River Railway, Blytheville,
Leachville & Arkansas Southern Rail-
road, Gould Southwestern Railway,
Memphis, Dallas & Gulf Railroad, as to
the switch movement from Graysonia,
Ark., only; Louisiana & Pine Bluff Rail-
way, Mansfield Railway, Louisiana &
Pacific Railway, Roosevelt & Western
Railroad, Louisiana Central Railroad,
North Louisiana & Gulf Railroad, as to all
yellow pine mills only; Monroe & South-
western Railway, Victoria, Fisher &
Western Railroad, Ouachita & North-
western Railroad, Lake Charles Railway,
Louisiana Railway, Zwolle & Eastern
Railway, Sabine & Northern Railroad,
Xacogdoches & Southeastern Railroad, as
to allowances from the Texas & New
Orleans R. R. only; Gideon & North
Island Railroad, Poplar Bluff & Dan
River Railway, Kentwood & Eastern Rail-
way, Kentwood, Greensburg & South-
western Railroad, Liberty-White Rail-
road, Natchez, Columbia & Mobile Rail-
road. The Tap Line Case, 23 I. C. C.
549-650.

(bb) The payment of allowances or
divisions to a boat line, which is a
mere plant facility of a salt company,
is held to be an unlawful rebate. Co-
lonial Salt Co. v. M. I. & I. L., 23 I. C.
C. 358.

(c) Where a tap line is merely a
plant facility hauling logs to the mill,
and the mill itself is situated on a trunk
line, any allowance or division of rates
made by the trunk line to the lumber
company or the tap line is an unlawful
rebate. 23 I. C. C. 552, 555, 587, 597,
599, 602, 606, 613, 632, 635, 641, 642,
645, 646, 649.

(cc) Complainant, a large lumber
corporation, op-crated a lumber road
connecting its timber tract with the
Central of Ga. Ry. under a contract
whereby it received a division of 2c per
100 Ibs. upon all traffic delivered to



ALLOWANCES, 12 (2) (d) (e)



65



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 divi-
sion 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 operated 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.

(d) Tap lines connecting lumber mills
with the Cotton Belt were being allowed
from 2 to 6c for hauls varying from
practically nothing to 150 miles, leaving
the Cotton Belt's net earnings as low as
4 to 8c for its haul to Fort Worth. It
appeared that these tap lines were for-
merly owned by the mill owners, but were
subsequently incorporated and given the
form of common carriers; that for the
most part they re.ached only the forests
owned by their stockholders; that while
they held themselves out to serve the
public as common carriers, there was in
fact no public reached by them except a
negligible amount of incidental traffic;
that they did not publish and file tariffs
as required by law, join in through rates
with the railroads, file schedules of di-
visions of rates, or keep accounts in ac-
cordance with the system of accounts,
prescribed by the commission for car-
riers participating in interstate com-
merce. These conditions were true with
respect to tap lines generally over the
country. HELD, that any allowance or
division made to or with a tap line that
is owned or controlled, directly or indi-
rectly, by the lumber mill or by its offi-
cers or proprietors and that has no traffic
beyond the logs that it hauls to the mill,
except such as it may pick up as a mere
incident to its efforts to serve the mill
as an adjunct or plant facility, is an un-
lawful departure from the published
rates. Readjustment of rates suggested,
calculated to eliminate unlawful prac-
tices and give shippers reasonable rates.
(Separate opinion by Prouty, Comm'r.)
Star Grain & Lumber Co. v. A. T. & S. F.
Ry. Co., 17 I. C. C. 338, 345.



(dd) Formerly defendant delivered
loaded cars to complainant's exchange
tracks at Catasauqua. Complainant con-
structed tracks leading from the ex-
change tracks into its yards, and sup-
plied locomotives to draw the loaded cars
into its yards, and return loaded cars of
its own products. Later other indus-
tries grew up beyond complainant's plant,
and complainant extended its tracks to
such industries and charged them a
stipulated price per car for moving cars
to and from defendants' terminal. Said
other industries were allowed compensa-
tion for this service which they secured
from complainant. Subsequently com-
plainant incorporated its private railroad
and demanded that defendants make it
an allowance for hauling cars back and
forth between complainant's yards and
its team tracks. HELD, the service was
not one which the defendants owed com-
plainant a duty to perform; that de-
fendants might properly allow to other
industries compensation for the hauling
of cars to their plants, since such serv-
ice was merely the equivalent of the
service rendered by defendants in plac-
ing cars on complainant's exchange
tracks; and that complainant was not
entitled to compensation for the services
rendered by its railroad, such service be-
ing in the nature of a plant facility.
Crane Iron Works v. Central R. R. Co., 17
I. C. C. 514, 518-520.

(e) Complainant, General Electric Com-
pany of Schenectady, N. Y., filed a com-
plaint to determine its right to receive
an allowance from defendant railroads
for services performed by complainant in
moving empty and loaded cars between
the storage tracks and complainant's fac-
tories and shops. Its factory and shop
yard occupied some 180 acres of land,
and there were about 140 buildings. It
had constructed three miles of storage
tracks, together with connecting switch
tracks of standard gauge, aggregating 12
miles in length and occupying some 23
acres of land; and in addition thereto
constructed seven miles of narrow gauge
electric tracks crossing and recrossing
the standard gauge system. The switch
tracks leading to complainant's industries
were from 400 to 500 feet long. Defend-
ants had no right, and under the cir-
cumstances it was impossible for them
to make use of complainant's network of
tracks, which were under the exclusive
control of complainant. Complainant
used its own locomotives and electric



ALLOWANCES, 12 (2) (f) 14 (b)



motors in moving loaded and unloaded
cars in its yard, and performed about
112,000 carload movements a year. De-
fendants had been long accustomed to