Penn. R. R. Co., 14 I. C. C. 170, 174.

(g) Complainant alleged that a lease
by the Southern Pacific Terminal Co. to
one Young, an exporter of cottonseed
products, of a portion of its wharf to
Galveston, Tex., gave him undue prefer-
ence and advantage and resulted in un-
reasonable prejudice to competing ex-
porters. The Southern Pacific Co. urged
that it is. a holding company, and the
Terminal Company that it is a wharfage
company, and both asserted that they
are not common carriers within the
meaning of the Act, and challenged the
jurisdiction of the Commission. HELD,
that as the railroad and steamship lines
forming the so-called Southern Pacific
System are one in control and opera-
tion, are owned by the Southern Pacific
Co., and are identical in officers and
interests, and that as the Terminal Co.
was organized to furnish terminal fa-
cilities for the Southern Pacific System
at Galveston, and through shipments on
the system line pass and repass over
the docks of the Terminal Co., the lat-
ter forms a necessary link in the chain
of interstate commerce and is subject
to the Act. Eichenberg v. S. P. Co., 14
I. C. C. 250, sustained, 219 U. S. 498,
521, 31 Sup. Ct. 279, 55 L. ed. 310.

(h) In determining whether a ter-
minal company controlling a wharf is a
common carrier, it makes no difference
that the connecting railway company
does not own the terminal company di-
rectly, where the ownership of both is
vested in the same holding corporation,
and since control is an incident of
ownership, the terminal company is to
be deemed a common carrier. Eichen-



TERMINAL FACILITIES, 1 (i) 3 (c)



835



berg v. S. P. Co., 14 I. C. C. 250, 264,
sustained 219 U. S. 498, 521, 31 Sup. Ct.
279, 55 L. ed. 310.

(i) Where a terminal company is
part and parcel of the system engaged
as a whole in the transportation of in-
terstate commerce, the Commission has
jurisdiction to supervise and control it;
since to hold otherwise would, in effect,
permit carriers generally, through the
organization of separate corporations, to
exempt all their terminals and terminal
facilities from the regulating authority
of the Commission. Eichenberg v. S. P.
Co., 14 I. C. C. 250, 265, sustained, 219
U. S. 498, 521, 31 Sup. Ct. 279, 55 L. ed.
310.

1^2- Jurisdiction of Courts.

See Commerce Court, 3 (c), 6 (d),
(j), (k) : Courts, 9 (k).

II. DUTY TO PERFORM TERMINAL
SERVICE.

2. In General.

See Export Rates and Facilities, II!
(m).

(a) 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
performed by the defendant without cost
to shippers. Complainant found it nec-
essary to fill all the orders of its cus-
tomers on the day on which they were
received, and defendant was unable to
furnish barges and boats promptly
enough to accomplish this purpose, some-
times compelling complainant to wait
three or four days. Complainant took
the matter of lighterage into its own
hands and performed 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 de-
fendant 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 de-
fendant to pay for lighterage performed
by the shipper. HELD, under the facts
disclosed, the complainant having per-
formed such lighterage service for its
own convenience, and to meet the spe-
cial requirements of its business, was
not entitled to reparation. Barrett Mfg.
Co. v. Central R. R. of N. J., 17 I. C. c.
464, 466.



3. Duty to Allow Use.

See Differentials, 6 (d); Facilities
and Privileges, 1 (h), 2 (aa), (r),
16 (c), (d), (e); Special Contracts,
2 (aa), (m), (z), 5 (h); Water
Carriers, 3 (e).

(a) Section 3 requires every common
carrier subject to the provisions of the
Act to accord all reasonable, proper and
equal facilities for the interchange of
traffic between their respective lines,
and provides: "But this shall not be
construed as requiring any such com-
mon carrier to give the use of its tracks
or terminal facilities to another carrier
engaged in like business." But if car-
riers are allowing such use of their
tracks or terminal facilities the proviso
of section 3 can have no application.
Terminals are either open or they are
not, and if a carrier holds itself out as
ready to permit the use of its tracks at
a certain charge, the fact that such
charge may be prohibited does not mean
that the terminals are not open. On the
contrary, it would seem to be a potent
argument for the reduction of charges
for the use of tracks or terminal fa-
cilities already extended. That carriers
offer each to the other the use of their
respective tracks or terminals is shown
by the fact that freight is actually in-
terchanged after its arrival at the ter-
minal, and for this service charges are
provided in tariffs published and filed.
It follows that, having elected to per-
form this service, the charge therefor
must be reasonable. Merchants' &
Mfr'rs' Ass'n v. Penn. R. R. Co., 23 I.
C. C. 474, 476.

(b) The proviso in section 3 of the
Act that a carrier shall not be required
to give the use of its tracks or terminal
facilities to another carrier engaged in
like business can have no application
where carriers are already allowing such
use of their tracks or terminal facilities.
Merchants' & Mfrs.' Ass'n v. Penn. R.
R. Co., 23 I. C. C. 474, 476.

(c) A carrier (the Iron Mountain)
whose rails are for the most part con-
fined to the bank of the Mississippi
River does not furnish adequate terminal
facilities for the southern section of in-
dustrial St. Louis, containing many in-
dustries a considerable distance .from
the river, and therefore the facilities
furnished by the Manufacturers' Rail-
way, organized to serve such industries,
are both reasonable and necessary.



836



TERMINAL FACILITIES, 3 (d) (i)



Mfr'rs' Ry. Co. v. St. L. I. M. & S. Ry.
Co., 21 I. C. C. 304, 309.

(d) Carriers cannot spot cars for one
industry and refuse to perform the same
service for another similarly situated.
Buffalo Union Furnace Co. v. L. S. & M.
S. Ry. Co., 21 I. C. C. "620, 627.

(e) An undue disadvantage resulted
from the failure of defendant to accord
a terminal switching allowance to com-
plainant while granting it to competing
industries performing similar services.
Buffalo Union Furnace Co. v. L. S. & M.
S. Ry. Co., 21 I. C. C. 620, 630.

(f) While at common law no obliga-
tion rested upon carriers to do or pay
for the spotting of cars at any industry,
yet a different question is presented if
carriers voluntarily undertake to per-
form for some and refuse to perform
for others under substantially similar
circumstances and conditions. Buffalo
Union Furnace Co. v. L. S. & M. S. Ry.
Co., 21 I. C. C. 620, 627.

(g) At Cleveland, O., and Buffalo, N.
Y., various terminal railroads were al-
lowed by defendants $2.50 per car when
the freight rate was 50c per ton or more,
for spotting cars at certain blast fur-
naces. No allowance for this service
was made by defendants to the Buffalo
Union Terminal Railroad, a terminal
railway serving the Buffalo Union Fur-
nace Co. at Buffalo, N. Y. HELD, that
while at common law no obligation
rested upon defendant carriers to do or
pay for the spotting of cars at any of
the furnaces mentioned, yet a different
question is presented if the carriers vol-
untarily undertake to perform for some
and refuse to perform for others the
same service under substantially similar
circumstances and conditions; that the
Buffalo Union Furnace Co. should be
placed on an equality with other fur-
naces. Reparation awarded. Buffalo
Union Furnace Co. v. L. S. & M. S. Ry.
Co., 21 I. C. C. 620, 627, 630.

(h) Complainant is engaged in the
city of Baltimore in conducting an abat-
toir for slaughtering live stock. It owns
a sidetrack connecting its plant with
the P. B. & W. R. R., a part of the
Penn. R. R. This sidetrack has been in
existence 20 years and been used for the
delivery of all classes of freight except
live stock. In 1891 the Union Stock
Yards Co. was organized, which took
over the business of the Calverton and



Claremont Stock Yard in Baltimore.
Prior to that the complainant had estab-
lished its plant on a piece of land pur-
chased from the Claremont Co. and ad-
jacent thereto. The consolidated com-
pany had yards situated about two miles
from the yard of complainant. The de-
fendants entered into a contract with
the Union Stock Yards whereby they
agreed to make "the said stock yards
their live stock depot for Baltimore and
vicinity and shall deliver at said yard
all the live stock which may be trans-
ported over their line * * * des-
tined to the Baltimore market * * *."
Defendants claim they had a right to
agree to deliver at pne stock yards ex-
clusively in Baltimore. Complainant's
live stock was unloaded at the Union
Stock Yards and then driven through
the streets of Baltimore by complainant
two miles to their yard, at considerable
expense and annoyance. Shipments by
complainant and a tenant of it over the
sidetrack was from 50 to 60 carloads a
year. If live stock was delivered at its
yards complainants estimate it would
receive 15 carloads a week. HELD, the
refusal of defendants to deliver to the
sidetrack of complainant live stock con-
signed thereto is unreasonable and a
violation of the law. Ordered that such
delivery be hereafter made. Baltimore
Butchers' Live Stock Co. v. P. B. & W.
R. R. Co., 20 I. C. C. 124.

(i) Defendants made an exclusive
contract to deliver live stock to the
Union Stock Yards of Baltimore, al-
though complainant had its own side-
track, and had shipped to it weekly car-
loads of live stock, but defendants re-
fused to deliver to other than the Union
Stock Yards, on account of the exclu-
sive contract. HELD, railroads may not
make contracts which abrogate the Act
to Regulate Commerce; they may not
refuse, because of their own contract,
to furnish a delivery that is reasonable
upon tracks which they use, as a ter-
minal for complainant; they may not
discriminate as between commodities in
the delivery which they give where no
reason exists for such discrimination ex-
cepting the presence of a contract made
with a private corporation, as in this
case. The amended Act to Regulate Com-
merce provides that it is the "duty of all
common carriers to establish, observe
and enforce just and reasonable regu-
lations and practices affecting all mat-
ters relating to or connected with the



TERMINAL FACILITIES, 3 (j) 4 (a)



837



receiving, handling, transporting, storing
and delivery of property." Baltimore
Butchers' Live Stock Co. v. P. B. & W.
R. R. Co., 20 I. C. C. 124, 128.

(j) Defendant granted the exclusive
right to a company to conduct its busi-
ness as an auctioneer of fruit and vege-
tables on its terminal premises at St.
Louis. Complainant, a rival company,
asked for the same facilities. HELD,
that the granting of the exclusive right
to maintain a fruit auction company
was somewhat analogous to the station
restaurant, news stand, barber shop and
other conveniences which travelers ar-
riving at a station may make use of if
they so desire. They are enterprises
that outsiders are frequently permitted
to engage in at railroad terminals, not
as a part of the service that the carrier
renders to the public, but as something
that adds to the general convenience of
the public. The telegraph, telephone,
transfer and cab offices ordinarily found
in passenger stations rest upon the same
basis. They add to the convenience
of the passenger before the transporta-
tion by the carrier has commenced or
after it has been completed without add-
ing to the service undertaken by the
carrier for the traveler under its pub-
lished rates. It is a matter that is
wholly outside and apart from the serv-
ice of transportation performed by de-
fendant, and is a reasonable use for the
defendant to make of its property. Com-
plaint dismissed. Southwestern Produce
Distributers v. Wabash R. R. Co., 20 I.
C. C. 458, 460, 462.

(k) Defendants carry a rule in their
tariffs that shipments of lumber to New
York may be consigned "New York light-
erage free;" and that upon arrival of
cars the consignee shall specify a par-
ticular lighterage destination, and upon
the arrival of the lighter at such desti-
nation provide a dock berth for such
lighter. Complainant, who had lumber
delivered at Wallabout Basin, was as-
sessed demurrage charges whenever the
pier he designated for delivery was occu-
pied, thus compelling the lighter to tie
up to another boat, and wait until a
berth was made. The public berths with-
in the free lighterage limits of New
York are 329 in number, and about 3,600
toats, excluding steamers and schooners,
are engaged in making deliveries with-
in the harbor. HELD, if the obligation
were imposed upon the carrier to find



a berth before the free time began to
run against the consignee it would be
possible for consignees who desired stor-
age of their shipment to regularly desig-
nate the more congested piers, and
thereby obtain the use of the carrier's
equipment. The present practice of
consigning lumber "New York lighterage
free" is of value to the consignee in
that it enables him to find a purchaser
while the car is en route or before ulti-
mate delivery. On account of the natu-
ral congestion of the New York harbor
and the extent of the free delivery lim-
its, the regulations of the defendant
must be held reasonable, and defendants
not required, when a designated pier is
occupied, to deliver to an adjacent
wharf. Mosson Co. v. Penn. R. R. Co.,
19 I. C. C. 30.

(1) In this country the railroads have
recognized by universal custom that it
is but fair, where their team tracks are
not used, to give delivery without ex-
tra charge at an industry track as
equivalent service, although where the
shipper provides tracks, land and facil-
ities the mere switching furnished by
the carrier is in many cases by no
means equivalent in cost to the expense
attaching to delivery upon its own
tracks. Associated Jobbers of Los An-
geles v. A. T. & S. F. Ry. Co., 18 I. C.
C. 310, 316.

(m) The carrier must hold itself
impartially as between shippers and give
to each equal terminal facilities and
service. Enterprise Fuel Co. v. Penn.
R. R. Co., 16 I. C. C. 219, 224.

4. Publication of Terminal Charges.

See Demurrage, 11 (b), (c); Tariffs,
M, 4 (d), (i).

(a) Although a terminal charge col-
lected by a carrier for services rendered
by another line when just and reason-
able cannot be condemned on the
ground that when coupled with the car-
riers' rates for transportation the total
charge is unreasonable, another carrier
in order to avail itself of the benefit
of this rule must separately state its
terminal or other special charge com-
plained of, for if many matters are
lumped in a single charge it is impos-
sible for either the shipper or the Com-
mission to determine how much of the
lump charge is for the terminal or spe-
cial services. I. C. C. v. Stickney, 215
U. S. 98, 105, 30 Sup. Ct. 66, 54 L. ed.
112.



838



TERMINAL FACILITIES, 4 (b) 7 (c)



(b) Carriers are not required to
state separately in their tariffs their
terminal charges in connection with
shipside delivery. Mobile Chamber of
Commerce v. M. & O. R. R. Co., 23 I.
C. C. 417, 424.

(c) Services of loading and unload-
ing and charges therefor are analogous to
other terminal charges and must be pub-
lished. Schultz-Hansen Co. v. S. P. Co.,
18 I. C. C. 234, 237.

5. Reasonableness of Charges.

See Reasonableness of Rates, 28 (p),
60 (a).

(a) For services that a carrier may
render or procure to be rendered off its
own line, or outside the mere matter
of transportation over its own line, it
may charge and receive compensation.
If a terminal charge be in and of it-
self just and reasonable it cannot be
condemned or the carrier required to
change it on the ground that it, taken
with prior charges of transportation
over the lines of the carrier or of con-
necting carriers, makes the total charge
to the shipper unreasonable. That which
must be corrected and condemned is
not the just and reasonable terminal
charge, but those prior charges which
must of themselves be unreasonable in
order to make the aggregate of the
charge from the point of shipment to
that of delivery unreasonable and un-
just. I. C. C. v. Stickney, 215 U. S. 98,
105, 109, 30 Sup. Ct. 66, 54 L. ed. 112.

(b) A carrier isunder no obligations
to charge for terminal services. Busi-
ness interests may justify it in waiving
any such charge, and it will be con-
sidered therefore to have waived it un-
less it makes plain to both the shipper
and the Commission that it is insisting
upon it. I. C. C. v. Stickney, 215 U. S.
98, 105, 30 Sup. Ct. 66, 54 L. ed. 112.

6. What Are Public Terminals.

See Export Rates and Facilities, III
(b); Switch Tracks and Switching.
4 (g), 7 (d).

(a) Railroads may secure and main-
tain freight depots by contract with in-
dependent concerns, and such depots
thereby become legally and to all in-
tents and purposes the freight depots
of the railroads. Federal Sugar Refin-
ing Co. v. B. & O. R. R. Co., 17 I. C. C.
40, 47.



III. STATUS OF TERMINAL ROADS.
7. In General.

(a) The fact that the stock of the
Union Stock Yards Co., an independent
corporation and terminal company at
Chicago, is owned by the several rail-
road companies entering into Chicago
does not make its line or property part
of the lines or property of the separate
railroad companies with respect to the
question of the reasonableness of the
terminal charges imposed by it. I. C. C.
v. Stickney, 215 U. S. 98, 108, 30 Sup.
Ct. 66, 54 L. ed. 112.

(b) The Northern Pacific terminal
lines are for all practical purposes a
part of the railroad of each of the three
companies owning it. Portland Lumber
Co. v. O.-W. R. R. & N. Co., 21 I. C. C.
292, 294.

(c) The Manufacturers Railway Co.
of St. Louis, Mo., and a number of
shippers located on its lines asked that
through routes be established to and
from points on its lines of railway in
St. Louis, Mo., from and to points on
the lines of each of the defendant rail-
way companies and points beyond; also
for the fixing of reasonable divisions or
absorptions out of the St. Louis rates
to be paid to the Manufacturers Rail-
way Co. for terminal services rendered
by it and for reparation. This company
was incorporated in 1887 to furnish ter-
minal facilities for the southern section
of industrial St. Louis, which, owing to
the physical conditions existing there,
seem both reasonable and necessary.
The Terminal Railroad Association domi-
nates entirely the terminal facilities of
St. Louis, and the stock of this com-
pany is owned equally by the fourteen
carriers running into that city. The
only terminal facilities in the southern
section are furnished by the Manufac-
turers Railway and by the lines of the
St. L. I. M. & S. R. R. The latter's
tracks, however, follow the bank of the
Mississippi River and reach such indus-
tries as are adjacent thereto. For a con-
siderable distance along the river there
is a steep grade to be overcome in
reaching industries back from the river,
and it was to afford service to these
that the Manufacturers Railway was
constructed. The Manufacturers Rail-
way leased its tracks to the St. L. I. M.
& S. R. R. until 1908, since when it was
operated independently. The majority of
its stock is owned by the Anheuser-



TERMINAL FACILITIES, 7 (d) 8 (a)



839



Busch Brewing Ass'n. For the year end-
ing April 30, 1910, it handled 42,970
cars, of which 37,546 cars were handled
for the Brewing Association and 5,424
cars were handled for some 87 other in-
dustries or patrons, of which 35 shipped
or received 10 cars or more. The traffic
of the Brewing Association constitutes
one-thirtieth of the total traffic of St.
Louis. The complainant operates about
20 miles of track, of which 2^4 miles
are classed as main track, and the re-
mainder as sidetrack, switches and yard
track. Of this total, six miles are leased
from the Brewing Association and are
used in part both for the services of
the brewery and the public. The only
physical connection other than that with
the St. L. I. M. & S. R. R. is with the
St. Louis Transfer Co., one of the con-
stituent properties of the Terminal Rail-
road Association. Two-thirds of the
track of the Manufacturers Railway
has been constructed solely for the
purpose of serving the public, while the
remaining one-third is used in serving
both the brewery and the public. Prior
to March 1, 1910, there existed through
routes and joint rates over the lines of
defendant carriers and complainant car-
rier to and from points on the line of
the complainant company. Since that
date the defendants declined to absorb
the charges for the services of the
Manufacturers Railway. While the Manu-
facturers Railway was operated by the
St. L. I. M. & S. R. R. during 21 years,
and also when operated under the tar-
iffs which permitted an allowance to the
Manufacturers Railway itself, in 1909,
until March 1, 1910, delivery has been
made to the public served by it at the
St. Louis rates. HELD, in view of all
the facts, circumstances and conditions
bearing upon the question, there is no
doubt that the Manufacturers Railway
Co. is in fact a common carrier at
common law, notwithstanding any modi-
fication thereof, and therefore within
the provisions of the first section of
the Act to Regulate Commerce, and that
the payment to it of a reasonable and
just portion of the St. Louis rates for
the terminal services rendered by it is
not unlawful, and that it is not a mere
plant facility. FURTHER HELD, that
the action of defendants in canceling
the divisions and absorptions with the
Manufacturers Railway, which have
been for many years included in the St.
Louis rates, has subjected complainant



shippers and a considerable portion of
the public of South St. Louis to the pay-
ment of unjust and unreasonable trans-
portation charges, and to undue discrimi-
nation and disadvantage. Question of
what are reasonable divisions and the
reparation to be awarded reserved for
further investigation. (Lane, Comm'r,
concurring opinion; Harlan, Comm'r, dis-
senting.) Manufacturing Ry. Co. v. St.
L., I. M. & S. Ry. Co., 21 I. C. C. 304.

(d) The contention that inasmuch as
a terminal company operating in Gal-
veston, Tex., is not owned by the rail-
road company with which the track on
its dock connect, it cannot be held to
be a part of that or any other railroad
is rejected. It makes no difference
whether or not the connecting railroad
company owns the terminal company
if the ownership of both is vested in
the same corporation, especially where
it appears that the interests and offi-
cers of the railroad and steamship lines
of the system transporting shipments to
and from Galveston are identical. Eich-
enberg v. S. P. Co., 14 I. C. C. 250, 164;
sustained 219 U. S. 498, 31 Sup. Ct. 279,
55 L. ed. 310.

(e) Where a terminal company holds
land granted to be used for wharfage
purposes by the general public, and is
given charter power to lease and con-
vey its warehouse, docks and wharves,
such power cannot be exerted to divert
the land granted from a public to a
private use. Eichenberg v. S. P. Co.,
14 I. C. C. 250, 267; sustained, 219 U. S.
498, 31 Sup. Ct. 279, 55 L ed. 310.

(f) Where a terminal company exe-
cutes to a shipper an instrument pur-
porting to be a lease of a portion of
a wharf but the shipper is to receive
the revenue arising from the use of
the tracks on the dock and is not to
pay for switching cars upon such tracks,
it is doubtful whether the instrument is
in any proper sense a lease of the
premises. Eichenberg v. S. P. Co., 14 I.
C. C. 250, 267; sustained, 219 U. S. 498, 31
Sup. Ct. 279, 55 L. ed. 310.

8. Definition of "Terminal Charges."

(a) "Terminal charges," as used in
section 6, refers to the American metn-
od of making rates, and comprehends
services rendered after delivery. As-
sociated Jobbers of Los Angeles v. A. T.
& S. F. Ry. Co., 18 I. C. C. 310, 315.



840



THROUGH ROUTES AND JOINT RATES, 1 (a) (f)



THROUGH ROUTES AND
JOINT RATES.