Kaye & Carter Lumber Co. v. M. St. P.
& S. Ste. M. Ry. Co., Unrep. Op. 159.
10. Tank Cars.
(a) Whatever the facts may have
been which have led up to the present
private ownership of tank cars, the fact
remains that it is the duty of the car-
riers to furnish such cars, and sound
public policy demands that this duty
should be performed in order that all
shippers may be served equally well. In
the Matter of Demurrage Charges on
Privately Owned Tank Cars, 13 I. C. C.
378, 381.
(b) Carriers do not undertake to fur-
nish tank cars for shippers; when such
equipment is required, it is obtained
upon an order or at the special request
of the shipper. American Milling Co.
v. C. M. & St. P. Ry. Co., Unrep. Op.
384.
11. At Transit Point.
(a) The refusal to furnish cars for
the outbound movement of grain milled
in transit amounts to a failure to fur-
nish transportation in violation of sec-
tion 1. Brook-Rauch Mill & Elevator
Co. v. St. L. I. M. & S. Ry. Co., 21 I. C. C.
651, 654.
(b) Complainant shipped a carload of
corn from Omaha, Neb., to Little Rock,
Ark., over the St. L. I. M. & S. R. R., to
be there milled and reshipped to Fordyce,
Ark., over the Cotton Belt R. R. The
shipment moved under a tariff naming a
through rate from Omaha to Fordyce
via Argenta, Ark, to which the inbound
and outbound carriers were parties. In
connection with a later tariff granting
transit privileges at Little Rock, a point
not on the Cotton Belt's line, its junc-
tion with the St. L. I. M. & S. R. R. being
at Argenta. To this later tariff the Cot-
ton Belt was not a party. Both carriers re-
fused to furnish transportation equip-
ment for the outbound movement from
Little Rock, each claiming it was the
duty of the other to do so. HELD, that
the Cotton Belt's obligation under the
tariff to which it was a party does not
accrue until delivery to its own rails,
and the duty to furnish equipment for
outbound movements from complainant's
mill rests upon the inbound carrier, the
St. L. I. M. & S. R. R. Brook-Rauch Mill
& Elevator Co. v. St. L., I. M. & S. Ry.
Co., 21 I. C C. 651, 656.
III. ASSIGNMENT AND DISTRIBU-
TION.
A. Counting of Cars.
12. In General.
(a) Where the shipper has shown in
a mandamus suit to compel equitable car
distribution, that the carrier has not
supplied the facilities demanded, the bur-
CARS AND CAR SUPPLY, 12 (aa) (f)
115
den is upon the carrier, in order to ex-
onerate itself from the charge of undue
preference, to show that it is prorating
its cars fairly and equally among all thi
operators who are similarly situated and
engaged in transporting freight over its
lines. (McDowell, J., dissenting.) U. S.
v. B. & O. R. R. Co., 165 Fed. 113, 125.
(aa) The double ordering of cars and
multiple ordering of coal militate
against the most equitable distribution
of coal cars. Colorado Coal Traffic
Ass'n v. D. & R. G. R. R. Co., 23 I.
C. C. 458, 464.
(b) The L. & N. R. R. delivers empty
cars on a branch line to St. Charles
mines in the Black Mountain district of
Virginia and returns loaded cars to its
own line without charge for service
either way, and in addition pays the
Va. & S. W. R. R. for trackage rights by
means of which it reaches St. Charles.
This service it formerly performed for
mines situated on the line of the Inter-
state R. R. Co., which serves competing
mines in the same general district, where
the conditions of transportation are sub-
stantially similar. HELD, its failure to
continue such service was undue dis-
crimination. Stonega Coke & Coal Co.
v. L. & N. R. R. Co., 23 I. C. C. 17, 26.
(bb) No discrimination or preference
in the matter of furnishing cars can be
permitted in. favor of Illinois coal buy-
ers as against Missouri buyers although
one may be local to an Illinois carrier
and the other may be on the line of a
connecting carrier. Missouri & Illinois
Coal Co. v. I. C. R. R. Co., 22 I. C. C.
39, 48.
(c) A shipper is entitled not only to
receive a fair proportion and use of a
carrier's teqxiipment, but may protest
against a competitor being given a sup-
ply of cars in excess of his just propor-
tion. Bulah Coal Co. v. P. R. R. Co.,
20 I. C. C. 52, 54.
(d) Complainant asked reparation for
damages sustained through discrimina-
tion in distributing coal car equipment
to it. HELD, that under the law a ship-
per has the right not only to receive its
fair and full proportion and use of a
carrier's equipment and facilities, but
may protest against the giving to a' com-
petitor of a supply of cars in excess of
its fair and just proportion, because the
mine that has a larger and more con-
stant supply of cars may not only be
operated at less cost, but can attract
miners from other mines because of a
more constant opportunity to earn wages.
Hillsdale Coal & Coke Co. v. P. R. R. Co.,
19 I. C. C. 356; Jacoby & Co. v. P. R. R.
Co.,, 19 il. C. C. 392 ; land other cases therein
referred to, reaffirmed. Bulah Coal Co.
v. Pa. R. R. Co., 20 I. C. C. 52, 54.
(e) The defendant carrier contended
that so long as the complainant received
all the cars it was entitled to it had no
right to complain that some other coal
shipper, as the result of a high mine
rating or otherwise, secured an excess-
ive proportion of the available cars, if
this preference was not at the expense
of the complainant. HELD, that the
Commission must reject that view. The
Act as amended not only gives a shipper
a right to an equal or a justly ratable
use of the facilities of an interstate car-
rier, but gives him the assurance also
that no one else shall fare ratably bet-
ter than he does at the hands of the
carrier. It may be true that a court
would not allow the complainant dam-
ages for losses due to the defendant's
failure to furnish it cars that it was not
entitled to receive, but the Commission
may surely require an interstate carrier
to cease and desist from giving a ship-
per's competitor more cars than he is
entitled to receive. Hillsdale Coal &
Coke Co. v. P. R. R. Co., 19 I C. C.
356, 369.
(f) The rules for coal car distribu-
tion by the defendant having been found
unreasonable, the complainant requested
the Commission to make such a ruling
as will enable it to obtain redress for
the past discrimination, because under
the condemned ruling the mines in whose
favor the discrimination was had en-
larged their commercial capacity. HELD,
that the Commission could not grant to
complainant a temporary preference to
even up for the past. Exact justice is
ordinarily not obtainable. It is difficult
no less for the Commission than for a
court to deal with such a situation with
mathematical accuracy. The most that
either may hope to accomplish in such
a state of facts is to do substantial jus-
tice, and this is done as far as possible
when the defendant is required to adjust
its rules on a proper basis for the fu-
ture, and the complainants are given an
opportunity to have their injuries re-
dressed in the form of damages. Hills-
dale Coal & Coke Co. v. P. R. R. Co.,
19 I. C, C. 356, 366.
116
CARS AND CAR SUPPLY, 12 (g) 13 (h)
(g) While the mine capacity of a
given shipper of coal may be greater
than his allotment of cars, yet where this
is also the case as to other shippers sim-
ilarly situated in the same coal field it
is the duty of the carrier when the car
supply is inadequate to fairly distribute
the available number among all oper-
ators. Powhatan Coal & Coke Co. v.
N. & W. Ry. Co., 13 I. C. C. G9, 81.
(h) It is the duty of railroad com-
panies to provide suitable vehicles of
transportation and to offer their use im-
partially to all shippers, and unjust dis-
crimination through car distribution is
prohibited by the Act. Powhatan Coal
& Coke Co. v. N. & W. Ry. Co., 13 I. C. C
69, 81.
13. Private Cars.
See Supra, 4; Infra, 31; Demur-
rage, 10; Tariffs, 7 (jj); Trans-
portation, 2 (h).
(a) In times of coal car shortage it
is the duty of the carrier making car dis-
tribution, to charge against the percent-
age of a particular shipper the individual
or privately owned cars of said shipper,
and it is an unjust discrimination under
the Act as amended June 29, 1906, for a
carrier to assign to a shipper his indi-
vidual cars, and in addition his full pro
rata of system cars. (McDowell, J., dis-
senting.) U. S. v. B. & O. R. Co., 165
Fed. 113, 126.
(b) Under the Act a carrier engaged
in interstate commerce, in determining
the distributive share of cars due to a
particular shipper, must count against
the shipper the private and foreign fuel
cars supplied to him, although such cars
are used only in intrastate commerce.
Majestic -Coal & Coke Co. v. I. C R. R.
Co., 162 Fed. 810, 811.
(c) It is discrimination to fail to
count private ca-rs and assigned cars
against distributive share of mine receiv-
ing them. Jacoby & Co. v. P. R. R. Co.
19 I. C. C. 392.
(d) Although the coal mine owning
private cars to which company or foreign
railway fuel cars are consigned is en-
titled to receive them, even though in
excess of its ratable proportion of all
available coal car equipment, nevertheless
the defendant will be required in the
future to count all such cars against the
distributive share of the mine so receiv-
ing them. Hillsdale Coal & Coke Co. v.
P. R. R. Co., 19 I. C. C. 356, 365.
(e) The practice of a railroad in not
charging private individual cars and
foreign railway fuel cars against the per-
centage of the coal operators receiving
them is unlawful, and such operators are
not entitled in the general distribution of
available cars to receive their respective
proportions of the system cars in addition
to private and foreign railway fuel cars.
Rail and River Coal Co. v. B. & O. R. R.
Co., 14 I. C. C. 86, 91.
(f) While a carrier during percentage
periods may not assign private cars to
operators other than their owners, and
may not assign foreign railway fuel cars
to any mines except those to which they
.have been manifested by the foreign
line, it must nevertheless count all such
cars against the distributive siiare of the
respective mines to which the private
cars belong, or the foreign railway fuel
cars have been consigned, and in case the
private cars or foreign railway fuel cars
so delivered to a mine do not fill out its
distributive share of available cars,
enough system cars are to be added to
make up its share according to its rating.
Rail & River Coal Co. v. B. & O. R. R.
Co., 14 I. C. C. 86, 92.
(g) The mere ownership of a private
car, or the possession of a foreign rail-
way fuel car, gives to the owner or pos-
sessor no superior right to use the fa-
cilities of the carrier in transporting it,
or to have it attached to a -locomotive in
preference to a system car loaded by an-
other shipper, or to have it occupy a car-
rier's siding, or other tracks as against
a system car. Rail and River Coal Co.
v. B. & O. R. R. Co., 14 I. C. C. 86, 92.
(h) Complainants, dealers in hay at
various points in the "Thumb" district
of Michigan between Saginaw Bay and
Lake St. Clair, attacked the practice of
the P. M. R. R. in failing to furnish a
sufficient supply of empty cars for trans-
porting hay from those points. Com-
petitors of complainant located at those
points owned private cars, which we-re
old and worn out, unfitted for interstate
movements, and which, they used to ship
hay over the short distances to Port
Huron, Toledo and Saginaw, at which
points the hay was transferred to cars
of defendant and connecting carriers, to
be carried to destination. These private
cars were thereupon immediately re-
turned for the use of their owners. De-
fendants supplied an utterly inadequate
number of cars to complainants at the
original shipping points. As a result
CARS AND CAR SUPPLY, 14 (a) 15 (c)
117
complainants' competitors owning private
cars were able to move their hay
promptly, and by being thus enabled to
pay the farmers promptly were able to
buy hay at lower prices than complain-
ants. Defendants made a practice of
supplying cars at the junction points,
Port Huron, Saginaw and Toledo, instead
of sending same, as it might have done,
to the shipping points where complain-
ants were located. HELD, such practice
was unduly discriminatory and defend-
ant should make an equitable arrange-
ment for the supplying of empty cars.
Ruttle v. P. M. R. R. Co., 13 I. C. C. 179,
185.
14. Foreign Cars.
(a) Where defendant carrier fur-
nished a shipper his full quota of avail-
able cars, the latter cannot complain of
unjust discrimination by reason of the
fact that the cars furnished were se-
cured from other carriers, while those
supplied to competitors belonged to the
defendant itself. Peale, Peacock & Kerr
v. C. R. R. Co. of N. J., 18 I. C. C. 25, 34.
(b) All cars tendered by the Union
Pacific R. R. for the movement of grain
must be counted as cars of the Union
Pacific Company. Nebraska-Iowa Grain
Co. v. U. P. R. R. Co., 15 I. C. C. 90, 96.
15. Railway Fuel Cars.
(a) A carrier in times of coal car
shortage in making car distribution must
charge against the percentage of a par-
ticular shipper its fuel cars, and the for-
eign fuel cars assigned to such shipper,
and a failure so to do constitutes undue
discrimination under the Act as amended
June 29, 1906. (McDowell, J., dissent-
ing.) U. S. v. B. & O. R R. Co., 165
Fed. 113, 126.
(aa) Private coal cars, belonging to
shippers and used by carriers in the
transportation of commodities, and the
fuel cars of foreign railoads must be
treated as a part of the total equipment
of the carriers in determining the per-
centage of cars due each shipper in the
matter of car distribution. Fuel cars
of the carriers, used only by themselves
in transporting coal for their own use,
are not, however, to be treated as a
part of their available car supply for
purposes of distribution to shippers.
Such fuel cars are, however, to be taken
into account in determining the produc-
ing capacity of a particular coal mine
and the coal sold to a carrier by a mine
and shipped to it in the carriers' fuel
cars is not to be counted in arriving at
the mine's producing capacity, for the
purpose of determining the percentage
of cars to which it is entitled. The
order of the Interstate Commerce Com-
mission, in 13 I. C. C. 451, is modified
in so far as it counted the fuel cars of
carriers in arriving at the total avail-
able car supply. C. & A. R. R. Co. v. I.
C. C., 173 Fed. 930, 933, reversed, I. C. C.
V. 111. Cent. R. R. Co., 215 U. S. 452, 30
Sup. Ct. 155, 54 L. ed. 280.
(b) An arbitrary allowance of system
cars to an operator for another reason
than encouraging development is unlaw-
ful discrimination unless justified by
special conditions. Rail & River Coal
Co. v. B. & O. R. R. Co., 14 I. C. C. 86, 93.
(bbj On Jan. 1, 1906, the defendant
divided all coal cars into two classes,
which it designated as "assigned" and
"unassigned" cars. In the former class
were its own fuel cars, foreign -railway
fuel cars and individual or private cars
loaded by their owners or assigned by
their owners to particular mines. The
rule then made effective and still in force
provides that the capacity in tons of any
"assigned" cars shall be deducted from
the rated capacity in tons of the partic-
ular mine receiving such cars, and that
the remainder is to be regarded as a
rated capacity of the mine in the distri-
bution of all "unassigned" or system cars.
HELD, that a mine owning individual
cars would be able to ship out more coal
than its competitor, while under the rule
approved by the Commission (which
treats all cars, whether individual cars
or owned by the carrier or assigned by
other carriers for fuel, as available car
equipment as a whole, distributable pro
rata to shippers desiring their use), no
shipper is discriminated against; and,
therefore, that the rule of the defendant
is unlawful and discriminatory. Hills-
dale Coal & Coke Co. v. P. R. R. Co., 19
I. C. C. 356, 364.
(c) Complainant, operator of coal
mines on the lines of* the defendants in
Illinois, attacked defendants' system of
car distribution. Under this system each
mine was entitled to such percentage of
cars as its tonnage rating bore to the total
number of coal cars available for distri-
bution for commercial purposes. Defend-
ants' fuel cars, foreign railway fuel cars
and private cars were not charged
118
CARS AND CAR SUPPLY, 16 (a) 18 (a)
against the distributive shares of the
mines to which they were assigned.
After the assignment of such cars each
mine receiving them was given the same
percentage of the remaining cars avail-
able for distribution as if it Lad received
no cars at all. This practice permitted
mines having fuel contracts with de-
fendants to ship a greater poTtion of
their daily output than mines having the
same tonnage rating, or not having fuel
contracts with defendants or the use of
private or foreign railway fuel cars. One
of the defendants had 360 hopper-bot-
tomed gondola cars, which were used
solely for its own fuel and which, be-
cause no shipper on its line had trestles
from which to unload them, were im-
practicable for commercial use. When
a mine having a fuel contract with de-
fendant was furnished cars under it with-
out having its distributive share of cars
for commercial shipments reduced there-
by, such mine was given an advantage
over its competitor having no fuel con-
tract, because it was enabled to work
its mine more regularly, to keep its prop-
erty in a more efficient condition, to re-
tain its employes and thus to operate
more economically and to sell its output
more advantageously in the commercial
market. HELD, such system of dis-
tributing cars was unjustly discrimi-
natory. The defendant had a right to con-
fine its hopper-bottomed car j to the haul-
ing of its fuel supply, but such cars,
with all others, must be used by the de-
fendants upon their own lines for trans-
portation of their own fuel supply and
should be counted against the distribu-
tive share of the mines to which given,
except in cases where defendant owned
or purchased the entire output of a mine
for its fuel supply. Fuel and foreign
railway cars must be counted against a
mine in determining its distributive
share. Traer v. C. & A. R. R. Co., 13
I. C. C. 451, 456-459. Sustained in I. C. C.
v. 111. Cent. R. R. Co., 215 U. S. 452, 477,
30 Sup. Ct. 155, 54 L. ed. 280, reversing
173 Fed. 930, enjoining the Commission's
order.
16. Pooling by Shipper.
(a) Where a coal company owns and
operates several openings, and is en-
titled in the daily distribution to a cer-
tain number of cars for each mine, it
will not be prohibited from grouping or
pooling all these cars, or any portion of
them, at one mine, instead of using them
at each mine in accordance with their
respective percentages, in the absence of
definite evidence to show that such prac-
tice results in fact in undue and unlawful
discrimination. Rail and River Coal Co.
v. B. & O. R. R. Co., 14 I. C. C. 86, 97.
17.
Tank Cars.
See Supra, 10.
(a) Wliere a connecting carrier re-
ceives carloads of oil consisting of tank
cars and carloads made up of barrel
packages from the initial carrier, and
merely joins with the initial carrier in a
joint rate in itself reasonable, it is not
liable for the alleged discriminatory acts
of the initial carrier in charging for the
weight of the barrel package used in
shipments made by one class of shippers
while at the same time making no charge
for the weight of the tank cars against
a competing class of shippers using such
method of shipment. Penn. Refining Co.
v. W. N. Y. & P. R. R. Co., 208 U. S.
208, 222, 28 Sup Ct. 268, 52 L. ed. 456.
(b) Circumstances existed which pre-
vented the economical use by plaintiffs
of tank cars for the hauling of oil and
they, therefore, made no demand of de-
fendant carriers for the use of such cars.
Their competitors used the tank cars.
The defendants did not refuse to furnish
them to plaintiffs. Plaintiffs shipped oil
in barrels and defendants made a charge,
which was not unreasonable, for the
weight of the barrel package. They
made no such charge for the weight of
the tank cars. HELD, since plaintiffs
made no demand for the tank cars, there
was no unjust discrimination against
them in favor of their competitors.
(Moody and Harlan, JJ., dissenting.)
Penn Refining Co. v. W. N. Y. & P. R. R.
Co., 208 U. S. 208, 221, 28 Sup. Ct. 268,
52 L. ed. 456.
18. Detention of Cars.
(a) Under a complaint charging
shortage of coal cars, it appeared that
during the period complained of there
were at the mine of the complainant
from day to day from one to twenty-five
unbilled cars; that complainant handled
lump coal and small coal; that it found
a ready market for the lump coal, but not
for the small coal, and was obliged to
keep the latter on hand for a longer
time; and that unbilled cars were used
for the storage of small coal. HELD,
complainant failed to make out a case of
shortage of cars, since it had no right
to require defendant to furnish cars for
CARS AND CAR SUPPLY, 19 (a) 21 (a)
119
he storage of its small coal, and but for
hat purpose defendant was supplying
n abundance of cars. Traer v. C., B.
b Q. R. R. Co., 14 I. C. C. 165, 168.
19. When Counted for Loading.
(a) A rule that a car placed too late
or loading will not be counted as avail-
ble for loading until the following day,
s not unlawful. Hillsdale Coal & Coke
:o. v. P. R. R. Co., 19 I. C. C. 356, 367.
20. Car Famine.
(a) Shortage of cars does not mean
iminution in number, but volume of
raffle exceeds capacity of equipment,
tail & River Coal Co. v. B. & O. R. R.
!o., 14 I. C. C. 86, 92.
(b) It may well happen that if a car-
ier can supply during the major part
f the year all the cars required by the
oal mines located on its line, the most
atisfactory basis for distribution during
hort and infrequent periods of car short-
,ge would be furnished by the actual re-
ults of operation during the time of full
upply. Traer v. C. B. & Q. R. R. Co.,
4 I. C. C. 165, 169.
(c) Complainant, shipper of hay from
Lfton, Okla., to St. Louis and other Mis-
ouri points and to Arkansas points, al-
eged that defendant unduly discrimi-
lated against them in failing to furnish
, supply of cars for hay during October,
906, to April, 1907, while at the same
ime supplying cars for shippers of corn
,t Afton and for hay to shippers at
ther nearby points. The evidence in-
dicated that defendant did supply a
arger proportion to certain other ship-
ers than to complainants, but did not
how the destination of the shipments so
uade. At St. Louis during the period in
luestion there was greater congestion of
iay cars on account of the unwillingness
f connecting carriers to exchange cars
viih defendant there, so as to permit
he carrying of the hay to destinations
lastward. This difficulty did, not arise
pith respect to grain, since the same
ould be immediately unloaded into ele-
ators at St. Louis for storage and sale,
throughout the country there was a gen-
iral car shortage during the period in
[uestion. Defendant's traffic in the vi-
inity of Afton was suddenly increased
luring the period in question by the de-
-elopment of oil fields, which fact re-
ulted in overcrowding the railroad yards
,t Afton. HELD, the evidence submitted
lid not show undue discrimination in dis-
tribution of the car supply. Cox Bros,
v. St. L. & S. F. R. R. Co., 14 I. C. C.
464, 466.
(d) Complainant charged unjust dis-
crimination in defendant's failure to fur-
nish sufficient cars for carrying ice from
Tobico, Mich., to Sandusky, O., between
Sept. 15, 1906, and Dec. 31, 1906. For
the portion of the year 1906 preceding
September 15, complainant was abun-
dantly supplied with cars. After this date
there was a general car famine through-
out the country. Complainant was ap-
parently supplied as liberally as its com-
petitors, located at Tawas, Mich., nearby,
and at the end of the famine had about
the same amount of unshipped ice on
hand as competitors. Prior to Septem-
ber 15, defendant had made sufficient ef-
forts to keep its road supplied with cars
and used all reasonable effort after that
date to secure its cars from connections,
but was unable to do so. During the fam-
ine period it was not able to supply cars