Denver in paying these long distance
charges from eastern points of origin
was subjected to excessive rates. De-
fendants made their rates on small pack-
ages up to 7 Ibs. in competition with the
United States mail. HELD, under these
competitive conditions the rates upon
small packages could not be taken as
the test of a reasonable rate upon larger
packages to which competition did not
apply, and the system attacked was not
shown to be unreasonable. Kindel v.
Adams Express Co., 13 I. C. C. 475, 478.
16. Mixed Shipments.
See Classification, 7.
(a) Some time ago the defendants ap-
plied the express bread rate to mixed
shipments of bread and cake from Bos-
ton to various interstate points. For the
purpose of availing himself of the lower
rate thus made possible the complainant
became to a limited extent a b.cker of
bread. It oftened happened, however,
that he would put into a hamper filled
with cake only a loaf or two of bread for
the purpose of obtaining the better rate.
With a view to preventing this the de-
fendants provided that the bread rate
should not apply unless at least 50 per
cent of the shipment consisted of bread.
This rule debarred the complainant from
making mixed shipments, while it per-
mitted certain of his competitors who
baked both bread and cake to obtain the
bread rate upon shipments of bread and
cake and the complainant alleged that
this rule was unreasonable. HELD, the
almost universal rule is that where a
package contains articles taking differ-
ent rates of transportation the entire
package goes at the rate applicable *o
the highest rated article in the package.
The rule of the defendants discriminates
against the complainant and is unjust
and unreasonable and should be discon-
tinued. Oak Grove Farm Creamery v.
Adams Express Co., 19 I. C. C. 454, 455.
See Procedure Before Commission.
17. In General.
(a) The Commission moves with
great caution in condemning a rate or
practice and does so only when the fact!
before it amply warrant such action. San-
ford v. Western Express Co. 16 I C.
C. 32, 36.
(b) In determining the reasonable-
ness of express rates, inquiry must be
had into the capital required, hazard in-
volved, and especially the profits made
under the rates attacked. Sanford v.
Western Express Co., 16 I. C. C. 32, 35.
(c) In administering the law the Com-
mission must be observant of the weight
to be given the evidence adduced before
it. Sanford v. Western Express Co., 16
I. C. C. 32, 36.
(d) Taking into account the estimated
statistics submitted by defendant express
companies as to capital, gross earnings,
expenses, net income, the smallness of
loss and damage claims, the evidence
that the express companies are not do-
ing as well as formerly, the higher cost
of labor and the increase in salaries of
employes, the deliveries through more
EXPRESS COMPANIES, 18 (a) 24 (c)
extensive territory, and the accumula-
tions of surplus from past profits in-
vested by the companies, the Commission
reaches the impression' that the general
level of express rates in the country as
a whole are not excessive. Kindel v.
Adams Express Co., 13 I. C. C. 475, 491.
(a) Bulk as an element is to be con-
sidered in determining the reasonable-
ness of an express rate. Ohio Face Brick
Mfrs. Ass'n v. Adams Express Co., 20
I. C. C. 582, 584.
19. Commercial Advantages.
See Equalization of Rates, 3.
(a) A community entitled to a certain
express rate cannot have this rate de-
nied it upon the ground that certain
other communities have been benefited
through a readjustment of rates. Doug-
las Shoe Co. v. Adams Express Co., 19
I. C. C. 539, 541.
See Comparative Rates.
(a) A comparison of the rates at
which express companies do business at
other localities is more important in the
determination of the reasonableness of
these rates than it would be in the de-
termination of the reasonableness of
freight charges, because of the manner
in which express business is conducted.
Sanford v. Western Express Co., 16 I. C.
C. 32, 35.
(b) Where a rate has been made in
competition with the United States mails
it cannot be taken as a comparison of a
reasonable rate upon larger packages to
which such competition did not apply.
Kindel v. Adams Express Co., 13 I. C.
(c) The express rate on a 1-lb. pack-
age from London to Denver of 0c as
compared with the 70c rate from Denver
to London does not prove the latter ra j e
unreasonable, in view of the fact that
the package in the shipment from Lon-
don to Denver is carried part way by
the English parcels post, whereas it
moves all the way by express on a ship-
ment in the opposite direction. Kindel
v. Adams Express Co., 13 I. C. C. 475, 497.
(a) An express rate may not be un-
reasonable or discriminatory when made
in competition with the United States
mails. Sanford v. Western Express Co.,
16 I. C. C. 32.
22. Long Maintenance of Rate.
(a) It cannot be conceded that an al-
leged erroneous publication of a rate
which remains in effect for a period of
more than eight years is a sufficient rea-
son for the increase of such rate. Frank-
lin, Stiles & Franklin v. Southern Ex-
press Co., 21 I. C. C. 88.
(b) Where an express rate has been
in effect for a long time it is presumed
to be reasonable. Reynolds v. Southern
Express Co., 13 I. C. C. 536, 540.
23. Percentage of Freight Rate.
(a) Where the only justification of an
increased express rate is a statement
that it ought to be a certain percentage
of the freight rate, it cannot be held that
the express company has sustained the
burden of proof imposed upon it by the
Act. Franklin, Stiles & Franklin v.
Southern Fxpress Co., 21 I. C. C. 88.
24. Profit and Capitalization.
See Evidence, 7; Interstate Com-
merce Commission, 7; Reasonable-
ness of Rates, 5.
(a) The cost of service is fairly to
be considered in determining the reason-
ableness of a rate. Ohio Face Brick
Mfrs. Ass'n v. Adams Express Co., 20
I. C. C. 582, 584.
(b) Since the connection between the
value of the express service rendered
and the cost of the property employed in
rendering it is so slight little reference
can be had to such cost in determining
the reasonableness of express rates. The
same is true of capitalization, and to de-
cide the question of reasonableness of
rates, inquiry must be had into the char-
acter of the business, the amount of cap-
ital required for its conduct, the hazard
involved, and, especially, the profits the
companies are making under the rates
attacked. Sanford v. Western Express
Co., 16 I. C. C. 32, 35.
(c) The base rates per 100 Ibs. of de-
fendant express company from Phoenix,
Mesa and Tempe, Ariz., to various points
in Arizona. Colorado, New Mexico, Kan-
sas and California are held to be ex-
cessive and lower rates established, the
Commission taking into consideration the
special need of such points for express
service on shipments of manufactured
386 EXPRESS COMPANIES, 24 (d) FACILITIES AND PRIVILEGES, 1 (d)
articles, sea foods, butter and eggn, etc.;
the fact of defendant's monopoly of the
express service in this territory, and the
fact of the excessive net earnings de-
rived by defendant on its general busi-
ness. Maricopa County Commercial Club
v. Wells, Fargo & Co., 16 I. C. C. 182, 184.
(d) A profit of 10 per cent of the
gross earnings of express companies is
in view of the comparatively small value
of the property invested, an extremely
liberal rate. Kindel v. Adams Express
Co., 13 I. C. C. 475, 493.
(a) Even were it true that express
companies have accumulated a surplus
by the imposition of charges in the past
which were, when made, unjust and un-
reasonable, the Commission cannot un-
dertake to distribute that surplus to the
public by putting into effect rates which
are not fairly compensatory for the pres-
ent service. Kindel v. Adams Express
Co., 13 I. C. C. 475, 490.
26. Value of Express Property.
See Special Contract, 7 (b).
(a) In determining the reasonable-
ness of freight rates, the value of the
property which a railroad company de-
votes to the use of the public is an im-
portant element, but in passing upon
express company rates this element is
of little importance, since tne property
devoted to such use is comparatively
insignificant. Kindel v. Adams Express
Co., 13 I. C. C. 475, 481.
FACILITIES AND PRIVILEGES.
I. JURISDICTION OF COMMISSION.
1. In general.
II. CARRIER'S DUTY TO FURNISH
2. In general.
5. Cooperage and bailing.
6. Dumping and trimming.
7. Free back-haul.
8. Free storage.
9. Grain doors.
10. Loading, unloading, bracing,
11. Notifying shipper of rejec-
12. Scaleage deductions and
13. Staking and binding.
14. Storing, grading and resack
III. PUBLICATION AND TARIFFS.
17. Obligation to publish.
18. Reshipping under through
19. Retroactive application.
20. Substitution of tonnage.
21. In general.
See Auction Company; Baggage
Transfer; Cartage; Express Com-
I. JURISDICTION OF COMMISSION.
1. In General.
See Interstate Commerce Commis-
sion, 1 (g), (cc); Procedure Be-
fore Commission, 13 (L).
(a) There is no specific authority in
the Act under which the Interstate Com-
merce Commission may require carriers
to devise and frame regulations to make
its order effective, and specific power is
only conferred upon the Commission it-
self to make regulations and practices
in lieu of those which it finds in violation
of the Act. N. Y. C. & H. R R. R. Co.
v. I. C. C., 168 Fed. 131, 136.
(b) Transit is a practice or regulation
included within the provisions of the fif-
teenth section over which the Commis-
sion has jurisdiction, and it may in a
proper case require carriers to accord
that privilege. In Re Transportation of
Wool, Hides and Pelts, 23 I. C. C. 151,
(c) Under section 15, as amended in
1910, the Commission is empowered to
determine and prescribe what will be
the just, fair and reasonable regulation or
practice which shall be thereafter fol-
lowed by the carrier as to the services
which the carrier is required to give
under section 1. If language can be used
which will bring within the jurisdiction
of the Commission all rates, regulations
and practices of the carrier touching the
eceipt or delivery of freight and by all
acilities, such language is found in the
Drovisions of the present Act, which ef-
fected a complete change in the law as
affecting such interstate carriers. Mo-
bile Chamber of Commerce v. M. & O.
R. R. Co., 23 I. C. C. 417, 421.
(d) Upon a petition for the establish-
ment of milling-in-transit and elevator
FACILITIES AND PRIVILEGES, 1 (e) (o)
allowances, it appeared that there was
no mill at that point, but that certain
interests were anxious to build there if
a satisfactory rate adjustment could be
obtained. While the Commission would
not ordinarily be disposed to require
publication of tariffs which could not be
used, under certain circumstances, as in
this case, the privilege will be ordered
in. Suffern Grain Co. v. I. C. C. R. R. Co.,
22 I. C. C. 178, 180.
(e) The Commission has power to
forbid discrimination in making allow-
ances at one point while denying them
at another similarly situated. Suffern
Grain Co. v. I. C. R. R. Co., 22 I. C. C.
(f) The Commission found certain
privileges at one point when denied to
another an unjust discrimination. In
such a case the Commission may prop-
erly order the discrimination to be re-
moved, but not by ordering a transit
privilege to be accorded. Douglas & Co.
v. C. R. I. & P. Ry. Co., 21 I. C. C.
(g) The Commission has jurisdiction
to determine whether the inbound or out-
bound carrier at a milling-in-transit point
should furnish the equipment for the out-
bound haul where each carrier contends
that it is the duty of the other to fur-
nish such equipment, and by refusing to
do so subjects the shipper to annoyance
and expense. Brook-Rauch Mill & Ele-
vator Co. v. St. L. I. M. & S. Ry. Co., 21
I. C. C. 651, 654.
(h) While a common carrier must
serve the traveling and the shipping
public upon equal terms and without dis-
criminations and preferences in under-
taking to perform certain duties for those
who travel or ship their merchandise
over its lines, it does not assume any
obligation to those who do neither the"
one nor the other. If any such obliga-
tion exists they are not to be found in
the Act, and are beyond the power of
the Commission to enforce or regulate.
To a certain extent the public stations,
depots and grounds of carriers are their
private property, subject to their own
control with respect to any private busi-
ness carried on, in or upon them, pro-
vided that what is thus done for the
public is in itself a reasonable use of
the property, and contributes to the pub-
lic convenience or to the advantage of
the carrier. Southwestern Produce Dis-
tributers v. Wabash R. R Co., 20 I. C. C.
(i) Where the classification primarily
affects and controls the rates or charges
demanded, charged or collected by any
common carrier or carriers subject to the
provisions of the Act for the transporta-
tion of property as defined in the first
section of the Act, or publishes the regu-
lations or practices of such carrier or
carriers affecting such rates, the Com-
mission is authorized and empowered to
pass upon such rates, or charges, or such
regulations or practices. National Hay
Ass'n v. M. C. R. R. Co., 19 I. C. C. 34, 38.
(j) Where a business is alleged to
have been built up on the strength of a
sorting-in-transit privilege, when such
privilege is taken ?way the Commission
may decline to order its re-establishment.
Schmidt & Sons v. M. C. R. R. Co., 19
I. C. C. 535.
(k) Omaha and Detroit not being
served by the same carriers, a complaint
seeking the extension to Detroit of a
transit privilege enjoyed at Omaha is
dismissed, the Commission's policy being
to curtail such privileges. Schmidt &
Sons v. M. C. R. R. Co., 19 I. C. C. 535,
(1) The Commission has jurisdiction
to remove unjust discrimination resulting
from a rule or practice relating to the
enclosing of advertising matter or prizes
in packages of goods, as well as that re-
sulting from a rate. Ouerbacker Coffee
Co. v. Southern Ry. Co., 18 I. C. C. 566,
(m) The Commission is expressly au-
thorized and empowered to pass upon
the reasonableness of a charge for trans-
portation or the reasonableness of any
regulation or practice affecting such
charge, expressed in a tariff issued by
any carrier subject to the provisions of
the Act. Hood & Sons v. Del. & Hud.
Co, 17 I. C. C. 15, 19.
(n) The mere owning of a majority
of stock by a shipper in a corporation
performing a service for a railroad at
compensation involving no more than
reasonable profit is no violation of the
Act; but a paper organization cannot
evade the provisions of the law. Mer-
chants' Cotton Press & Storage Co. v.
I. C. R. R. Co., 17 I. C. C. 98, 105.
(o) There can be no question as to
the right and power of the Commission
to order the removal of an unjust dis-
crimination arising from the withdrawal
of a transit privilege and to prescribe
FACILITIES AND PRIVILEGES, 1 (p) 2 (ff)
such reasonable rates and regulations as
will effect such removal. Douglas & Co.
v. C. R. I. & P. Ry. Co., 16 I. C. C. 232, 245.
(p) Free elevation of grain may be
prohibited ,b.y the Commission, since
there is no difference in principle be-
tween the giving of the service and the
giving of the money with which to buy
the service. Traffic Bu., Merchants' Ex-
change v. C. B & Q. R. R. Co., 14 I. C. C.
(q) The Commission has jurisdiction
under section 15 of the Act to determine
the obligation of a carrier to bring pack-
ages of fruit and vegetables shipped in
carloads to the car door in the process
of delivery. Wholesale Fruit & Produce
Ass'n v. A. T. & S. F. Ry. Co., 14 I. C. C.
(r) The Commission has jurisdiction
to determine what are just and reason-
able practices. California Commercial
Ass'n v. Wells, Fargo & Co., 14 I. C.
C. 422, 425.
II. CARRIER'S DUTY TO FURNISH
2. In General.
See Demurrage, 4 (c); Evidence, 17
(d), 51 (d); Loss and Damage,
(a) It is undue prejudice for a car-
rier to deny to points on its line a tran
sit privilege at Chicago while partici-
pating in through rates under which
other carriers grant such privileges to
complainant's competitors on their
lines. Van Natta Bros. v. C. C. C. & St.
L. R. R. Co., 23 I. C. C. 1, 5.
(aa) The proviso of section 3 that a
carrier shall not be required to give the
use of its tracks or terminal facilities
to another carrier engaged in like busi-
ness can have no application where the
carrier is already permitting the use of
its tracks or terminal facilities. Mer-
chants & Mfrs. Ass'n v. Penn. R. R Co.,
23 I. C. C. 474, 476.
(b) Carriers have gone to unwar-
ranted lengths in the granting of transit
privileges. In Re Transportation of Wool,
Hides and Pelts, 23 I. C. C. 151, 171.
(bb) Transit in many cases is bene-
ficial in its application. When it can
be applied without discrimination it re-
sults in the diffusion of business in
giving rival communities the relative ad-
vantages to which they are entitled and
which can be accorded them in no other
way, and, generally speaking, in the ap-
plication of lower transportation charges.
The commercial operations of this coun-
try have, in many instances, grown up
under the exercise of transit privileges
which could have been developed in no
other way. In Re Transportation of
Wool, Hides and Pelts 23 I. C. C. 151,
(c) The point at which traffic is to
be interchanged should be determined
by carriers, but the Commission will
decide the matter in case of disagree-
ment. Chamber of Commerce of New-
port News v. S. Ry. Co., 23 I. C C.
(cc) Transit privileges are of benefit
to carriers, dealers and the public. Blod-
gett Milling Co. v. C. M. & St. P. Ry.
Co., 23 I. C. C. 448, 451.
(d) When a carrier publishes a pro-
portional rate from a basing point to a
certain destination it thereby makes it-
self a link in the through transportation,
and whatever privileges it accords to
millers at the basing point it should ac-
cord to millers on its line intermediate
thereto. Southern Illinois Millers' Ass'n
v. L. & N. R. R. Co., 23 I. C. C. 672, 678.
(dd) A carrier may not permit one
shipper to provide a facility and per-
form a service and compensate it there-
for while refusing a similar privilege to
another shipper. Federal Sugar Refin-
ing Co. v. B. & O. R. R. Co., 20 I. C. C.
(e) A shipper is entitled not only to
a fair use of a carrier's facilities but to
the assurance that no one fares ratably
better. Hillsdale Coal & Coke Co. v.
P. R. R. Co., 19 I. C. C. 356, 368.
(ee) No violation of the statute re-
sults from a preference, though found to
exist, to a corporation engaged solely in
the compression of cotton in which it has
no interest. Merchants' Cotton Press &
Storage Co. v. I. C. R. R. Co., 17 I. C. C.
(f) A carrier, leasing part of its right
of way and erecting thereon an expensive
elevator, which it leases to a competitor
of complainant at a nominal rental, oper-
ates as an unlawful preference. Brook-
Rauch Mill & Elevator Co. v. M. P. Ry.
Co., 17 I. C. C. 158.
(ff) The law does not require a car-
rier to give its cars and tracks under
FACILITIES AND PRIVILEGES, 2 (g) 3 (a)
any terms for use as warehouses or
places of business. Wilson Produce Co.
v. Pa. R. R. Co., 16 I. C. C. 116, 122.
(g) Railroads are public servants and
it is their first duty to accord to the
public proper facilities. In Re Through
Passenger Routes, 16 I. C. C. 300, 309.
(h) There is no more insidious and
effective way by which a carrier may
discriminate between its shippers than
either a regulation or practice that de-
nies to them the equal enjoyment of
its facilities. Rail and River Coal Co.
v. B. & O. R. R. Co., 14 I. C. C. 86, 88.
(i) The underlying purpose of the
interstate commerce legislation was to
put shippers on a basis of absolute
equality; to assure to them not only
equal rates but an impartial enjoyment
of the facilities and services of inter-
state commerce. Rail and River Coal
Co. v. B. & O. R. R. Co., 14 I. C. C.
(j) It is no duty of carriers to fur-
nish storehouses for goods they carry.
New York Hay Exchange v. Penn. R.
R. Co, 14 I. C. C. 178, 185.
(k) The delivery of goods to a carrier
and the receiving of goods from a car-
rier are duties devolving upon the ship-
per for which the carrier cannot be com-
pelled 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. In the
Matter of Allowances for the Transfer of
Sugar, 14 I. C. C. 619, 627.
(1) The Commission will neither ap-
prove nor permit the application of tran-
sit privileges under circumstances that
would impair the integrity of the through
rate. Blackwell Milling & Elevator Co.
v. A. T. & S. F. Ry. Co., Unrep. Op. 483.
(m) It is a well-known fact that
throughout the Northwest rates upon
various kinds of grain are highly com-
petitive, and that proportional rates and
reshipping arrangements are common.
Electric Malting Co. v. C. M. & St. P. Ry.
Co., Unrep. Op. 504.
(n) Section 3 of the Interstate Com
merce Act requires railroad (common
carriers to offer all reasonable, proper
and equal facilities for the inter-
change of traffic between their respect-
ive lines and for the receiving, forward-
ing and delivering of passengers and
property to and from their several lines
thus connected therewith, and provides:
"But this shall not be construed as
requiring any such common carrier
to give the use of its track or ter-
minal facilities to another carrier en-
gaged in like business." HELD, this
language could not be said to amount
to a substantive enactment. It is a mere
interpretation clause, which is designed
to restrain, if necessary, the generality
of the language which precedes it.
Pittsburgh, etc., R. R. Co. y. R. R.
Comm., 171 Ind. 189, 210, 86 N. E. 328.
See Compress Companies and
(a) Cotton shipped into Memphis
was drayed back and forth by defend-
ant carriers to compressing plants lo-
cated in that city to be compressed
and then carried from Memphis to des-
tination points at the through rate.
Defendants paid the expense of drayage
and compression to private companies,
allowing 17 %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 estab-
lished a compressing plant at South
Memphis, some two miles from the mu-
nicipal line. The stock in the company
was principally owned by dealers and
shippers of cotton. The company con-
nected its plant with the lines of
defendants by a system of switching
tracks. On cotton compressed by the
defendant warehouse the defendant car-
riers allowed lOc per bale for switch-
ing the same to and from its ware-
house and 50c per bale for compression.
Defendant carriers charged a rate of 2Qc
a bale for hauling cotton from ware-
houses in Memphis to South Memphis.
Complainant alleged that the stock-
holders of defendant warehouse com-
pany at South Memphis being them-
selves shippers obtained lower .rates
through the dividends derived by them
from the profits of their warehouse com-
pany. Complainant introduced no evi-
dence to show that -the defendant ware-
house company made any profit on cot-
ton compressed by it at the lOc switch-
ing charge and 50c compressing charge.
HELD, complainants, not being them-
selves shippers of cotton, and failing
to show that defendant warehouse com-
pany was making any profits at the
FACILITIES AND PRIVILEGES, 4 (a) (d)
lOc and 50c charges failed to estab-
lish a case of unjust discrimination be-
tween shippers, as it was perfectly
lawful for carriers to make special con-
tracts with private companies which