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In determining as to whether there has been an undue and unreasonable prefer-
ence in any particular instance, the sole question to be considered is as to whether
all the cars hauled over the carrier's lines have been prorated so as to give each
and every shipper on its lines his proportionate share of facilities to which he is
entitled on the basis agreed upon as the means by which there should be a fair and
equal distribution of such car service*

§ 4030. Rule of Carrier. — Where a railroad has adopted a system of dis-
tribution of cars in violation of the Interstate Commerce Act, leaving out of con-
sideration private cars, the court may leave them out of consideration in an action
by a shipper for departure from the system of distribution resulting in discrim-
ination.^

§ 4031. Capacity and Output of Mine. — In the distribution of cars by a
railroad company between operators of coal mines on its line in times of shortage,
the percentage of cars to which each mine is entitled should be determined solely
by the physical capacity of the mine to furnish coal for shipment ; and a rule of
distribution by which such capacity is taken as one, while the amount of ship-
ments for the preceding two years is taken as two, the sum of the rated capacity
and such shipments being divided by three to determine the basis of distribution,
is unfair and inequitable to new mines, and results in giving an undue preference
or advantage to old mines, in violation of the interstate commerce law.^

Present Output. — Where, in a mandamus proceeding against a carrier to
prevent discrimination in the distribution of cars among certain coal companies,
it was admitted that the carrier owned no coal cars, but obtained them from
another railroad, and allotted cars to the several mining districts according to a
specified rating, the court had power to fix> the percentage of cars which the
carrier should distribute to relator in proportion to the present output of rela-
tor's mine, there being nothing to indicate any threatened or probable change in
such output."^

Allotment to New Mines. — The method adopted by a railroad company for
fixing the percentage of cars to which the several coal mines on its line in a cer-
tain district were entitled in distributing cars betw^een them in times of shortage,
b-y taking the actual shipments made from each mine during the season when
there was a full supply of cars and also the possible output of such mine and
making an average, counting the former as two units and the latter as
one, is not discriminative as against the newer mines.^ In such a distribution
the allotment of an arbitrary number of cars for development to new mines
which have had no opportunity to establish a percentage within reasonable limits
is lawful.-'

3. United States v. West Virginia cairn Coal Co. v. Baltimore, etc., R. Co.,

Northern R. Co., 125 Fed. 252, quoted in 1G5 Fed. 113..

Pitcairn Coal Co. v. Baltimore, etc., R. 7. Present output. — West Virgmia

Co., H35 Fed. n.3. Northern R. Co. v. United States, 134

4.' Facts considered.— Pitcairn Coal Co. Fed. 1',)^<, r,7 C. C. A. 220.

V. Raltinu.rc. etc., R. Co., 105 Fed. 113. 8. Allotment to new mines.— Pitcairn

5. Rule of carrier. — Puritan Coal Min. Coal Co. v. Baltimore, etc., R. Co., 154
Co. V. Pennsylvania R. Co., 237 Pa. 420, Fed. 108.

85 Atl. 42fi. 9. Pitcairn Coal Co. v. Baltimore, etc.,

6. Capacity and output of mine. — Pit- R. Co.. 154 T'ed. 108.



§§ 4032-4035 carriers. 3646

§ 4032. Unfulfilled Contract of Mining- Company. — The contention that
a mining company has large contracts, and therefore it must have a preference in
cars by which it might keep its contracts, is imtenable.^"'

§ 4033. Prompt Return of Cars by Mining Company. — A rule of a rail-
road company under which any coal mine operator on its line using its terminal
tracks at the seacoast and there unloading its cars within five days on an average
during any month is given as a premium a fifty per cent larger allotment of cars
during the next month is an attempted evasion of the provisions of the Interstate
Commerce Act requiring a fair and impartial distribution of cars between shippers,
and gives an undue preference or advantage to shippers so favored, in violation
of such act. 11 "Relator insists that the court below erred in its ruling in relation
to what is known as the 'Curtis Bay premium.' The defendant says that to
encourage a prompt discharge and return of coal cars, and also the use of its own
tracks at Curtis Bay, the terminal of the railroad, at Baltimore, it put in force
a rule by which all shippers or consignors who during the month average not
more than five days' detention of the cars assigned to them were granted a
premium of fifty per cent additional to their car supply for the next month. It
is also insisted that this opportunity is open to all shippers who consign coal to
Baltimore for water transportation. It is insisted by the relator that, if the road
desires to bring about a quick unloading and return of cars, it should do so by a
penalty in the nature of demurrage for delay and that to attempt to secure
promptness by offering a premium is in violation of the spirit of the act. The
method adopted by the railroad company in this respect seems to us to be still
another means by which the carrier is enabled to evade the requirements of the
act. By this system it is possible for certain favored companies to secure a large
number of cars in excess of the amount to which they would be entitled under
a fair and equal distribution of the same, while, on the other hand, the carrier
could adopt a plan by which those who are not prompt in making deliveries at
that point could be made to pay penalties by demurrage without aft'ecting the
car supply one way or the other, and thus, without inconvenience to the carrier,
place all shippers on equality. That this system by which premiums are given
to those who are prompt in making delivery at Curtis Bay can be used so as to
give certain shippers an undue and unreasonable preference over those who are
less fortunate is apparent, -and we diink constitutes a violation of the provisions
of the act." 12

§ 4034. Between Mining Companies on Main and Branch Lines. — Un-
der Interstate Commerce Act, which requires railroad companies to furnish cars
to shippers on collateral branch lines "without discrimination in favor of or
against any such shipper," shippers on the main line of a road and those on a
collateral branch line are entitled to precisely the same treatment in the distribu-
tion of cars.i^

§ 4035. Between Warehousemen. — A railroad having permitted the erec-
tion of grain warehouses along its right of way in which grain was stored for

10. Unfulfilled contract of mining com- having been adopted instead of the im-
pany. — Pitcairn Coal Co. v. BaUimore, position of a demurrage charge to en-
etc, R. Co., 16,5 Fed. 113. courage prompt return of cars, and en-

11. Prompt return of cars by mining large the available supply for use, and
company. — Pitcairn Coal Co. v. Balti- being open to all alike. Pitcairn Coal
more, etc., R. Co., 165 Fed. 113. Co. v. Baltimore, etc., R. Co., 154 Fed.

But it had been held in the circuit 108.

court that the statute is not violated by 12. Pitcairn Coal Co. v. Baltimore, etc.,

the allowance by the railroad company of R. Co., 165 Fed. 113.

an extra percentage of cars to an op- 13. Between mining companies on main

erator vi'hich during the preceding month and branch lines. — Pitcairn Coal Co. v.

has unloaded and returned its cars within Baltimore, etc., R. Co., 165 Fed. 113.
a certain average time; such practice



3647 interstate; commerce act. §§ 4035-4036

producers and owners for hire as well as grain purchased and owned by the
warehousemen promulgated a rule requiring all orders for cars for the shipment
of grain from such warehouses to be made by the warehousemen. The rule
operated to the prejudice of private storers of grain through the use of cars or-
dered by the warehousemen for the shipment of their own grain before cars could
be obtained for the shipment of grain in the warehouse owned by stores, and
by the appropriation of cars intended for storers by the warehousemen. The
• railroad company, under its duty to see that no discrimination was practiced,
was bound either to change the rule, or to see that it was not permitted to operate
in favor of one shipper and against another.^'*

Warehouseman as Agent of Carrier. — Where a railroad having permitted
the erection of grain elevators along its right of way for the storage of grain by
producers and other owners, pending shipments, promulgated a rule requiring all
orders for cars to be used in the shipment of grain for such warehouses to come
through the warehousemen, a warehouseman in ordering cars for a storer of
grain pursuant to such rule is the agent of the railroad company for that purpose,
and not the agent of the storer, so that the railroad company is liable for the
warehouseman's negligent or unfaithful performance of such duty.^^

§ 4036'. In Acceptance and Delivery of Freight. — Place of Loading
Live Stock. — A railroad company may designate as its loading place for live
stock the stockyards of a private corporation, and may refuse to deliver or re-
ceive live stock to or from other stockyards, whether they be public or private. ^'^

Delivery to Carrier's Ow^n Stockyards. — Where two stockyards are situ-
ated at substantially the same point as depots for live stock having the same gen-
eral destination, but one is located on and maintained by the defendant railroad
company while the other is located on the line of another railroad, that there is
nothing in the Interstate Commerce Act, which requires the defendant company
to accept live stock billed from foreign states to the yards on the other railroad
rather than to its own yards located on its line, even though there is a connection
between the two roads. ^" Unless a preference of its own depot to that of an-
other road is forbidden, the defendant is not within the act of congress. Suppose
that the other station and the defendant's station were side by side, and that their
tracks w^ere connected within or just outside the limits of the station grounds. It
could not be said that the defendant was giving an undue or unreasonable prefer-
ence to itself or subjecting its neighbor to an undue or unreasonable disadvantage
if it insisted on delivering live stock which it had carried to the end of the transit
at its own yard.^"^

Facilities for Unloading. — If the live stock are to be unloaded, the defend-

14. Between warehousemen. — North- statute two railroad companies might be
western Warehouse Co. ?■. Oregon R., required to make track connections. So
etc., Co., 159 Fed. 975. much of the statute as undertook to reg-

15. Warehouseman as agent of carrier. "'ate rates was not passed upon. See
—Northwestern Warehouse Co. z: Ore- Minneapohs, etc., R. Co. v. Mmnesota,
^on R., etc.. Co.. 159 Fed. 97.5. ISfi US. 2.57, 46 L. Ed. 1151, 22 S. Ct.

1- T ... J J T t 900. There is no act of congress that at-

16. In acceptance and dehvery of ^ ^^'^^ i^e courts the power to re-
freight.-\orth western Warehouse Co. r. .^'^ contracts to be made in a case like
Oregon R etc., Co 159 Fed. 97o citmg ;',^j^ „ ^^,^^^^1 Stockyards Co. v. Louis-
Central Stockyards Co. ^. Louisvdle etc ^,j,j^ ^ ^ ^9^ ^, ^ ,,,_ 4, L.

?• £ o^f ^- ^- ^^'^' ^^ ^- ^''^- ^^'^' '-^ Kd. 5(55, 24 S. Ct. 339.

V . et. .iS'd. jg_ These views are sanctioned by what

17. Delivery to carrier's own stock- ^.^s said in Covington Stockyards Co. v.
yards. Central Stockyards Co. v. Louis- Keith, 139 U. S. 128, 35 L. Ed. 73, 11 S.
ville, etc., R.^ Co., 192 U. S. 5(58, 48 L. Ct. 461. The fact that the plaintiflf's
Ed. 565, 24 S. Ct. 339. ^ stockyards are pul>lic (h>es not change

"All that was decided in Wisconsin, the case. Central Stockyards Co. 7'.
etc.. Railroad v. Jacohsr.n, 179 U. S. 287. Louisville, etc., R. Co., 192 U. S. 568, 48
45 L. ]",d. 194, 21 S. Ct. 115, was that hy L. I'.d. 565, 24 S. Ct. 339.



S.§ 4036-4039 carriers. 3648

ant has the right to unload them where its appliances for unloading are, and can
not he recjuired to establish other appliances near by.^^

Where Cattle to Remain in Cars. — If the live stock are to remain in the de-
fendant's cars it can not be required to hand those cars over to another railroad
without a contract, and the courts have no authority to dictate a contract to the
defendant or to require it to make one.^"

§ 4037. In Taking on and Letting Off Passengers. — Refusal by a rail-
road company to stop its train to let oft" a passenger who purchased a ticket at a
point on its own road, outside the state, at a station at which it sto])ped its trains
to let oft passengers who purchased tickets over other roads at points outside the
state, is a violation of Interstate Commerce Act.^^

§ 4038. In Manner of Shipment. — The provision of the Interstate Com-
merce Act, making it unlawful for any common carrier to give any undue or un-
reasonable preference to any person, company, or locality, or particular descrip-
tion of traffic, and providing that such carriers shall afford all reasonable, proper,
and equal facilities for the interchange of traffic between their respective lines,
and for receiving, forwarding, and delivering passengers and property to and
from their several lines and those connecting therewith, and shall rfbt discrimi-
nate in their rates and charges between such connecting lines, but this shall not
be construed as requiring any such common carrier to give the use of its tracks or
terminal facilities to another carrier engaged in like business, does not require a
railroad company to receive freight in. the cars in which it is tendered by a con-
necting line, and transport it in such cars, paying car mileage therefor, when it
has cars of its own available, and the freight would not be injured by transfer. -

§ 4039. In Time of Transportation. — An undue and unreasonable prefer-
ence is accorded a shipper by an agreement to expedite a shipment of horses so as
to reach a connecting carrier in time to be carried by a special fast train ; the
shipper being charged the regular rates, which make no provision for such special
service.-" But the action of a railroad passenger agent in guarantying that a
theater troupe, to whom he sells a party-rate ticket, shall arrive at their destina-
tion at a given time, is not the giving of an undue or unreasonable preference or
advantage, within the meaning of the interstate commerce law (24 Stat. 380, §

Switching Service. — \\ here an interstate carrier established a rate for spe-
cial switching service, which was for particular services rendered individual ship-
pers or consignees, an agreement that perishable shipments should be expedited
by quicker switching service was not a discrimination. - ''

19. Facilities for unloading. — Coving- 23. In time of transportation. — Act Feb.
ton Stockyards Co. v. Keith, 139 U. S. 4, 1887, §§ 3, 6, and Act Feb. 19, 1903;
128. 35 L. Ed. 73, 11 S. Ct. 461; Central Chicago, etc., R. Co. v. Kirby, 32 S. Ct.
Stockyards Co. v. Louisville, etc., R. Co., ()48, 225 U. S. 155, 56 L. Ed. 1033, Ann.
192 U. S. 568, 48 L. Ed. 565, 24 S. Ct. 339. Cas. 1914A, 501. reversing judgment, 90

20. Where cattle to remain in cars.— N. E. 252, 242 111. 418.

Central Stockyards Co. v. Louisville, etc., For a common carrier engaged in in-

R. Co., 192 U. S. 568, 48 L. Ed. 565, 24 terstate commerce to agree with a par-

S. Ct. 339; Atchison, etc., R. Co. v. Den- ticular shipper to expedite the shipment

ver, etc., R. Co., 110 U. S. 667, 28 L. at regular rates, even where no rate has

Ed. 291, 4 S. Ct. 185. been established for special expedition, is

21. In taking on and letting off passen- a discrimination, violative of Act Cong.
gers. — Gulf, etc., R. Co. v. Moore (Tex. Feb. 19, 1903. Johnson v. New York,
Civ. App.), 80 S. W. 426, judgment re- etc.. Railroad (Me.), 88 Atl. 988.
versed 83 S. W. 362, 98 Tex. 302, 4 Am. 24. Foster v. Cleveland, etc., R. Co., 56
& Eng. Ann. Cas. 770. Fed. 434.

22. In manner of shipment. — Oregon, 25. Switching service. — Johnson v. New
etc., R. Co. v. Northerji Pac. R. Co., 51 York, etc., Railroad (Me.), 88 Atl. 988.
Fed. 465.



3649 INTERSTATE COMMERCE ACT. §§ 4040-4043

§ 4040. In Reshipping Privileg'es. — The granting by the railroad com-
panies operating Hnes of railroad from Mississippi and Ohio River points to
Xashville, and beyond, of the privilege of unloading grain, grain products, and
hay shipped from or through such river points at Nashville and reshipping the
same for more distant points to the southeast, within six months at through
rates, which ^rule has been in force for forty years, held, on the undisputed facts,
to have been due to, and justified by, competition by water transportation on the
Cumberland River from the Ohio and not to constitute an undue and unreason-
able preference and advantage or an undue and unreasonable prejudice and dis-
advantage as between Nashville and points in Georgia, in violation of Interstate
Commerce Act.^*^

§ 4041. In Allowances to Shipper. — The provision of the Interstate Com-
merce Act that, if the owner of property transported shall render services con-
nected with the transportation or furnish any instrumentality used therein, a just
and reasonable allowance may be made therefor, and giving the interstate com-
merce commission power to determine and fix such allowance,-" applies only to
allowances provided for by the schedules published by the carrier and applicable
to all shippers similarly circumstanced, and such provision is not available as a
defense to a carrier when sued for discrimination by making a secret allowance
to a favored shipper.-'^

§§ 4042-4044. Remedies— § 4042. Burden of Proof.— When it is

shown that the carrier has not supplied the facilities demanded, the burden is
upon the defendant, in order to exonerate itself from such charge of undue pref-
erence, to show that it is prorating its cars fairly and equally among all the oper-
ators who are similarlv situated and engaged in transporting freight over its
lines.29

§ 4043. Mandamus. — Parties. — Where, on an application for mandamus
against a carrier to prevent discrimination in the furnishing of cars to relator and
two certain other coal companies, the petition alleged and the return admitted
that the president of the railroad company was himself one of, and also largely
interested in another of, the coal companies other than relator, and was, in ef-
fect, in control of the railroad company, and that what was done by such com-
pany was done through the president, he was a proper party to the proceedings.^^
Though the mandate was addressed to the railroad company and to its president,
and each of them according to their several and respective powers, the judgment
for costs went against the carrier alone, such judgment was not joint, but should
be taken distributively, as afifecting the president only according to his powers. ^^

Amendment of Writ. — Where an alternative mandamus against a carrier
commanded it to furnish relator, for the transportation of its coal, without dis-
crimination, at least a certain per centum of the total car supply to be distributed
by the carrier at the time the writ was served, or to show cause to the contrary,
the court's power to issue the writ being statutory, was not within the strict rule
of the common law with respect to amendments, so that, on the court's announ-
ing its conclusion that relator was only entitled to a less per centum of the car

26. In reshipping privileges. — Louisville, 28. Langdon v. Pennsylvania R. Co.,
etc., R. Co. v. L'nitc-d States, 197 Fed. 58. 194 Fed. isr,.

27. In allowances to shipper. — (Act 29. Remedies. — Pitcairn Coal Co. v.
Feb. 4, 1887, c. 104, § 15, 24 vStat. 384 fU. Bahiinorr, itc, R. Co.. 1()5 Fed. 113.

S. Comp. vSt. 1901, p. 3105]), as amended 30. Mandamus. — West Virginia North-
by Act June 29, 1906, c. 3591, § 4, 34 crn R. Co. v. United States, 134 Fed. 198,
Stat. 590 (U. S. Comp. St. Supp. 1909, p. 07 C. C. A. 220.

1158); Langdon v. Pennsylvania R. Co., 31. West Virginia Northern R. Co. v.

194 Fed. 486. See post, "Allowance for United States, 134 Fed. 198, 07 C. C. A.

Service of Shipper," §§ 4120-4124. 220.



§§ 4043-4045 carriers. 3650

supply, the court was authorized to permit relator to amend the alternative writ
to conform to the facts as found.^-

§ 4044. Summary Remedy. — In the absence of legislation providing the
means by which summary relief could be afforded the shipper, it would be an
easy matter for the common carrier, by favoritism, to build up one class of ship-
pers and at the same time utterly destroy the business of another class similarly
situated, and it was to prevent this kind of discrimination that the original act^^
and the acts amendatory and supplemental thereto were passed."*

§ 4045. Combinations and Monopolies. — The seventh section of the In-
terstate Commerce Act provides that it shall be unlawful for any common carrier
subject to the provision of the act to enter into any combination, contract, or
agreement, expressed or implied, to prevent by change of time schedule, carriage
in different cars, or by other means or devices, the carriage of freights from be-
ing continuous from the place of shipment to the place of destination; and no
break of bulk, stoppage, or interruption made by such common carrier shall pre-
vent the carriage of freights from being, and being treated, as one continuous car-
riage from the place of shipment to the place of destination, unless such break,
stoppage, or interruption was made in good faith for some necessary purpose,
and without any intent to avoid or unnecessarily interrupt such continuous car-
riage or to evade any of the provisions of the act.^-^ A contract for the carriage
of stock provided that the stock should be unloaded at an intermediate point, and
the shipper had a contract with live stock dealers at this intermediate point to sell
the stock there and substitute other stock in the same cars for transportation to
the point of destination; the original shipper receiving compensation for the use
of his cars. As the railroad company was not a party to this agreement, it did
not, even if in violation of the Interstate Commerce Act, render the railroad's con-
tract for the carriage of the stock invalid.^*'

Establishing Through Routes. — It is no violation of said section for a rail-
road company to enter into contracts with other companies for the establishment
of through routes, and through rates, for the continuous carriage of interstate
traffic.^'^

Charging Unlawful Rates. — In an action for injuries to complainant's prop-
■ erty and business by an alleged combination and conspiracy between interstate
railroads controlling the shipment of anthracite coal, an allegation that plaintiff's'
loss resulted from their being obliged to pay "unlawful rates" for the transporta-
tion of coal due to such combination and conspiracy was not eff'ective to allege
that the rates charged had been declared unlawful by the Interstate Commerce
Commission."'^

Ownership of Lumber Mill by Railroad. — Common ownership or control of
a lumber mill and a railroad which is an interstate carrier can not be prohibited

32. Amendment of writ. — West Virginia contrary to his authority and in viola-
Northern R. Co. V. United States, 134 tion of his duty to this defendant, but
Fed. 198, 67 C. C. A. 220. was also in violation of law and, particu-

33. Summary remedy. — Act of Feb. 4, larly in violation of §§ 7 and 10 of
1887, § 3. the Interstate Commerce Act [Act Feb.

34.' Act Mar. 2, 1889, § 10, 25 Stat. 862, 4, 1887, c. 104, §§ 7, 9, 24 Stat. 382; U. S.

c. 382, which is now § 23 of Interst. Comp. St. 1901, p. 3159, 3160], and also

Com. Act; Pitcairn Coal Co. v. Balti- paragraphs B, C and D under said § 10,

more, etc., R. Co., 165 Fed. 113. and therefore void, and can not form the

35. Combinations and monopolies. — In- basis of plaintiff's suit herein." South-
terstate Commerce Comm. v. Brimson, ern Kansas R. Co. v. Cox, 43 Tex. Civ.
154 U. S. 447, 38 L. Ed. 1047, 12 S. Ct. App. 79, 95 S. W. 1124.

1125; United States v. Trans-Missouri 37. Establishing through routes. — Ken-
Freight Ass'n, 166 U. S. 290, 41 L. Ed. tucky, etc., Bridge Co. v. Louisville, etc.,
1007, 17 S. Ct. 540; Pennsylvania R. Co. R. Co., 37 Fed. 567, 2 L. R. A. 289.



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 103 of 214)