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at such wharf. "'^

Prepayment of Freight. — A common carrier engaged in interstate com-
merce may at common law, and under the interstate commerce law, demand pre-
payment of freight charges, when delivered to it by one connecting carrier, with-
out exacting such prepayment when delivered by another connecting carrier,
and may advance freight charges to one connecting carrier without advancing
such charges to another connecting carrier.*^^ The act is not violated
by receiving and forwarding, without prepayment of freight or car mile-
age, cars of other companies containing goods coming from one local-
ity, and refusing to do so, unless prepayment is made, when the goods are from

66. Decree 55 C. C. A. 63, 118 Fed. 113, ries freight ofifered by some forwarding
63 L. R. A. 213, affirmed in Central Stock- roads without prepayment of its_ charges
yards Co. v. Louisville, etc., R. Co., 192 does not oblige it to do likewise with
U. S. 568, 48 L. Ed. 565, 24 S. Ct. 339. freight offered by other forwarding roads.

67. Oregon, etc., R. Co. v.. Northern Little Rock, etc., R. Co. v. St. Louis, etc.,
Pac. R. Co., 51 Fed. 465, affirmed in 61 R. Co., 59 Fed. 400.

Fed. 158. 9 C. C. A. 409. See Act of An interstate carrier does not subject

Cong. July 2, 1864. another carrier to an "undue or unrea-

68. Wharfage facilities.— Oregon, etc.. sonable disadvantage" (Interstate Com-
R. Co. V. Ilwaco R., etc., Co., 51 Fed. 611. merce Act, § 3, cl 2) by exactmg the

„„ ^ . T3 n T1 V prepayment of freight on all property re-

69. Oregon etc., R. Co. z-. Ilwaco R.. ^^-^^^^ ^^^^ i^ ^^ ^ gj^,^^^ g^^ti^^^ though

•etc., L.O., 51 l^ed. bll. j^. ^^^^ ^^^ require charges to be paid

70. Ilwaco R., etc., Co. v. Oregon, etc., ;„ advance on freight received from other
R. Co., 57 Fed. 673, 6 C. C. A. 495. individuals and competing carriers at

71. Prepayment of freight. — Gulf, etc., such station. Little Rock, etc., R. Co. v.
R. Co. V. Miami Steamship Co., 30 C. C. St. Louis, etc.. R. Co., 63 Fed. 775, 11
A. 142. 86 Fed. 407. C. C. A. 417, 26 L. R. A. 192, affirming

The fact that a connecting road car- 59 Fed. 400.



3657 INTERSTATE COMMERCE ACT. § 4051

a different locality.'^ ^ The charter of the Northern Pacific Railroad Company
requiring that company to permit other companies to form running connections
with it on fair and equitable terms, includes only arrangements as to the time of
arrival and departure of trains, and to stations, platforms, and other facilities,
as will enable companies desiring to connect to do so without inconvenience, and
does not apply to discrimination in the prepayment of freight and car mileage on
goods tendered by connecting lines. "^^

Place of Interchange. — Where the charter of a railroad company provided
"that any and all such railroad or railroads hereafter constructed may connect
and join with the road hereby contemplated," the connection thus authorized is a
physical and not a business connection, and it does not require an interchange of
traffic at the point of junction."^ The fact that a railroad company interchanges
traffic with certain railroads, at its regular, established yard or depot (where it
has provided all reasonable, proper, and equal facilities for that purpose), and
refuses to interchange traffic with a new road at a point of connection where no
such facilities exist, does not constitute any "discrimination," or any "undue or
unreasonable preference or advantage," in favor of the railroads with which
such interchange is made J ^

Establishing New Connections. — The act does not require of a common
carrier of interstate commerce the duty of either forming new connections or
of establishing new stations for the reception and delivery of freights."^^ Under
the terms of a contract made by a bridge company and three railroad companies,
the railroad companies secured all reasonable and equal facilities for the inter-
change of cars and traffic between them, which interchange was conducted for
many years at the regular, established yard or depot of one of them, and the
expenses of such interchange were shared by them in certain fixed proportions.
After the passage of the act to regulate commerce, one of the railroad companies
voluntarily abandoned those facilities, and changed its business to another bridge,
for its own private benefit and advantage, and then sought to compel the company
(at whose yard the interchange of traffic had been conducted) to allow such in-
terchange at a new point of connection, and to afford at such point facilities
equal to those which the applicant had voluntarily abandoned. The application
was properly refused."'^

Who May Complain. — The Interstate Commerce Act of Feb. 4, 1887, pro-
vides that carriers, in certain contingencies, shall construct, switch connections on
the application of any lateral branch line of railroad or of any shipper tendering
interstate traffic, and that, if the carrier fails to install such connection on appli-
cation therefor in writing by any shipper, then the shipper may complain to the
commission. Such act only contemplated a complaint by a shipper, and that a
complaint by a lateral branch line railroad did not confer jurisdiction.'''^

One Line Extension of Other. — The offending line, being a separate, inde-
pendent company from the favored line, owning no stock therein, neither having
built, bought, nor leased it, conducted its business, nor received its earnings, could
not escape the inhibition of the statute by a mere contract for the interchange of
traffic. The effect of such contract could not be to make the one line a mere
extension of the other.'''-'

72. Oregon, etc., R. Co. v. Northern 76. Establishing new connections. —
Pac. R. Co., 9 C. C. A. 409, 61 Fed. 158, Kentucky, etc., liridge Co. v. Louisville,
affirming 51 Fed. 465. etc., R. Co., 37 Fed. 567, 2 L. R. A. 289.

73. Oregon, etc., R. Co. v. Northern 77. Kentucky, etc., Bridge Co. v. Louis-
Pac. R. Co., 9 C. C. A. 409, 01 Fed. 158, ville, etc.. R. Co., 37 Fed. 567, 2 L. R.
affirming 51 Fed. 4G5. See Act of Cong. A. 2S9.

July 2, 1804. 78. Who may complain. — Delaware,

74. Place of interchange. — Kentucky, etc., R. Co. v. Interstate Commerce
etc., Bridge Co. v. Louisville, etc., R. Comm., 106 Fed. 498.

Co., 37 Fed. 567, 2 L. R. A. 289. 79. One line extension of other.— New

75. Kentucky, etc., Bridge Co. v. Louis- York, etc., R. Co. v. New York, etc., R.
•ville, etc., R. Co., 37 P^d. 567, 2 L. R. Co., 50 Fed. 807.

A. 289.



§§ 4051-4052



CARRIERS.



3658



Terminal Company. — Though the offending Hne and the favored line, being
members of a terminal company, a combination of carriers by which the terminus
of the favored hne was connected with New York, were a legal unit within § 1
of the act providing that it shall apply to any common carrier or carriers engaged
in the transportation of passengers or property wholly by railroad, when both
are used under a common control for a continuous carriage or shipment from
one state, it was not thereby relieved from its obligation under the act to all roads
connecting directly with itself, of which petitioner was one.^*'

Remedies. — Where one connecting road is about to refuse another equal facil-
ities for the exchange of traffic, in violation of the Interstate Commerce Act, be-
cause of a boycott declared by a labor organization, a court of equity may compel
such interchange by mandatory injunction. "^^

§ 4052. Use of Tracks. — The Interstate Commerce Act provides that com-
mon carriers shall afford equal facilities for the interchange of traffic between



80. Terminal company. — New York,
etc., R. Co. z: New York, etc., R. Co.,
50 Fed. 867.

81. Remedies. — Toledo, etc., R. Co. v.
Pennsylvania Co., 54 Fed. 746, 53 Am.
& Eng. R. Cas. 293, 19 L. R. A. 395.

The normal condition — the status quo
— between connecting common carriers
under the interstate commerce law is a
continuous passage of freight backward
and forward between them, which each
carrier has a right to enjoy without in-
terruption, exactly as riparian owners
have a right to the continuous flow of a
stream without obstruction. Since Lord
Thurlow's time, the preliminary manda-
tory injunction has been used to keep
clear the stream. Robinson v. Lord
Byron, 1 Brown Ch. C. 588; Lane v. New-
digat, 10 Vesey 192. So an obstruction
to the flow of interstate freight must be
preliminarily enjoined, even though it re-
quires a mandatory injunction. The
quasi public nature of the duty to be per-
formed by the common carriers and the
irreparable character of the injury likely
to result are ample grounds for this. The
interstate commerce law recognizes the
necessity for such a remedy; for in sum-
mary equity proceedings at the instance
of the interstate commerce commission,
provided in § 16, as amended in 1889, ex-
press power to issue injunctions, manda-
tory or otherwise, to prevent violations
of the orders of the commission, is given
to circuit courts. Moreover, by a subse-
quent section, upon the application of an
interested person, the district and cir-
cuit courts may issue mandamus to com-
pel compliance by the common carrier
with the provisions of the act. As this
latter proceeding is denominated cumula-
tive in the statute, it does not prevent
the remedy by injunction; nor would it,
in any event, because the inadequacy of
the legal remedy which justifies equitable
intervention by injunction is only the in-
adequacy of a recovery in damages by
action at law. Attorney General v. The
Mid-Kent Railway Co., L. R., 3 Ch. 100.

In Chicago, etc., R. Co. v. Burlington,



etc., R. Co., 34 Fed. 481, it was held that
the duty imposed upon railroad compa-
nies by the Interstate Commerce Act, or
receiving from connecting roads freight
and passengers, is one which the federal
courts will enforce by mandatory injunc-
tion where the injury resulting from its
nonperformance is continuing; and it was
further held, following the case of the
Wabash Railroad, that a strike of loco-
motive engineers and firemen upon the
petitioner's road, causing a boycott
against it by the engineers and firemen
of all other lines, defendant's included,
and endangering a strike on defendant's
line if it receives cars from plaintiff, is
no excuse for refusal to receive them.
The court said: "In the next place, what
disposition shall be made of the complain-
ant's application for a mandatory injunc-
tion against the defendant company and
its managing officers, compelling them to
perform their duty as required by the law
of both congress and the state of Iowa?
These defendants have appeared by coun-
sel and admitted the truth of the alle-
gations of the bill, and they do not deny
that they are required by law to receive
and move the complainant's cars. They
admit that they have refused to perform
this duty, and they give as a reason for
their refusal that, if they receive and haul
the complainant's cars their firemen and
locomotive engineers will abandon their
service and leave the company without
the means of operating their lines.
There can, of course, be no doubt about
the law of both the general and state
governments requiring the defendant cor-
poration to receive and move the com-
plainant's cars, whether empty or loaded.
The law of Iowa provides that it sliall be
the duty of any railway corporation to
receive and transport the empty or loaded
cars furnished by any connecting road
to be delivered at any station or stations
on the line of its road to be loaded or
discharged, or reloaded and returned to
the road so connecting. 1 McClain's
Ann. St., 367, § 10."



3659



INTERSTATE COMMERCE ACT.



§§ 4052-4053



their lines, but this shall not be construed as requiring any such carrier to give
the use of its tracks or terminal facilities to another carrier engaged in like
business.'^^ Where the defendant had contracted with a city to allow other roads
to use its terminal facilities, and the state had provided by statute that different
companies might have a joint use of such facilities. The contract, and the rights
of the other roads, were not affected by the above provision but must be deter-
mined by the state statutes.^" And an interstate carrier which enters into an
arrangement with a connecting carrier for through billing, rating, and loading,
and for the use of its tracks and terminals, is not obliged to make the same ar-
rangement with other connecting carriers, though the physical facilities for an
interchange of traffic are the same.^^

§ 4053. Joint Through Routes.— Prior to the passage of the Act of June
29, 1906, connecting railroads were free to adopt or refuse to adopt joint through
tariff* rates, and this freedom was not abridged, as between the Union Pacific
Railroad Company and the Central Pacific Railroad Company, by either § 12 of
the Act of July 1, 1862, requiring the roads of such companies to be operated as
one continuous line, so far as the public or the government are concerned, or § 15
of the Act of July 2, 1864, which requires them to aft'ord and secure to each
equal advantages and facilities as to rates, time, and transportation without dis-
crimination. «-^ The personal preferences of many travelers for a southern route



82. Use of tracks.^The provision of
the Interstate Commerce Act, that the
requirement that all railroads shall pro-
vide reasonable facilities for the inter-
change of traffic shall not require one
carrier to give the use of its track or
terminal facilities to another engaged in
like commerce, is not a substantive en-
actment, but a mere interpretation clause
designed to restrain, if necessary, the
generality of the language preceding it.
Pittsburgh, etc., R. Co. v. Hunt (Ind.),
86 N. E. 328.

83. Iowa V. Chicago, etc., R. Co., 33
Fed. 391.

84. Little Rock, etc., R. Co. v. St. Louis,
etc., R. Co., 63 Fed. 775, 11 C. C. A. 417,
26 L. R. A. 192, affirming 59 Fed. 400.

85. Joint through routes. — United States
V. Union Pac. R. Co., 188 Fed. 102.

Prior to act of 1906. — A court of equity
has no power, either at common law or
under the interstate commerce act, to
compel a railroad company engaged in
interstate commerce to enter into a con-
tract with another company for a joint
through rate and joint through-routcing
of freight and passengers. Little Rock,
etc., R. Co. V. St. Louis, etc., R. Co., 41
Fed. 559.

An interstate carrier may enter into a
contract with one connecting carrier for
tiirougli transportation, through joint
traffic, tiirough billing, and for the divi-
sion iA through water, without being ob-
ligated to enter into a similar contract
with another connecting carrier. Gulf,
etc., R. Co. V. Miami Steamship Co., 86
Fed. 567, 2 L. R. A. 289.

No authority is conferred upon com-
nion carriers of interstate commerce to
issue through tickets to passengers, or



through bills of lading for property at
through rates, over connecting lines, in
the absence of such arrangements be-
tween the companies. Kentucky, etc..
Bridge Co. v. Louisville, etc., R. Co., 37
Fed. 568, 2 L. R. A. 289.

In the absence of through traffic ar-
rangements between two railroad com-
panies, the one has the right to treat
freights tendered to it by the other as
local business, and to charge for the
transportation thereof its local rates to
destination; and in doing so no discrimi-
nation is made against the other company
on the traffic it carries; nor does the
cornpany charging local rates on such
freights make or give any undue or un-
reasonable preference to other lines, or
to the traffic they handle, with whom it
has agreements for through-routeing,
and at through joint rates, which may be
lower than its rates to the same points.
Kentucky, etc., Bridge Co. v. Louisville,
etc., R. Co., 37 Fed. 567, 2 L. R. A. 289.

Rev. St. § 5258 (embracing Act June
15, 1866), authorizing the carriage of traf-
fic from one state to another, and, to
that end, the formation of continuous
lines by mutual agreement, confers no
power to compel a railroad company to
make through routes and through rates
with one connecting line because it has,
by agreement, made them with another.
Kentucky, etc.. Bridge Co. v. Louisville,
etc., R. Co., 37 Fed. 567, 2 L. R. A. 289.
A railroad company, engaged in inter-
state commerce, can make an exclusive
contract with a connecting carrier for
througli billing and rating, and such con-
tract can not l)e alleged, by another con-
necting carrier, as an unjust discrimina-
tion. St. Louis Drayage Co. v. Louis-
ville, etc., R. Co., 65 Fed. 39.



.| 4053 CARRIERS. 3660 '^

■between eastern points and points on the Northern Pacific Railway between Port-
land and Seattle do not make the through route via the Northern Pacific Railway-
unreasonable or unsatisfactory, so as to justify the interstate commerce commis-
sion in the exercise of its power to establish through routes where no reasonable
or satisfactory through route exists, in ordering the establishment of through
routes between those points via the Union Pacific Railway, so as to put the latter
road on an equal footing with the Northern Railway Company in the use for
Ihrough travel of the road belonging to the latter between Portland and Seattle.^^

Where Route Has Been Established. — The commission has no power to
make an order for a new through route if a reasonable and satisfactory through
route already exists, and the existence of such a route may be inquired into by
the courts.^" \\^hile there was no through rate and no through route there was,
in fact, a through shipment from St. Louis to Leadville. Its interstate character
could not be destroyed by ignoring the points of origin and destination, separa-
ting the rate into its component parts and by charging local rates and issuing
local waybills, attempting to convert an interstate shipment into intrastate trans-
portation. For when goods shipped from a point in one state to a point in an-
other are received in transit by a state common carrier, under a conventional di-
vision of the charges, such carrier must be deemed to have subjected its road to
an arrangement for a continuous carriage or shipment within the meaning of the
act to regulate commerce. This common arrangement does not depend upon the
establishment of a through route or the issue and recognition of a through bill
of lading, but may be otherwise manifested. ^^

Routing Goods. — There is no principle of common law which forbids a sin-
gle railroad corporation, or two or more of such corporations, from selecting,
from two or more other corporations, one which they will employ as the agency
by which they will send freight beyond their own lines, on through bills of lad-
ing, or as their agent to receive freight, and transmit it on through bills to their
own lines, and without breaking bulk ; and the right to make such selection is
not taken away by the interstate commerce law.**'* Nor is a connecting road
which permits through billing and routing with one forwarding road oblige to do
likewise with another forwarding road, though the latter possesses all the neces-
sary tracks and terminal facilities ; and it may still insist on carrying all freight
offered by such road in its own cars, and to that end require reloading and re-
billing at local rates. '*'^ The Interstate Commerce Act as amended June 18, 1910,
providing thai, in all cases where at the time of delivery of a shipment two or
more through routes shall have been established, the person making the shipment
shall have the right to designate the route of transportation, does not apply to an
interstate shipment made in 1907.'^^

Right of Tap Line to Participate in. — Tap line railroads connecting timber
lands and lumber mills with trunk line railroads, though owned by the owners of
the tnnber and mills, are entitled to participate with the trunk lines in joint
through rates where organized as common carriers under the state laws.^-

86. Interstate Commerce Comm. v. (Ind.), 103 N. E. 839.

Northern Pac. R. Co., 216 U. S. 538, 54 92. Right of tap line to participate in.

L. Ed. 608, 30 S. Ct. 417. —United States v. Louisiana, etc., R. Co.,

87. Where route exists. — Interstate 34 S. Ct. 741, 234 U. S. 1, Ann. Cas.
Commerce Comm. v. Northern Pac. R. 1913D, 880.

Co., 216 U. S. 53S, 54 L. Ed. 608, 30 S. A tap line raih'oad is entitled to the

Ct. 417. same allowance from the trunk lines out

88. Baer Bros. Mercantile Co. v. Den- of joint through rates for logs and lum-
ver, etc., R. Co., 233 U. S. 479, 34 S. Ct. ber offered to the tap line by its pro-
■641. prietary company as it receives out of

89. Routing goods. — Prescott, etc., R. tlie joint rate for non-proprietary log and
Co. V. Atchison, etc., R. Co., 73 Fed. lumber* traffic under exceptions in Hep-
438. e-xplaining New York, etc., R. Co. v. burn Act June 29, 1906, forbidding car-
New York, etc., R. Co., 50 Fed. 867. riers to transport in interstate commerce

90. Little Rock, etc., R. Co. v. St. articles in which they are associated or
Louis, etc., R. Co., 59 Fed. 400. interested. United States v. Butler

91. Cleveland, etc., R. Co. v. Hayes County R. Co., 234 U. S. 29, 34 S. Ct. 748,



3661



interstate; commerce act.



§§ 4054-4055



§ 4054. Rates. — Railroad tracks connecting iron works with the track of
an interstate railroad on the grounds of the iron company and engines used
thereon are mere plant facilities, although transferred to a separate company or-
ganized as a railroad, and the latter is not a common carrier entitled to share in
the interstate rates so far as related to the business of the iron company. ^^

The proportion in which freight earned by two connecting railroads under a
joint tariff schedule is divided between them is a matter for their consideration
alone, and cannot be taken cognizance of by a court for the purpose of determin-
ing that the share received by one constitutes an unjust or discriminative rate,
tinder the interstate commerce law.'''* A reasonable division out of joint rates
can not be denied a common carrier for transportation services by the interstate
commerce commission because of any past or present derelictions or even the
fear of further violations of law.^^

§§ 4055-4057. Liability of Initial Carrier— § 4055. In General.—

The Act of June 29, iy06, provides that any common carrier receiving property
for interstate shipment shall be liable for any loss or injury thereto caused by it
or any common carrier to which such property may be delivered, or over whose
line such property may pass, and that no contract shall exempt such common
carrier from such liability.''" This provision is not unconstitutional ; but is in all
respects a valid enactment.'-'^ But the holder of a bill of lading was not bound
to sue the initial carrier, but might sue directly an intermediate carrier for loss of
or damage to goods on its line.''^

What Constitutes Through Shipment. — The delivery of an interstate ship-
ment of freight to an intrastate railroad under a through bill of lading and a
guarantee of through rate is a through shipment, and is governed by the Act of
June 29, 1906, making initial carriars liable for loss or injury caused by connect-
ing carriers.^'-* And so is a bill of lading dated in one state, showing a destina-
tion in another, and containing stipulations governing the entire transportation,
specifying not only rights, duties, or limitations relating to the parties, but also
to subsequent carriers. ^ A bill of lading for a through shipment is a through



93. Rate. — Crane Iron Works v. United
States, 209 Fed. 238.

94. Allen v. Oregon R., etc., Co., 98
Fed. 16. See post, "Charges of Connect-
ing Carriers," § 4149.

95. Louisiana, etc., R. Co. v. United
States, 209 Fed. 244.

96. Liability of initial carrier.— Mis-
souri, etc., R. Co. V. Stark Grain Co., 103
Tex. 542, 131 S. W. 410; Galveston, etc.,
R. Co. V. Crow (Tex. Civ. App.), 117 S.
W. 170; Kemendo v. Fruit Dispatch Co.
(Tex. Civ. App.), 131 S. W. 73; Missouri,
etc., R. Co. V. Carpenter, 52 Tex. Civ.
App. 585, 114 S. W. 900; Galveston, etc.,
R. Co. V. Piper Co., 52 Tex. Civ. App.
568, 115 S. W. 107; International, etc., R.
Co. V. Wilbourne (Tex. Civ. App.), 115
S. W. 111.

Under Rate Act (Act Cong. June 29,

1906, c. 3591, 34 Stat. 593 (U. S. Comp.
St. Supp. 1909, p. 1164), § 7, an initial
carrier is lial)le for damage caused by
the wrongful diversion of an interstate
shipment by a connecting carrier in an-
other state. Kemendo v. Fruit Dispatch
Co. (Tex. Civ. App.), 131 S. W. 73.



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 105 of 214)