Copyright
Thomas Johnson Michie.

A treatise on the law of carriers (Volume 4) online

. (page 107 of 214)
Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 107 of 214)
Font size
QR-code for this ebook


charged between such basing point and a local station beyond is not violative of
the Interstate Commerce Act.^^

Penalty for Overcharge. — A violation of Interstate Commerce Act provid-
ing that, if a carrier willfully violates any provisions of the act, it shall be_ liable
for penalty, is not made out by proof of an overcharge due to accident or mistake,
but is only established by evidence of a willful act or omission.'^*^

§ 4060. Established by Carrier. — Carriers have the right in the first in-
stance to fix their own rates, subject to the supervisory power of the commission
under the interstate commerce law.'*! It must be remembered that railroads are
the private property of their owners ; that while, from the public character of the
work in which they are engaged, the public has the power to prescribe rules for
securing faithful and efficient service and equality between shippers and communi-
ties, yet, in no proper sense, is the public a general manager.-i^ Subject to the
two leading prohibitions that their charges shall not be unjust or unreasonable,
and that they shall not unjustly discriminate, so as to give undue preference or
disadvantage to persons or traffic similarly circumstanced, the act to regulate com-
merce leaves common carriers as they were at the common law, free to make spe-
cial contracts looking to the increase of their business, to classify their traffic, to
adjust and apportion their rates so £,s to meet the necessities of commerce, and
generally to manage their important interests upon the same principles which
are regarded as sound, and adopted in other trades i.nd pursuits.^s "Section 13
authorizes any person complaining to apply to the commission, which shall in-



38. Terminal charges. — Interstate Com-
merce Comm. v. Chicago, etc., R. Co., 43
C. C. A. 209, 103 Fed. 249, affirmed in
186 U. S. 320, 46 L. Ed. 1182, 22 S. Ct.
824.

The imposition by railroad companies,
in addition to the terminal charge em-
braced in the through rates to Chicago,
of a terminal charge of $2 per car for
delivering live stock to the Union Stock
Yards in Chicago, although not justified
by an additional average charge of $1 per
car for trackage by the Union Stock
Yards Company, can not be said to be
unjust and unreasonable, where the
through rates to Chicago have since been
reduced from $10 to $15 per car, both
the terminal charges and the through
rates as reduced being in themselves just
and reasonal)le when separately consid-
ered as distinct charges. Decree in 43
C. C. A. 209, 103 Fed. 249, affirmed in
Interstate Commerce Comm. v. Chicago,
etc., R. Co., 22 S. Ct. 824, 186 U. S. 320,
46 L. Ed. 1182.

39. Interstate Commerce Comm. v. Al-
abama Mid. R. Co., 69 Fed. 227.

40. Penalty for overcharge. — United
States T. Texas, etc., R. Co., 185 Fed.
820.

41. Established by carrier. — Interstate
Commerce Comm. v. P>ahimore, etc., R.
Co., 145 U. S. 263, 36 L. Ed. 699, 12 S.

4 Car— 36



Ct. 844; Cincinnati, etc., R. Co. v. Inter-
state Commerce Comm., 162 U. S. 184,
40 L. Ed. 935, 16 S. Ct. 700, 4 Am. &
Eng. R. Cas., N. S., 223; Savannah, etc.,
R. Co. V. Florida Fruit Exch., 167 U. S.
512, 42 L. Ed. 257, 17 S. Ct. 998; Inter-
state Commerce Comm. v. Alabama Mid.
R. Co., 168 U. S. 144, 42 L. Ed. 414, 18
S. Ct. 45; Texas, etc., R. Co. v. Inter-
state Commerce Comm., 162 U. S. 197,
40 L. Ed. 940, 16 S. Ct. 666; Southern
Pac. Co. V. Interstate Commerce Comm.,
200 U. S. 536, 50 L. Ed. 585, 26 S. Ct.
330; Interstate Commerce Comm. v. Cin-
cinnati, etc., R. Co., 76 Fed. 183. ques-
tion certified and determined in 167 U. S.
479, 493, 42 L. Ed. 243, 17 S. Ct. 896.

Railway companies may contract with
shippers for a single transportation or
for successive transportations, subject to
a change of rates in the manner provided
in the interstate commerce act. Judg-
ment, 141 Fed. 1003, affirmed in Inter-
state Commerce Comm. v. Chicago, etc.,
R. Co., 209 U. S. 108, 52 L. Ed. 705, 28
S. Ct. 493.

42. Interstate Commerce Comm. v.
Cliicago, etc., R. Co., 209 U. S. 108, 52
L. I*".d. 705, 28 S. Ct. 493.

43. Interstate Commerce Comm. v. Al-
abama Mid. R. Co., 168 U. S. 144, 42 L.
l-:d. 414, 18 S. Ct. 45, quoting from the
opinion in 21 C. C. A. 51, 74 Fed. 715.



§§ 4060-4061



CARRIERS.



3668



stitute an investigation. Section 15 authorizes the commission to pass upon the
complf.iint. Section 16 authorizes it to make an award of damages, and provides
a method by which the circuit court of the United States may enforce the pay-
ment of the damages ; or, if the order is for anything other than the payment of
money, may enforce obedience to it by injunction or other proper process. These
provisions indicate that the intention of congress is that the carrier shall h£.ive the
right to fix its rates in the first place ; that the Interstate Commerce Commission
may, upon investigation, determine them to be unreasonable ; and thf.,t the cir-
cuit court of the United States may then, either at law or in equity enforce the
orders of the commission. In this way a uniform system can be maintained, and
inconsistent rulings i.s to reasonableness between courts and the commission, or
between dilTerent courts, avoided."^"*

Operation and Effect. — The rates provided and published by carriers under
and pursuant to the Interstate Commerce Act control over the rates agreed upon
between the carrier and shipper whenever there is a conflict between the two.'*^
A voluntary rate, established to meet competition, is not to be taken as the meas-
ure of what is reasonable.'**'

Where Not Unjust, Unreasonable nor Discriminatory. — Subject to the
two leading prohibitions that their charges shall not be unjust and unreasonable^
and that they sh^Jl not unjustly discriminate so as to give undue preference or
disadvantage to persons or traffic similarly circumstanced, the Interstate Com-
merce Act leaves common carriers as they were at the common law, free to make
specis.1 rates looking to the increase of their business, to classify their traffic, to
adjust and apportion their rates so as to meet the necessities of commerce and
their own situation and relation to it, and generally to manage their important
interests upon the same principles which are regarded as sound and adopted in.
other trades and pursuits.^'''

§§ 4061-4065. Established by Commission— § 4061. Under Origi-
nal Act. — Under the original act it was held that congress had not conferred
upon the Interstate Commerce Commission the legislative power to prescribe rates,,
either maximum, minimum or absolute.'*^ The power to pL,ss upon the reason-



44. WIckwire Steel Co. v. New York,
etc., R. Co., 181 Fed. 316.

45. Operation and effect. — Texas, etc.,
R. Co. V. Mugg, 202 U. S. 242, 50 L. Ed.
1011, 26 S. Ct. 628; Gulf, etc., R. Co. v.
Hefley, 158 U. S. 98, 39 L. Ed. 910, 15
S. Ct. 802; Coeur D'Alene, etc., R. Co.
V. Union Pac. R. Co., 49 Wash. 244, 95
Pac. 71.

46. Louisville, etc., Railroad v. Inter-
state Commerce Comm., 195 Fed. 541,
citing Lake Shore, etc., R. Co. v. Smith,
173 U. S. 684, 43 L. Ed. 858, 19 S. Ct.
565; Frederich v. N. Y., N. H. & H. R.
R., 18 Interst. Com. Comm. R. 481, 484;
Breese-Trenton Mining Co. v. Wabash R.
Co., 19 Interst. Com. Comm. R. 598, 600.

47. Where not unjust, unreasonable nor
discriminatory. — Delaware, etc., R. Co. v.
Kutter, 147 Fed. 51, 77 C. C. A. 315, cit-
ing Interstate Commerce Comm. v. Ala-
bama Mid. R. Co., 21 C. C. A. 51, 74 Fed.
715: S. C, 168 U. S. 144, 42 L. Ed. 414, 18
S. Ct. 45.

48. Established by commission. — Inter-
state Commerce Comm. v. Lake Shore,
etc., R. Co., 202 U. 8. 613, 50 L. Ed.
1171, 26 S. Ct. 766; Southern Pac. Co.
V. Colorado Fuel, etc., Co., 42 C. C.
A. 12, 101 Fed. 779; Interstate Commerce



Comm. V. Northeastern R. Co., 27 C-
C. A. 631, 83 Fed. 611; Interstate Com-
merce Comm. V. East Tennessee, etc., R»
Co., 85 Fed. 107; Farmers' Loan, etc.,.
Co. V. Northern Pac. R. Co., 83 Fed.
249; Illinois Cent. R. Co. v. Interstate
Commerce Comm., 206 U. S. 441, 51 L.
Ed. 1128, 27 S. Ct. 700; Interstate Com-
merce Comm. V. Cincinnati, etc., R. Co.,
167 U. S. 479, 505, 42 L. Ed. 243, 17 S.
Ct. 896; Savannah, etc., R. Co. v. Flor-
ida Fruit Exch., 167 U. S. 512, 42 L. Ed.
257, 17 S. Ct. 998; Interstate Commerce
Commission v. Alabama Mid. R. Co., 168
U. S. 144, 43 L. Ed. 414, 18 S. Ct. 45;
Chicago, etc., R. Co. v. Minnesota, 134-
U. S. 418, 33 L. Ed. 970, 10 S. Ct. 462;,
Reagan v. Farmers' Loan, etc., Co., 154
U. S. 362, 38 L. Ed. 1014, 14 S. Ct. 1047;:
St. Louis, etc., R. Co. v. Gill, 156 U. S.
649, 39 L. Ed. 567, 15 S. Ct. 484; Cincin-
nati, etc., R. Co. V. Interstate Commerce
Comm., 162 U. S. 184, 40 L. Ed. 935, 16-
S. Ct. 700, 4 Am. & Eng. R. Cas., N. S.,
223; Texas, etc., R. Co. v. Interstate
Commerce Comm., 162 U. S. 197, 40 L.
Ed. 940, 16 S. Ct. 666; Munn v. Illinois,
94 U. S. 113, 24 L. Ed. 77; Peik v. Chi-
cago, etc., R. Co., 94 U. S. 164, 24 L. Ed.
97; Express Cases, 117 U. S. 1, 29 L. Ed.



3669 INTERSTATE COMMERCE ACT. §§ 4061-4062

ableness of existing rates does not imply a right to prescribe rates. The reason-
ableness of the rate, in a given case, depends on the facts, and the function of the
commission is to consider these facts and give them their proper weight. If the
commission, instead of withholding judgment in such a matter until an issue
shall be made and the facts found, itself fixes a rate, that rate is prejudged by the
commission to be reasonable.'*'*

Legislative and Judicial Acts. — The power to prescribe rates is legislative.
It is one thing to inquire whether the rates which have been charged and collected
are reasonable — that is a judicial act; but an entirely different thing to prescribe
rates which shall be charged in the future — that is £., legislative act, and beyond
its powers.^" The power given is the power to execute and enforce, not to legis-
late. The power given is partly judicial, partly executive and administrative, but
not legislative.^^

By Application to Court for Mandamus. — The Interstate Commerce Com-
mission has not the right to prescribe r?:,tes which shall control in the future, by
their application to the court for a mandamus to compel the companies to comply
with their decision, that is, to abide by their legislative determination as to the
maximum rates to be observed in the future. ^^

Joint Rates. — Modern commerce is largely carried on over railways owned
and operated by different companies ; that congress in passing the Interstate Com-
merce Act assumed the power to determine the reasonableness of joint tariffs as
applied to connecting lines between the several states.^^ It is competent for the
commission or the courts to consider the through rate, however composed, or
however between dift'erent railroads so as to make a given charge, the reasonable-
ness of which is attacked, a mere division of ai through rate. Whether the dis-
puted advance is made over one road or the other, or in the rates over all, can
make no difference.^"*

§ 4062. Under Amendment of 1906. — It has been suggested that the
traffic managers are much better able, by reason of their knowledge and ex-
perience, to fix rates, and to decide what discriminations are justified by the cir-
cumstances, than the courts. This can not be conceded so far as it relates to the
Interstate Commerce Commission, which, by reason of the experience of its mem-
bers in this kind of controversy, and their great opportunity for full information,
is, in a sense, an expert tribunal. -^'^ It may be added that whether the members

791, 6 S. Ct. 542, 628; Thacker Coal, etc., ]fi7 U. S. 512, 42 L. Ed. 257. 17 S. Ct.

Co. V. Norfolk, etc., R. Co., 67 W. Va. 998.

448, 68 S. E. 107, 28 L. R. A., N. S., 108. 52. By application to court for manda-

In territories.— The Interstate Com- mus.— Interstate Commerce Comm. v.

merce Commission, prior to the amend- Cincinnati, etc., R. Co., 167 U. S. 479, 42

ment of the Act of August 28, 1906 (Act L. Ed. 243, 17 S. Ct. 896, followed in Sa-

Cong. Feb. 4, 1887, c. 104, 24 Stat. 379 vannah, etc., R. Co. v. Florida Fruit Exch.,

[U. S. Comp. St. 1901, p. 3154] as amended 1^7 U. S. 512, 42 L. Ed. 257, 17 S. Ct.

by Act Cong. Aug. 28, 1906, c. 3591, 34 998.

Stat. 584), had no jurisdiction to fix freight 53. Joint rates.— Cincinnati, etc., R. Co.

rates on shipments wholly within a terri- ''• Interstate Commerce Comm., 162 U.

tory. Ft. Smith, etc., R. Co. v. Chandler ^- ^«-^. ^0 E. Ed. 935, 16 S. Ct. 700, 4 Am.

Cotton Oil Co., 25 Okla. 82, 106 Pac. 10. & Eng. R. Cas., N. S., 223; Mmneapolis,

49. Interstate Commerce Comm. v. Ala- \\^-\ \^'':,l\ ^'"q' r.^^rJr?'^ ^- ^^ ^^^'
bama Mid. R. Co., 168 U. S. 144, 42 L. ''' J^" f.t' 1.151, 22 S.Ct 900.

V,\ ^^x i« ^ Pf Ar 5*' Illinois Cent. R. Co. v. Interstate

■'• t , . ': . .. . , . Commerce Comm., 206 U. S. 441, 51 L.

50. Legislative and judicial acts.— Inter- pj. ^gS, 27 S. Ct. 700; Cincinnati, etc., R.
state Commerce Comm. z;. Cincinnati, etc., Co. v. Interstate Commerce Comm., 162'
R. Co., 167 U. S. 479, 42 L. Ed. 243, 17 u. S. 184, 40 L. Ed. 935, 16 S. Ct. 700,.
^- ^t. 896. 4 y\„T ^ ir„j, p (-.j<- _ ^T ^^ 223.

51. Interstate Commerce Comm. v. Cin- 55. Under amendment of 1906. — East
cinnati, etc., R. Co., 167 U. S. 479, 42 L. Tennessee, etc.. K. Co. v. Interstate Com-
Ed. 243, 17 S. Ct. 896, followed in Sa- merce Comm., 39 C. C. A. 413, 99 Fed. 52;
vannah, etc., R. Co. v. Florida Fruit Exch., Interstate Commerce Comm. v. Louisville.

etc., R. Co., 118 Fed. 613.



§ 4062 CARRIERS. 3670

■of the commission be in fact expert or otherwise is not open to question, for they
.are, by the act, required to execute and enforce its provisions regulating com-
merce. ^^ The power to prescribe rates is conferred on the commission by the
amendment of June 29, 1906. Under the amended act therefore, rsJ.es may not
only be investigated and be pronounced unjust or unreasonable or discriminatory,
but other rates may be prescribed. -"^^"^

Exclusive Power of Commission. — Exclusive right to fix rates for inter-
state commerce being vested in the Interstate Commerce Commission, the shippers
and the courts are required to treat charges made as reasonable so long as they
are acquiesced in by the commission. ^^ What is a proper rate on fruit in pre-
cooling shipments, or a fair charge for hauling necessary ice or rendering other
transportation services are all rate-making matters committed to the commission.
It may determine what shall be the difiference in rate between carload and less
than carload lots. It may decide whether the difiference in revenue, due to a dif-
ference in method of loading, warrants a difference in the rate on carload ship-
ments of the same article. It may prescribe the form in which schedules shall be
prepared and arranged and may approve tariffs stating that the single rate in-
cludes both the line haul and accessorial services absorbed in the rate. Conversely,
it may prescribe a tariff fixing a through rate which includes not only the haul
of the fruit, but the haul t)f the ice necessary to keep the fruit in condition. All
these are matters committed to the decision of the administrative body, which,
in each instance, is required to fix reasonable rates and establish reasonable prac-
tices. The courts have not been vested with any such power. They can not make
rates. They can not interfere with rates fixed or practices established by the
commission unless it is made plainly to appear that those ordered are void.-''-^

Absolute or Arbitrary Power. — The authority granted to the Interstate
Commerce Commission by § 15 of the Interstate Commerce Act to prescribe just
and reasonable rates when it shall be of the opinion that the rates fixed by the car-
rier are unreasonable, is not an absolute or arbitrary power to act on any consid-
erations which the commission may deem best for the public, the shipper, and the
carrier, but its orders must be based on transportation considerations, and, while
it may give weight to all factors bearing either on the cost or the value of the trans-
portation services, it must disregard as well the demand of the shipper for pro-
tection from legitimate competition, domestic or foreign, for unlimited markets, or
for the enforcement of equitable estoppels arising from a justifiable expectation
that past rates will be maintained, as the demand of the carrier for the maximum
rate under which the traffic will move freely.*''*'

Restrictions on Power of Commission. — The provision which authorizes and
■empowers the Interstate Commerce Commission whenever, after full hearing upon
a complaint, it shall be of the opinion that the prescribed conditions exist, to deter-
mine and prescribe maximum rates to be charged by a carrier, places no restric-
tions on the commission in respect to the matters which it may take into considera-
tion, or the weight it shall give to every of such matters in informing itself what

56. Interstate Commerce Comm. v. L. Ed. 608, 30 S. Ct. 417; Interstate Com-
IvOuisville, etc., R. Co., 118 Fed. 613. merce Comm. v. Chicago, etc., R. Co.,

57. (Act of June 29, 1906, chap. 3-591, 209 U. S. 108. 52 L. Ed. 705, 28 S. Ct. 493;
§ 4, 34 Stat, at L. 589, U. S. Comp. Stat. Lipman v. Atlantic, etc., R. Co., 90 S. C.
Supp. 1909. p. 1158); Interstate Commerce 517, 73 S. E. 1026.

Comm. V. Humboldt Steamship Co., 224 58. Exclusive power of commission. —

U. S. 474, 56 L. Ed. 849, 32 S. Ct. 556; Geraty v. Atlantic, etc., R. Co., 211 Fed.

Interstate Commerce Comm. v. Chicago, 227.

•etc., R. Co., 218 U. S. 88, 54 L. Ed. 946, 59. Atchison, etc.. R. Co. v. United
•30 S. Ct. 651; Southern Pac. R. Co. v. States, 232 U. S. 199, 34 S. Ct. 291; In-
Interstate Commerce Comm., 219 U. S. terstate Commerce Comm. v. Union Pac.
433, 55 L. Ed. 283, 31 S. Ct. 288; Inter- R. Co., 222 U. S. 541, 56 L. Ed. 308, 32
•state Commerce Comm. v. Illinois, etc., S. Ct. 108.

R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 60. Absolute or arbitrary power. — Atchi-

S. Ct. 155; Interstate Commerce Comm. ?on, etc., R. Co. v. Interstate Commerce

■V. Northern Pac. R. Co., 216 U. S. 538, 34 Comm., 190 Fed. 591.



3671 INTERSTATE COMMERCE ACT. § 4062

opinion it ought to give, except that it shall not abuse its authority and proceed
arbitrarily without regard to the justice of the case, or give a judgment not fairly
within its power. *^^

For Period of Two Years. — If a complaint is made to the Interstate Com-
merce Commission concerning the unreasonableness of a rate, that body has the
authority to examine the subject, and, if it finds the rate complained of is, in and
of itself, unreasonable, having regard to the service rendered, to order the desist-
ing from charging such rate, and to fix a new and reasonable rate to be operative
for a period of two years.*^^

Joint Rates. — The authority of the commission to establish through routes
and joint rates is conditioned by the proviso that "no reasonable or satisfactory
through route exists." This condition is hot addressed solely to the opinion of the
commission, but may be re-examined by the courts as a jurisdictional fact.^^

As to One of Several Connecting- Carriers. — The Interstate Commerce
Commission acting on complaint of a shipper of unreasonable through charges
made up of the separate charges over connecting lines has power to revise the
rate on one line only as applied to the through transportation.*^'*

Fixing" Rate Zones. — The act does not confer power on the Interstate Com-
merce Commission to lower through rates between certain points, as between At-
lantic seaboard points a-nd Missouri River points, anxi between Mississippi River
points and Denver, without changing the rates to intermediate points, or finding
that existing rates are unjust or unreasonable, or otherwise in violation of the act;
the sole purpose and efifect being to arbitrarily create zones of trade, tributary to
given trade and manufacturing centers, and counteract the commercial advantages
possessed by certain cities by reason of their geographical position or otherwise,
by giving Atlantic Coast and Missouri River cities an artificial advantage over
intermediate points in shipments to the Missouri River and westward to points
east of Denver, and the east Mississippi cities, and Denver an advantage over
Missouri River cities to points west of Denver.^^

Fixing Through to Equal Local Rates. — On complaint made by shippers in
New Orleans to the complainant railroad company that certain th'rough rates on
certain classes of goods were unreasonably high and amounted to more than the
sum of the local rates, which had been in force for twenty years, and asking for
a reduction, the complainant changed its schedule by raising the local rates so that
their sum should equal the through rates which it had been charging. Thereafter
the New Orleans board of trade filed a complaint with the Interstate Commerce
Commission, which, after notice to the complainant and a full hearing, found that
the rates charged were unjust and unreasonable and entered an order requiring
a reduction of the local rates to the old schedule, and the reduction of the through
rates to the sum of the locals so reduced. The complainant then brought suit to

61. Restrictions on power of commis- Pac. R. Co. v. Interstate Commerce
sion.— Louisville, etc., R. Co. v. Inter- Comm., 219 U. S. 433, 55 L. Ed. 283, 31
state Commerce Comm., 184 Fed. 118. S. Ct. 288.

The interstate commerce act (Act Feb. 63. Joint rates. — Interstate Commerce
4, 1887, c. 104, § 15, 24 Stat. 384 [U. S. Comm. v. Northern Pac. R. Co., 216 U.
Comp. St. 1901, p. 3165]), as amended by S. 538, 54 L. Ed. 608, 30 S. Ct. 417; Inter-
Act June 29, 1906, c. 3591, § 4, 34 Stat. state Commerce Comm. v. Illinois, etc.,
589 (U. S. Comp. St. Supp. 1909, p. 1158), R. Co., 215 U. S. 452, 54 L. Ed. 280, 30
conferring power on the interstate com- S. Ct. 155; Interstate Commerce Comm.
merce commission to determine and pre- v. Chicago, etc., R. Co., 218 U. S. 88, 54
scribe "just and reasonal)le maximum L. Ed. 946, 30 S. Ct. 651; Southern Pac.
rates," does not intend to prescribe any R. Co. v. Interstate Commerce Comm.,
closer definition of the quality of an act 219 U. S. 433, 55 L. Ed. 283, 31 S. Ct.
done by the commission which will de- 288.

feat its validity than that it is prohibited 64. As to one of several connecting-

by the Constitution, or by legislation carriers. —P)acr P.rns. Mercantile Co. v^

clearly or by necessary implication for- Denver, etc., R. Co., 200 Fed. 614.
bidding it. Louisville, etc., R. Co. v. In- 65. Fixing rate zones. — Chicago, etc.,.

terstate Commerce Comm., 184 Fed. 118. R. Co. v. Interstate Commerce Comm.,

62. For period of two years. — Southern 171 Fed. 680.



§ 4062 CARRIERS. 3672

enjoin the enforcement of such order. There was no claim that the rates fixed
thereby were confiscatory or unremunerative. On the facts appearing the order
was within the scope of the powers of the commission, and that there was no
ground upon which the court was authorized to interfere with its* enforcement.^s

Fixing Relative Rate. — "The point of the complainants' contention is that
the commission, having found that the rates so complained of by the milling com-
pany were discriminatory, was bound to prescribe the maximum rate to be charged
in tiie future for the services, but that it failed to do so, and exceeded its powers
by prescribing relative rates. If the power conferred upon the commission were
simply and alone to prescribe maximum rates, there would be much force in the
complainants' contention. There is a marked distinction between that power and
the power to fix minimum or absolute rates. There is still greater distinction be-
tween it and the power to fix relative rates ; for, strictly speaking, power to pre-
scribe the relations which shall exist between charges is not power to fix them at all.
It is necessary to look further than to the power to prescribe maximum rates to
find authority for the order in question. This order attempted to remove the dis-
crimination against the milling company. It prescribed, in substance, that the
charges against it should be the same as those charged other shippers for services
similar in their nature. It did not prescribe how the charges should be equalized.
Raising the rate to the WesT:ern shipper would have complied with the order as
well as lowering the rate to the milling company. The end to be attained was the
removal of the discrimination. Now, the removal of discriminations is one of



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 107 of 214)