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essentially dift'erent, and justify the making of dift'erent rates.^''

§ 4114. Excursion Tickets. — The express recognition in the act to regu-
late commerce of the power of carriers engaged in interstate commerce to is-
sue nontransferable reduced-rate excursion tickets, when considered with the
restriction embodied in the act concerning equality of rates, and with the pro-
hibition against preferences, must be regarded as charging the carrier with the
duty of exercising due diligence to prevent the use of such tickets by other than
the original purchasers, and hence causes the nontransferable clause to be opera-
live and effective against anyone who wrongfully attempts to use such tickets.^

§ 4115. Terminal Charges. — The action of railroads entering Chicago in
dividing their charges on live stock shipped to that city, which previously in-
cluded delivery of the stock at the stockyards, so as to make a separate rate for
the haul to points on their lines and a terminal charge covering its transfer from

2. But, assuming the weight of evidence words, this section is rather illustrative

in this case to "be that the party-rate than exclusive. Interstate Commerce

ticket is not a "commutation ticket," as Comm. v. Baltimore, etc., R. Co., 145 U.

that word was commonly understood at S. 263, 36 L. Ed. 699, 12 S. Ct. 844.

the time of the passage of the act, but 3, Interstate Commerce Comm. v. Balti-

is a distinct class by itself, it does not more, etc.. R. Co.. 145 U. S. 263, 36 L-

necessarily follow that such tickets are p_(j_ ggg^ 12 S. Ct. 844.

unlawful. The unlawfulness defined by ^ Where not sold to general public—

§ 2 and § 3 consists either m an 'unjust interstate Commerce Comm. 7;. Baltimore,

discrimination or an undue or unrea- ^^^ _ j, q^^ ^^5 U. S. 263, 36 L. Ed. 699,

sonable preference or advantage, and the -^^ h Ct 844

object of § 22 was to settle beyond all ".,^tt -1. j ol ^ u- tt v j c*^ ^ ^

doubt that the discrimination in favor of 5- U^^t^d States soldiers. - United States

certain persons therein named should not ^P^'^^^^'^^"- ^- ^°-' ^^ ^- ^^ '

be deemed unjust. It does not follow, ^"' red. 785.

however, that there may not be other 6. Excursion tickets. — Bkterman v.

classes of persons in whose favor a dis- Louisville, etc., R. Co., 207 U. S. 205, 52

crimination may be made without such L. Ed. 171. 28 S. Ct. 91, 12 Am. & Eng.

discrimination being unjust. In other Ann. Cas. 693.


their own tracks to the stockyards, is not only legal, but desirable, as relieving
shippers whose stock does not go to the yards from payment of the terminal
charges ; hence, where the terminal rate is just and reasonable in itself, it is
not imlawfuU A terminal charge for delivering car loads of live stock to the
Union Stockyards in Chicago, a point beyond the carrier's line, if in itself
just and reasonable, and separately stated in the tariff schedules, as required by
the act can not be condemned or the carrier required to reduce it, on the ground
that it. taken with prior charges for transportation over the lines of the car-
rier, or of connecting carriers, makes the total charge to the shipper unreasona-
ble.^ A terminal charge for delivering carloads of live stock to union stock
yards in a city, at a point beyond the carrier's line, if in itself just and rea-
sonable, and separately stated in the tariff schedules, as required by the act,
can not be condemned or the carrier required to reduce it, on the ground that it,
taken with prior charges or transportation over the lines of the carrier, or of
connecting carriers, makes a total charge to the shipper unreasonable. That
which must be corrected and condemned is not the just and reasonable termi-
nal charge, but those prior charges which must of themselves be unreasonable
in order to make the aggregate of the charge from the point of shipment to
that of delivery unreasonable and unjust. In order to avail itself of the benefit
of this rule, the carrier must separately state its terminal or other special charge
complained of; for, if many matters are lumped in a single charge, it is impos-
sible for either shipper or commission to determine how much of the lump
charge is for the terminal or special services.^ It has been held that although
a terminal charge by carriers of live stock of two dollars per car, abstractly con-
sidered, would be just and reasonable in view of the trackage charge made
against the carriers by a stockyards company to which it delivered live stock,
yet, because it was a mere addition to the sum of the terminal charge embraced
ui the prior through rate, such terminal charge in addition to the compensation
included in the through rate was an unreasonable and unjust charge therefor in
itself, but because, prior to the order of the commission so adjudging, the rates
on live stock from points embraced in the territory covered by this complaint
to all western markets including Chicago, had been reduced by from ten to
fifteen dollars per car, considering the through rate as so reduced, it is not
unreasonable,^*^ and the carrier has the right to separate the carriage and termi-

7. Terminal charges, — Interstate Com- than the cost of service, and was there-
merce Comni. v. Chicago, etc., R. Co., 98 fore intrinsically just and reasonable, and
Fed. 173. could only be treated as unjust and unrea-

8. June 29, 1906, c. 3591, § 2, 34 Stat. sonable by considering "the circumstances
586 (U. S. Comp. St. Supp. 1907, p. 895). of the case;" that is, the through rate and
Decree, Stickney v. Interstate Commerce the fact that a terminal charge was in-
Comm., 164 Fed. 638, affirmed in 30 S. Ct. eluded in it, which, when added to the
66, 215 U. S. 98, 54 L. Ed. 112. *,wo dollar charge, caused the terminal

9. Interstate Commerce Comm. v. charge as a whole to be unreasonable.
Stickney, 215 U. S. 98, 54 L. Ed. 112, 30 Having therefore decided that the $2 ter-
S. Ct. 66. minal charge could only be held to be

10. The rate which was unjust and un- unjust and unreasonable by combining it
reasonable solely l^ecause of the $1 ex- with the charge embraced in the through
cess did not continue to be unjust and rate, necessarily the through rate was en-
unreasonable after this rate had been re- titled to be taken into consideration if the
duced by from ten to fifteen dollars. This previous conclusions of the commission
was based, not upon a finding of fact — were well founded. Interstate Commerce
as, of course, it could not have been so Comm. v. Chicago, etc., R. Co., 186 U.
based— but rested alone on the ruling by S. 320, 46 L. Ed. 1182, 22 S. Ct. 824.

the commission that it could not consider "The through rate existing prior to
the reduction in the through rate, but June the 1st, 1894, certainly in the ab-
must confine its attention to the $2 ter- sence of proof to the contrary, must be
minal rate, since that alone was tlie sul)- presumed to have provided in and of it-
ject matter of the complaint. But the self compensation for the services ren-
commission, in considering the terminal dered in making delivery at the stock-
rate, and expressly found that it was less yards." Interstate Commerce Comm. v.

§§ 4115-4117 cARRmRS. 372S

nal charges. 1^

Reasonableness Determined by Circumstances of Each Case. — W here
railroad companies engaged in the transportation of live stock from points in
other states to the union stockyards in Chicago have fixed a terminal charge for
the moving of each car from the end of their own tracks in Chicago to the stock-
yards, stating the through rate to the end of their tracks and the terminal charge
separately in their schedules, as required by the Interstate Commerce Act, the
legality of each charge must be determined by itself, without regard to the
other; and where the terminal charge, considered by itself, is reasonable for the
service rendered, the interstate commerce commission is without power to re-
duce it on the ground that, when added to the through rate, the total charge
from the point of shipment to the stockyards is excessive.^-

§ 4116. Industrial Track Service. — Transportation of cars and freight
intended for interstate commerce to and from industrial plants located from
one-fifth of a mile to seven miles from the main track of the carrier is not
the same service which the carrier performs when it delivers freight at its de-
pot or team tracks, the carrier being bound to perform such industrial track
service, in the absence of statute, only under an arrangement with the owner
of the industrial plant, for which it may charge a reasonable compensation. ^^
Where the work of a common carrier as to a proprietary company is merely a
plant facility, and the services rendered to such company are merely plant or in-
dustrial services as distinguished from transportation services, it is within the
powers of the interstate commerce commission to prohibit an allowance for
such services in a joint tariff schedule.^-*

As Substitute for Receiving and Delivery Service. — Delivery and re-
ceipt on industrial spur tracks within switching limits of car load freight in
interstate commerce is not an added service, for which the carrier can make
an additional charge to the line-haul rate to or from such city, where that rate
embraces a receiving and delivery service at team tracks or at freight sheds
within such limits, .for which the spur-track service is a substituted^

§ 4117. Demurrage Charges. — Since carriers engaged in interstate com-
merce are entitled to impose, as a condition to hauling private cars, such terms
as have a reasonable relation to the transportation service in which they are
employed, and may adopt such rules as will tend to provide a reasonably de-
pendable supply of equipment and prevent the withdrawal of such cars at will,
to serve the private purposes of the owners and as will keep them in active and
steady use, a rule imposing a reasonable demurrage charge on such cars while
standing on private tracks and while returned unloaded until the lading is re-
moved and the cars released, is reasonable and not violative of the owner's
rights, i**

Chicago, etc.. R. Co., 186 U. S. 320, 46 L. terstate Commerce Comm., 164 Fed. 638.
Ed. 1182, 22 S. Ct. 824. See, also. Coving- 13. Industrial track service. — Atchison,

ton Stockyards Co. v. Keith, 139 U. S. etc., R. Co. v. Interstate Commerce

128, S.'j L. Ed. 73, 11 S. Ct. 461. Comm., 188 Fed. 229; Southern Pac. Co.

11. Separation of terminal and freight v. Interstate Commerce Comm., 188 Fed.
charges. — There is no doubt as to the 241.

right of a carrier to divide its rates and 14. Louisiana, etc., R. Co. v. United

thus to make a distinct charge from the States, 209 Fed. 244.

point of shipment to Chicago and a sep- 15. As substitute for receiving and de-

arate terminal charge for delivery to the livery service. — Interstate Commerce

stock yards, a point beyond the lines of Comm. v. Atchison, etc., R. Co., 234 U.

the carrier. Interstate Commerce Comm. S. 294, 34 S. Ct. 814; Interstate Commerce

V. Chicago, etc., R. Co., 186 U. S. 320, 46 Comm. v. Southern Pac. Co., 234 U. S.

L. Ed. 1182, 22 S. Ct. 824. 315, 34 S. Ct. 820.

12. Reasonableness determined by cir- 16. Demurrage. — Procter, etc., Co. v..
cumstances of each case. — Stickney v. In- United States, 188 Fed. 221.



§§ 4118-4119

§ 4118. Charges for Reconsignment of Goods. — An additional charge
by a carrier of two cents per hundred-weight for the privilege of reconsigning
hay at a central point, originating in northwestern territory and shipped into
>=;ontheastern territory, is excessive, within the Interstate Commerce Act pro-
hibiting excessive rates, and thereby produces an unjust discrimination. i"

§ 4119. Through Rates. — Under the Interstate Commerce Act it is held
that joint through tariff rates are a question of agreement between the compa-
nies and under their control, and that an initial carrier could agree upon joint
through rates with one or several connecting carriers, or not, as it chose. The
rule is that a common carrier need not agree to carry beyond its own road, and
could agree upon joint through tariff rates; but where the carrier did take ad-
vantages of these rights, it was held that it could make such terms as it pleased,
whether or not it agreed to be liable for default of connecting carrier, at least
so long as they were reasonable and did not otherwise violate the interstate
commerce act.^'^ A shipment of freight over connecting carriers which have no
contract for joint through rates is not within the Act of March 2, 1889, au-
thorizing, but not requiring, connecting carriers to agree upon joint rates, and
providing a penalty for failure of a carrier to enforce such rates when agreed
on.i^ Where no specific rate from point of origin to destination of a through
shipment is provided, and no specific manner of constructing the combination
rate for it is prescribed, the lowest combination of rates applicable over the route
IS the lawful rate. 2*^

Reasonableness. — The fact that a through rate is made up of a through
rate to an intermediate point, with the local rate between that and the terminal
point added, does not render it unreasonable, where each of the two rates is
reasonable in itself. ^^

17. Charges for reconsignment of
goods. — Southern R. Co. v. St. Louis, etc.,
Grain Co., 153 Fed. 728, 83 C. C. A. 614.

Defendant railroad company, on ship-
ments of hay to southeastern points from
East St. Louis, made a charge of two
cents per 100 pounds above the rates
charged from Ohio river points on all
hay which was not unloaded into a ware-
house at East St. Louis from the cars in
which it was there received, whether such
hay was consigned to that point or billed
through to points of final destination,
while on all hay so unloaded into a ware-
house the additional charge was four
cents. Plaintiff owned warehouses in
East St. Louis from which it loaded and
shipped hay to southeastern points over
defendant's road and was required to pay
thereon the four-cent charge. Held, on
the evidence, that an additional charge of
one cent per 100 pounds for hay loaded
from warehouses would cover the differ-
ence in the expense to defendant, and the
charge made was to the extent of the ex-
cess above that unjust and unreasonable,
and that plaintiff was entitled to recover
the amount of such excess charges paid.
St. Louis, etc., Grain Co. v. Southern R.
Co., 149 Fed. 609, judgment affirmed in
153 Fed. 728, 82 C. C. A. 614.

18. Through rates. — Southern Pac. Co.
z. Interstate Commerce Comm., 200 U.
S. 536, 50 L. Ed. 585, 26 S. Ct. 330; In-
terstate Commerce Comm. v. Cincinnati,
etc., R. Co., 167 U. S. 479, 42 L. Ed. 243,
17 S. Ct. 896, affirmed and followed in

Savannah, etc., R. Co. v. Florida Fruit
Exch., 167 U. S. 512, 42 L. Ed. 257, IT
S. Ct. 998; Atchison, etc., R. Co. v. Den-
ver, etc., R. Co., 110 U. S. 667, 28 L. Ed.
291, 4 S. Ct. 185; Louisville, etc., R. Co.
V. West Coast Nav. Stores Co., 198 U.
S. 483, 49 L. Ed. 1135, 25 S. Ct. 745.

It is also undoubted that the common
carrier need not contract to carry beyond
its own line, but may there deliver to the
next succeeding carrier, and thus end its
responsibility, and charge its local rate
for the transportation. If it agree to
transport beyond its own line, it may do
so by such lines as it chooses. Atchison,
etc., R. Co. V. Denver, etc.. R. Co., 110
U. S. 667, 28 L. Ed. 291, 4 S. Ct. 185.

This right has not been held to de-
pend upon whether the original carrier
agreed to be liable for the default of the
connecting carrier after the goods are
delivered to such connecting carrier. As
the carrier is not bound to make a
through contract, it can do so upon such
terms as it may agree upon; at least, so
long as they are reasonable and do not
otherwise violate the law. Southern Pac.
Co. V. Interstate Commerce Comm., 200
U. S. 536, 50 L. Ed. 585, 26 S. Ct. 330.

19. Gulf, etc., R. Co. V. Nelson, 4 Tex.
Civ. App. 345, 23 S. W. 732.

20. Pecos, etc., R. Co. v. Porter (Tex.-
Civ. App.), 156 S. W. 267.

21. Reasonableness.— Interstate Com-
merce Comm. V. Western, etc., R. Co.,.
88 Fed. 186.

§§ 4119-4120 • CARRIERS. 3730

Each Railroad Considered Separate. — The making of a through rate on
interstate shipments by the joint action of connecting railroads is the act of
each, and brings each within the scope of the Interstate Commerce Act, and
renders it responsible for such rate, without regard to the proportion thereof
received for its own service. 22 The fact that a railroad line operated as a part
of a large railway system, considered as a separate road, fails to pay expenses,
does not justify the charging of unjust and unreasonable rates nor undue dis-
crimination in rates. -^

Joint Liability.— The joint through rates established by several carriers
must be construed as entireties. It follows, necessarily, that each carrier who
is a member of the through line must be regarded as severally as well as jointly
responsible, if the rate is unfair and oppressive. While this unfairness may
appear to be attributable to the exactions made by one particular carrier only,
the other members, by their assent, are joint participants in the wrong. ^-^ Where
there are regularly published rates, in which each of the carriers participate, and
their proportionate divisions are brought about by agreement between them-
selves, this constitutes a common control, management, or arrangement for a
continuous carriage or shipment, as defined by § 1, of the act, and therefore
each of the participating carriers is within the scope of the act, and to tne ex-
tent of its authority under the control of the interstate commerce commission. ^^

Shipment Through Foreign Country.— A contract for shipment of goods
from a foreign port to an inland point in the United States for a through rate
does not necessarily violate the interstate commerce law, though the proportion
of the through rate allowed for the carriage from the port of entry to the desti-
nation is less than the rate scheduled for freight originating at such port and
carried to such destination. -^^

Apportionment of Charges.— Where goods are received in transit under a
"conventional division of the charges," there is an apportionment of the charges
by agreement of the participating carriers.^'^

§§ 4120-4124. Allowance for Service of Shipper— § 4120. In Gen-
eral.— The law does not attempt to equalize fortune, opportunities, or abili-
Ties.2s The Interstate Commerce Act contemplates that interstate carriers may
use facilities owned by the shipper and make compensation therefor, and by the
Act of Tune 18, 1910, it is provided that if the owner of property transported
under this act directly or indirectly renders any service connected with such
transportation, or furnishes any instrumentality used therein, the charge and
allowance therefor shall be no more than is just and reasonable, and the com-
mission may after hearing on a complaint or on its own initiative, determine
what is a reasonable charge as the maximum to be paid by the carrier or car-
riers for the services so rendered or for the use of the instrumentality so fur-
nished, and fix the same by appropriate order, which order shall have the same
force and effect and be enforced in like manner as the orders above provided

22. Each railroad considered separate. granted against each and all of the re-

— Interstate Commerce Comm. v. Louis- spondent companies, so that the ^order

ville, etc., R. Co., 118 Fed. 613. of the commission may be enforced. In-

23. Interstate ' Commerce Comm. v. terstate Commerce Comnr. v. Louisville,
Louisville, etc., R. Co., 118 Fed. 613. etc.. R. Co., 118 Fed. 613 _

24. Joint liability.— Interstate Com- 26. Shipment through foreign country.
merce Comm. v. Louisville, etc., R. Co., —Southern Pac. Co. v. Redding, 17 Tex.
118 Fed. 613. citing Louisville, etc., R. Civ. App. 440, 43 S. W. 1061.

Co V. Behlmer. 17.5 U. S. 648, 44 L. Ed. 27. Apportionment of charges.—- Mutual

309, 20 S. Ct. 209; Cincinnati, etc., R. Co. Trans. Co. v. United States, 102 C. C. A.

V. interstate Commerce Comm., 162 U. S. 164, 178 Fed. 664. _

-J 84, 40 L. Ed. 935, 16 S. Ct. 700, 4 Am. 28. Allowance for service of shipper.—

& Eng R. Cas., N. S.. 223; Texas, etc., Interstate Commerce Comm. v. Diffen-

R. Co. V. Interstate Commerce Comm., baugh. 222 U. S. 42, 56 L. Ed. 83, 32 b.

162 U. S. 197, 40 L. Ed. 940, 16 S. Ct. Ct. 22; Penn Refin. Co. v. Western, etc.,

666. R. Co., 208 U. S. 208, 52 L. Ed. 456, 28

25. "In this case an injunction will be S. Ct. 268.



§ 4120

for under this section.-'^ It thus appears that the statute, while recognizing that
the carrier may lawfully make compensation for services rendered or facilities
furnished by the shipper, also recognizes that such transactions may be made
the cloak for the granting of reduced rates, secret rebates, and other abuses, and
carefully provides that such charge and allowance therefor shall be no more
than is just and reasonable, and gives the commission power to determine what
is such just and reasonable charge. ^^ The compensation contemplated by this
section for the use of facilities furnished by the shipper is not necessarily un-
lawful Ijecause it works a disadvantage to other shippers of the same com-
modity who do not own such facilities or who can not use them to advantage.
In short, the law does not attempt to equalize fortune, opportunities or abilities. ^^
On the other hand, the facility for the use of which compensation is made must
be one which the carrier uses in interstate commerce. It is not lawful to make
compensation or allowance to the shipi)er for facilities used merely for the pur-
pose of bringing his products from his factory or mine out to the carrier's road
where they may be taken up and started on their interstate journey .^^

Discrimination between Shippers. — Neither the carriers nor the commis-
sion can enforce an arljitrary rule which would authorize the payment of one
shipper for transportation service and deprive another of compensation for
similar service. To receive the benefit of such work by one elevator without
making comnensation therefor would, in efifect, be the involuntary payment by
such elevator of a rebate to the railroad company, for it would enable the rail-
road to receive more net freight on its grain than was received from its com-
petitor located on the railroad's tracks. This can not be directly done, nor in-
directly by means of regulation. A rule apparently fair on its face and rea-
sonable in its terms may, in fact, be unfair and unreasonable if it operates so
as to give one an advantage of which another, similarly situated, can not avail
himself. ^^

29. Act June 18, 1910, ch. 309, § 12, 36
Stat, at L. 553.

30. Penn Refin. Co. v. Western, etc., R.
Co., 208 U. S. 208, 52 L. Ed. 456, 28 S.
Ct. 268; Chicago, etc., R. Co. v. United
States, 156 Fed. 558, 84 C. C. A. 324, 26
L. R. A., N. S., 551, affirmed in 212 U.
S. 563, 53 L. Ed. 653, 29 S. Ct. 689; In-
terstate Commerce Comm. v. Dififenbaugh,
222 U. S. 42, 56 L. Ed. 83, 32 S. Ct. 22;
Union Pac. R. Co. v. Updike Grain Co.,
222 U. S. 215, 56 L. Ed. 171, 32 S. Ct. 39;
United States v. Baltimore, etc., R. Co.,
231 U. S. 274, 34 S. Ct. 75.

31. Interstate Commerce Comm. v. Dif-
fenbaugh, 222 U. S. 42, 56 L. Ed. 83, 32
S. Ct. 22; Penn Refin. Co. v. Western,
etc., R. Co., 208 U. S. 208, 52 L. Ed. 456,
28 S. Ct. 268.

Carriers can not be charged with dis-
criminating against shippers of oil in bar-
rels from the Pennsylvania oil fields to
Perth Amboy, New Jersey, because they
charge for the barrel package without
making a corresponding charge upon ship-
ments in tank cars owned by those ship-
pers who can afford to build and furnish
them, the carriers having none of their
own, where the transportation by tank
cars is more remunerative to the carriers
than the transportation by barrels, and the
barrel shippers have made no demand for

4 Car— 40

tank cars, and can not use them economic-
ally for shipments to Perth Amboy on
account of the lack of facilities for un-
loading at that point. Judgment, West-
ern New York, etc., R. Co. v. Penn Refin.
Co., 137 Fed. 343, 70 C. C. A. 23, affirmed
i'n 208 U. S. 208, 52 L. Ed. 456, 28 S. Ct.

32. Private tracks built by the owner of
a packing plant on its own property, ex-

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 118 of 214)