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ceive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, for a shorter than for a longer distance over the same line or route in the same direction, the shorter being included within the longer distance, or to charge any greater compensation as a through route than the aggregate of the local rates; but this shall not be construed as authorizing any common carrier within the terms of this Act to charge or receive as great compensation for a shorter as for a longer distance:

"Provided, however, That the Interstate Commerce Commission may, from its knowledge, or from information, or upon application, ascertain that the circumstances and conditions of the longer haul are dissimilar to the circumstances and conditions of the shorter haul, whether they result from competition by water or rail; then it may authorize a common carrier to charge less for the longer than for the shorter distance for the transportation of passengers or property; but in no event shall the authority be granted unless the commission is satisfied that all the rates involved are just and reasonable and not unjustly discriminatory nor unduly preferential or prejudical.

"That no rates or charges lawfully existing at the time of the passage of this amendatory Act shall be required to be changed by reason of the provisions of this section prior to the expiration of six months after the passage of this Act, nor in any case where application shall have been filed before the commission, in accordance with the provisions of this section, until a determination of such application by the commission;

"Provided that such determination is made within one year after the passage of this Act; Provided,

further, That if more than one year, in the opinion of the Interstate Commerce Commission is needed to consider the questions and make such determination of them, the Interstate. Commerce Commission may extend the time beyond one year; Provided, further, That when application is made to the said commission by a carrier to fix a lower rate for longer than for shorter distances on account of water competition, said application shall not be granted if the commission, after investigation, shall find that the lower rate asked for will destroy water competition.'

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House Bill: "Sec. 8. That section four of said Act to regulate commerce be amended so as to read as follows:

"Sec. 4. That it shall be unlawful for any common carrier subject to the provision of this Act to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of like kind of property, for a shorter than for a longer distance over the same line or route in the same direction, the shorter being included within the longer distance, or to charge any greater compensation as a through route than the aggregate of the local rates; but this shall not be construed as authorizing any common carrier within the terms of this Act to charge or receive as great compensation for a shorter as for a longer distance;

"Provided, however, that upon application to the Interstate Commerce Commission such common carrier may in special cases, after investigation, be authorized by the commission to charge less for longer than for shorter distances for the transportation of passengers or property; and the commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this

gress had in mind, when the Senate and House bills were combined and both changed, that relief could be granted only from the long-and-short-haul clause, which clause as theretofore construed meant practically nothing, and that the words authorizing relief "from the operation of this section" meant that "section" was limited by the words "be authorized to charge less for longer than for shorter distances.''663 The Transportation Act, 1920, supports this view, because, in specifying the principles under which relief may be granted, only principles applicable to the long-and-shorthaul clause are named. However this may be, the Commis

section; Provided, further, That no rates or charges lawfully existing at the time of the passage of this amendatory Act shall be required to be changed by reason of the provisions of this section prior to the expiration of six months after the passage of this Act, nor in any case where application shall have been filed before the commission, in accordance with the provision of this section, until a determination of such application by the commission.'''

The Committee of the House, in reporting the original bill, said: "Section 6b proposes an amendment to section 4 of the interstate commerce act in relation to charges for long and short hauls. The existing law provides that the carrier shall not charge greater compensation 'under substantially similar circumstances and conditions' for a shorter than for a longer distance over the same line in the same direction, but authorizes the commission in special cases to relieve the carrier from the operation of this provision. The courts have so construed the meaning of the words 'under substantially similar circumstances and conditions' as to practically deprive section 4 of the existing law of real vitality. In the substitute recommended by your committee, sec

tion 4 of the existing law is amended so as to leave out the words 'under substantially similar circumstances and conditions' and to prohibit a carrier from receiving greater compensation for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance, or to receive a greater compensation as a through route than the aggregate of the local rates, but authorizing the Interstate Commerce Commission to relieve a carrier upon application from the operation of this section; and in order not to unduly disturb existing conditions in an abrupt manner the amendment further provides that no rates or charges lawfully existing at the time of the passage of the proposed act shall be required to be changed by reason of this section prior to the expiration of six months after passage of the act, nor until any application made with the commission shall have been determined."

663 The English Railway and Traffic Act of 1888, section 27, gave the Commissioners power to direct that no greater charge should be made for a shorter than a longer haul when the circumstances demanded such direction, Halsbury's Laws of England, vol. 4, p. 81.

sion has applied the principle that through rates must not exceed the sum of the locals, although implying that there might be conditions justifying a departure from the general rule, and has recognized an application for relief as protecting the carriers against this provision.664 Local rates that are not "subject to the provisions of" the Interstate Commerce Act are not necessarily a proper measure of the through rate. The Commission does, and properly should, give consideration to rates fixed by state commissions, but, were it bound by such rates, the exclusive power of Congress over interstate commerce would be made subordinate to the action of the states.665 In discussing this question, the Commission has said:

"While state rates are valuable for comparative purposes in fixing a reasonable charge for a transportation service, the assumption of complainant that the action of the defendant in this case in maintaining higher transportation rates on interstate than intrastate traffic amounts to unlawful discrimination on the part of the carrier is not sound for upon the record it is shown that the condition is one over which the carrier has no control."666

§ 126. Through Routes and Joint Rates. If only the rates on the lines of each carrier considered separately were subject to the regulation of the Commission, it would be very difficult to obtain reasonable rates on those commodities which move over two or more lines. For this reason, carriers subject to the Act are required to establish through routes and joint rates. Joint rates must be reasonable and the principles relating to rates generally apply as well to these rates. Of the right of shippers to through routes and joint rates, Mr. Commissioner Clements says: 667

664 Arabol Mfg. Co. V. South Brooklyn Ry. Co., 25 I. C. C. 429, 430; Commercial Club of Duluth v. Baltimore & O. R. Co., 27 I. C. C. 639, 660; Patterson v. L. & N. R. R. Co., 269 U. S. 1, 70 L. Ed. 131, 46 Sup. Ct. 8. 665 Cobb v. Northern Pac. Ry. Co., 20 I. C. C. 100, 102; Pulp & Paper Mfrs. Traffic Assn. v. Chicago, M. & St. P. Ry. Co., 27 I. C. C. 83, 96; Corp.

Com. of Okla. v. A. T. & S. F. Ry. Co., 31 I. C. C. 432, Rates on Beer and Other Malt Products, 31 I. C. C. 544; Rates on Live Poultry in Western Trunk Line Territory, 32 I. C. C. 380.

666 Baxter & Co. v. Georgia, S. & F. Ry. Co., 21 I. C. C. 647, 648.

667 Loup Creek Colliery Co. v. Virginia Ry. Co., 12 I. C. C. 471, 477.

"The law does not require the commission in all cases where no through routes and joint rates exist to establish them, but only empowers it to do so in proper cases with the manifest intent of giving effect to the general purposes of the act to regulate commerce by securing reasonable facilities to the public and preventing unreasonable and unjust rates, practices, and discriminations, and in the exercise of this authority the commission is bound by the same considerations of justice and fairness as it is in the exercise of the rate-making power in other respects. Where neither the interest of the public, nor the ends of justice as between parties directly interested, will be promoted by the establishment of through routes and joint rates and divisions thereof, a proper case for the exercise of the authority invoked has not been shown."

In discussing an order for a through route made by the Commission prior to the Amendments of 1910 and 1912, the Supreme Court, construing the statute, said:

"We are of the opinion that the Commission had no power to make the order, if a reasonable and satisfactory through route already existed, and that the existence of such a route may be inquired into by the courts."668

§ 127. Same Subject-Amendments of 1910 and 1912.— Section 1 of the Act to Regulate Commerce, as amended by the Acts of 1906 and of 1920, makes it the duty of carriers "to establish through routes and just and reasonable rates, fares and charges applicable thereto.669

The Amendment of August 24, 1912, known as the Panama Canal Act, provided that, "When property may be or is transported from point to point in the United States by rail or water through the Panama Canal or otherwise

in addition to the jurisdiction given by the Act to Regulate Commerce" other jurisdiction is given.670 In the specified additional jurisdiction this is stated: "To establish through routes and maximum joint rates between and over such rail

668 Int. Com. Com. V. Northern Pac. Ry. Co., 216 U. S. 538, 544, 54 L. Ed. 608, 30 Sup. Ct. 417, affirming Circuit Court, Northern Pac. Ry. Co. v. Int. Com. Com. and setting aside

the order of the Commission in Re
Matter of Through Passenger Routes
via Portland, Oregon, 16 I. C. C. 300.
669 Sec. 401, post.
670 Sec. 466, post.

and water lines, and to determine all the terms and conditions under which such lines shall be operated in the handling of the traffic embraced. ''671

The Act of 1910, amended by Transportation Act, 1920, gave the Commission power, "after hearing," to "establish through routes, joint classifications, and joint rates, fares or charges" or "the minima or maxima or minima and maxima to be charged," and to "prescribe the division of such rates, fares and charges," and to prescribe the "terms and conditions under which such through routes shall be operated;' and the provision was made to apply "when one of the connecting carriers is a water line."672 There was, by Act of 1910, retained in 1920 Act, a limitation on the power by the provision that "In establishing any such through route the Commission shall not (except as provided in Section 3, and except where one of the carriers is a water line), require any carrier by railroad, without its consent, to embrace in such route substantially less than the entire length of its railroad and of any intermediate railroad operated in conjunction and under a common management or control therewith, which lies between the termini of such proposed through route, unless such inclusion of lines would make the through route unreasonably long as compared with another practicable through route which could otherwise be established. ''673

The Act of 1906, limiting the Commission's power by this language, "provided no reasonable or satisfactory through route exists," was not reenacted in Section 15 of the Act of 1910. This change in the statute makes inapplicable to the present law the decision of the Supreme Court in Interstate Commerce Commission v. Northern Pacific Railway, supra. The law as now written provides for a hearing with

671 Sec. 468, post. 672 Sec. 496, post.

673 Sec. 497, post. Downie Pole Co. v. N. P. Ry. Co., 31 I. C. C. 142; Lumber Rates from North Pacific Ccast, 30 I. C. C. 111; Wheeler Lumber, Bridge & Supply Co. v. A. T. & S. F. Ry. Co., 30 I. C. C. 343; Cement Rates from Mason City, 30 I. C. C. 426; New York Dock Ry. v.

B. & O. R. Co., 32 I. C. C. 568; St. L. I. M. & S. Ry. Co. v. U. S., 217 Fed. 80; Ogden Gateway Case, 35 I. C. C. 131. For an interpretation of the meaning of this statutory restriction on the Commission's power to order the establishment of through routes, see U. S. v. Mo. Pac. R. R. Co. (the Subiaco Case), 278 U. S. 269, 73 L. Ed. 322, 49 Sup. Ct. 133.

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