coal from Norwood to Montpelier at 90 cents a ton for "railroad supply" the same service is performed and the circumstances and conditions of carriage are the same in every material effect as in transporting coal at $1.85 per ton for complainant and other consignees. This appears to be conceded since no proof was offered that the fact is otherwise. It follows, as we think, that the difference in rates is a violation of the statute.-Wight v. United States, 167 U. S. 512, 42 L. Ed. 258, 17 Sup. Ct. Rep. 822; Interstate Commerce Commission v. Alabama Midland R. Co., 168 U. S. 144, 166, 42 L. Ed. 414, 423, 18 Sup. Ct. Rep. 45.

"In the former case it was held that the phrase 'under substantially similar circumstances and conditions,' as said in the second section, refers to the matter of carriage, and the decision therein rendered, as explained and confirmed in the subsequent case, condemns as unlawful the discriminating charges here considered. It is not permissible under this section for two or more carriers to establish a joint through rate, less than the sum of their locals, which is available only to a particular shipper or class of shippers, while denying such lower rate to other shippers of like traffic between the same points of origin and destination. In such case it may be said that the law presumes a common injury to those compelled to pay the higher rate because of the concession to the interest favored. If those defendants obtain only reasonable returns from their entire coal traffic, it may be well claimed that the rates charged complainant and other Montpelier consumers are higher than they would be but for the much lower rates allowed on coal for "railroad supply."

"Moreover, if this view is correct, the absence of actual prejudice to complainant would not excuse the defendants. The most salutary law may doubtless be disregarded in some cases without injury and inflict a degree of hardship in other cases by its enforcement. Whatever may be said in that regard in the present instance, we are convinced, upon the authority of the decisions above cited, that the regulating statute does not permit the discrimination shown in this case and our ruling must so declare."

The discrimination meant by the Act is everything that may

affect the shipper, for, says the Commission: "That one shipper may not enjoy at the hands of a carrier advantages that are denied to other shippers is a principle asserted in the Act throughout its various provisions," or, as subsequently stated by the Commission: "The fundamental principle of this Act, (the Act to Regulate Commerce), as so often stated by the Supreme Court, is one of fair play."30

§ 144. Same Subject.-Independent Contributing Causes. -The shipper's situation and the relation of total rates inbound and outbound, and not merely the rates involved, to similar rates paid by a competitor are facts which may have a bearing when considering the question of unjust discrimination. The claim of one community that it is subjected to an unlawful disadvantage in rates therefrom to the advantage of a competing community is frequently sought to be met by proof that the complaining community enjoys lower rates thereto than the inbound rates of the competing community. In the language of traffic experts, the total of the "in and out" rates shows equality. Obviously, that "in" rates may be low does not justify unlawful "out" rates. This situation was illustrated in the several hearings and opinions which involved the claim of Shreveport, La., that her rates outbound into Texas were unlawful when contrasted with intrastate rates outbound from Texas points. In one of the opinions, the Commission said:31 "We are dealing here with outbound rates, and the reasonableness of such rates does not in any wise depend upon whether the articles taking those rates

29 Brook-Rauch Mill & Elevator Co. v. Missouri Pac. Ry. Co., 17 I. C. C. 158, 164, citing Eichenberg V. Southern Pac. Co., 14 I. C. C. 250, which latter case was approved by the Supreme Court in Southern Pac. Terminal Co. v. Int. Com. Com., 219 I. S. 498, 55 L. Ed. 310, 31 Sup. Ct. 279.

30 Mobile Chamber of Commerce v. Mobile & O. R. Co., 23 I. C. C. 417, See Kaufman Commercial Club v. T. N. O. R. Co., 31 I. C. C. 167,

426.

171, where it was said: "A just equality of opportunity for shipper and locality is required by law." A useful note and a valuable general discussion of the subject appears in the Law Edition containing the case of Manufacturers Ry. Co. V. United States, 246 U. S. 457, 62 L. Ed. 831, 39 Sup. Ct. 383.

31 Railroad Com. of La. v. Arkansas H. T. Ry. Co., 41 I. C. C. 83, 118, 119; Hutcheson Traffic Bureau v. C. F. I. & P. Ry. Co., 43 I. C. C. 689, 693.

were produced at the points of shipment or came to those points by wagon, boat, railroad, or otherwise."

This language of the Commission states a correct principle, but the application of the principle must be limited to facts similar to those involved in the particular opinion. When the inbound and outbound rates constitute, in substance, a through rate, as where the carriers serving both communities are wholly or partly responsible for both inbound and outbound rates to both communities, a different question is presented. In such cases, the unlawfulness of the discrimination can only be determined by a comprehensive consideration of both sets of inbound and outbound rates.32 Then, too, a situation may be presented where a manufacturer in one community or section is complaining of outbound rates accorded to a competitor in another community or section. In such case, the effect of a discrimination may be partly or wholly offset by an advantage in inbound rates on raw materials.

§ 145. Same Subject-Allowances to Shippers.-Under the Amendment of June 29, 1906, to the Act to Regulate Commerce, the owner of property transported rendering services in connection with the transportation or furnishing of an instrumentality used therein is entitled to charge therefor.33 Such charge must be stated in the published tariffs, and must not violate any of the sections of the Act requiring reasonable and non-discriminatory rates. Whatever allowances are made, being published in a tariff, they are subject to complaint to the Commission and may be investigated by the Commission on its own initiative, and that tribunal may

32 St. Louis S. W. Ry. Co. V. United States, 245 U. S. 136, 62 L. Ed. 199, 38 Sup. Ct. 49; Pardee Works v. Central R. R. Co. of N. J., 39 I. C. C. 162, 164.

33 For statute, see Sec. 500, post. 34 American Sugar Refining Co. v. Delaware, L. & W. Ry. Co., 200 Fed. 652. While there have been rulings on the subject of this case not in accord with the general opinion on this

point, the decision is correct. See Re Allowances for Transfer of Sugar, 14 I. C. C. 619; Federal Sugar Refining Co. v. Baltimore & O. R. Co., 20 I. C. C. 200; Baltimore & O. R. Co. v. United States, 200 Fed. 779, Opinion Commerce Court No. 38, p. 499; United States v. B. & O. R. Co., 231 U. S. 274, 58 L. Ed. 218, 34 Sup. Ct. 75; Langdon v. Pennsylvania R. Co., 194 Fed. 486, 496.

determine what allowance is legal and reasonable.35 Whether or not the amount allowed is reasonable must, like all charges relating to transportation, be determined by the facts and circumstances in each particular case, having in view all relevant principles applicable to questions relating to the determination of the reasonableness and validity of rates. It is equally true that whether or not a particular allowance unjustly discriminates against other shippers presents a question determinable from the particular facts applicable to the special case. The Commission may not, when the shipper is within the provisions of the statute, deny to him a proper allowance.

The shipper who owns instrumentalities used in transportation or who is in a position to render services in connection therewith, who receives compensation for his services or pay for the use of his instrumentalities, cannot be said to be unfairly favored so long as the allowance or pay is not unreasonable and so long as others rendering like services or furnishing like instrumentalities are treated in the same way. Examples of allowances are-for compressing cotton, supplying grain doors, elevation of grain,38 staking cars, lighterage, transportation by tap lines and industrial lines.41 The question will be treated more in detail in later sections of this chapter wherein is discussed the question of whether or not the specific service or instrumentality upon which the claim for allowance is based justifies any allowance.

40

37

35 Suffern Grain Co. V. Illinois Cent. R. Co., 22 I. C. C. 178, 183; Union Pac. R. Co. v. Updike Grain Co., 222 U. S. 215, 218, 56 L. Ed. 171, 32 Sup. Ct. 39.

36 Merchants Cotton Compress & Storage Co. v. Illinois Cent. R. Co., 17 I. C. C. 98; Anderson, Clayton & Co. v. Chicago, R. I. & P. Ry. Co., 18 I. C. C. 340.

37 Balfour, Guthrie & Co. v. Oregon W. R. & N. Co., 21 I. C. C. 539.

38 Union Pac. R. Co. v. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171, 32 Sup. Ct. 39; Traffic Bureau

39

Merchants Exchange v. Chicago, B. &
Q. R. Co., 22 I. C. C. 496.

39 Duluth Log Co. v. Minnesota & J. R. Co., 15 I. C. C. 627.

40 United States v. B. & O. R. Co., Federal Sugar Refining Co. Case, 231 U. S. 274, 58 L. Ed. 218, 34 Sup. Ct. 75. See also Lighterage and Storage Regulations at New York, 35 I. C. C. 47.

41 Louisiana & P. Ry. Co. v. United States, 209 Fed. 244; Tap Line Cases, 234 U. S. 1, 58 L. Ed. 1185, 34 Sup. Ct. 741; Industrial Railways Case, 29 I. C. C. 212; Car Spotting Charges, 34 I. C. C. 609.

§ 146. Trap-Car Service.-The Commission has defined this service as follows:42 "The term trap or ferry, strictly speaking, is applied to a car placed at an industry or commercial house having a private siding, and there loaded by a shipper with less-than-carload shipments, and hauled by a carrier to its local freight or transfer station for handling and forwarding of contents; and also is applied to a car loaded with less-than-carload shipments which is hauled to and placed upon the private track of an industry or commercial house by the carrier from a local freight or transfer station. Where such cars are loaded to a prescribed minimum, the practice of respondent has been to make no charge for the service. In the eastern part of the territory involved the name 'ferry' is given to a car used as above described, and in the western part the name 'trap' is applied. The origin of the names is not clear. Both mean the same thing, and for convenience the word trap will be hereinafter used."

In the Five Per Cent case,43 the Commission suggested that the carriers investigate special services being rendered by them with a view to eliminating those that were discriminatory and making proper charges for those which were legal. In Conference Ruling 97, the Commission said: "The Commission condemns as unlawful a practice under which a carrier provides an empty car at factory sidings in which the shipper may load less-than-carload shipments which the carrier then moves to its regular freight station, where the shipments are assorted and placed in other cars to be forwarded to their respective destinations. Such a practice is lawful only under definite and clear tariff authority, nondiscriminatory in terms and in its application."

Ostensibly in compliance with the suggestion and the ruling of the Commission, but with a real desire that the practice be continued, tariffs were filed by the carriers in which charges were proposed for the trap-car service. In the Trap Car case, supra, these tariffs were ordered canceled. The advantages

42 Trap or Ferry Car Service Charges, 34 I. C. C. 516.

43 Five Per Cent Case, 31 I. C. C.

351, 408; Woolson Spice Co. v. P. Co., 39 I. C. C. 583, 584.