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power of a court of chancery to interfere, if there be such a discrimination. None of them hold that, in the absence of statutory direction or a specific contract, a company having the power to locate its own stopping places can be required by court of equity to stop at another railroad junction and interchange business, or that it must under all circumstances give one connecting road the same facilities and the same rates that it does to another with which it has entered into a special contract relations for a continuous through line and arrange facilities accordingly. These cases are all illustrative in their analogies, but their facts are different from those we have now to consider."

The decree of the Circuit Court was reversed, with instructions to dismiss the bill without prejudice. This case was decided in 1883, and clearly points out the evils sought to be remedied by this section of the original Act to Regulate Commerce. In Wisconsin, M. & P. R. Co. v. Jacobson,78 the Supreme Court had before it a case from the Supreme Court of Minnesota to review the judgment of that court affirming the judgment of the District Court, directing the plaintiff in error and the Willmar & Sioux Falls Railway Company to make track connections with each other at Hanley Falls, in the state of Minnesota, where their respective tracks intersected.

The judgment of the state court declared as follows:

"That it is the duty of the defendants, the Wisconsin, Minnesota & Pacific Railroad Company and the Willmar & Sioux Falls Railway Company, and they should be and are required to forthwith provide at the place of intersection of their said roads at said Hanley Falls, ample facilities by track connections for transferring any and all cars used in the regular business of their respective lines of road from the line of tracks of one of said companies to those of the other, and to forthwith provide, at said place of intersection, equal and reasonable facilities for the interchange of cars and traffic between their respective lines, and for the receiving, forwarding, and delivering property and cars to and from their respective lines."

78 Wisconsin M. & P. R. Co. v. Jacobson, 179 U. S. 287, 45 L. Ed. 194, 21 Sup. Ct. 115.

The court discussed somewhat at length the legal principle that railroads are public highways, upon which fact rests the right and duty of the government to regulate, in a reasonable and proper manner, the conduct of their business, and the substance of its opinion affirming that of the state Supreme Court is contained in two paragraphs of the opinion, as follows:

"We think this case is a reasonable exercise of the power of regulation in favor of the interests and for the accommodation of the public, and that it does not, regard being had to the facts, unduly, unfairly, or improperly affect the pecuniary rights or interests of the plaintiff in error.

"In this case the provision is a manifestly reasonable one, tending directly to the accommodation of the public, and in a manner not substantially or unreasonably detrimental to the ultimate interests of the corporation itself.”

§ 158. Same Subject Statute. The second paragraph of Section 3 of the Interstate Commerce Act,79 as originally enacted, required common carriers subject to the Act to afford reasonable, proper and equal facilities for the interchange of traffic and prohibited discrimination in the rates and charges of connecting lines, but did not require them to give the use of their tracks or terminal facilities to another carrier engaged in like business. This provision of the law did not apply where the circumstances and conditions were dissimilar.80 As to its tracks and terminal facilities, a common carrier was, under the former law, left free to allow their use by one or more connecting lines to the exclusion of others;81 but, as will be seen in a subsequent section, this right of selection has been limited by subsequent enactments and decisions. This section did not compel a carrier to establish through

79 Sec. 430, post.

80 Kentucky & I. Bridge Co. v. Louisville & N. R. Co., 37 Fed. 567, 624, 2 L. R. A. 289, 2 I. C. R. 351; New York & N. Ry. Co. v. New York & N. E. Ry. Co., 50 Fed. 867.

81 Little Rock & M. Ry. Co. v. St. Louis, I. M. & S. Ry. Co., 59 Fed. 400; affirmed, 63 Fed. 775, 11 C. C. A. 417,

26 L. R. A. 192; Oregon S. L. & U.
N. Co. v. Northern Pac. R. Co., 51
Fed. 465; affirmed, 61 Fed. 158, 9 C.
C. A. 409; Atchison, T. & S. F. Ry.
Co. v. Denver & N. O. R. Co., 110 U.
S. 667, 28 L. Ed. 291, 4 Sup. Ct. 185;
Gulf, C. & S. F. Ry. Co. v. Miami S.
S. Co., 86 Fed. 407, 30 C. C. A. 142.

routes and joint rates, and any carrier could select from two or more connecting carriers those whom it would employ as its agents to send freight beyond its own line.82 This power to require the establishment of through routes and joint rates has been given to the Commission by Sections 1 and 15 of the Act as amended by the Act of June 29, 1906. The owner of a private wharf, however, cannot be compelled, except by condemnation and upon compensation being made for the taking of the property, to allow its use by others.83

Since the Amendment of 1906, it has been the duty of each carrier subject to the Interstate Commerce Act to "hold itself impartial as between shippers and give to each one equal terminal facilities and service."84 It is not illegal for a carrier to give an exclusive privilege to a public auctioneer to conduct auctions.8 85

§ 159. Same Subject-Statute and Proviso.-Section 3 of the Act to Regulate Commerce, prior to Transportation Act, 1920, provided:

"But this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business."

In discussing this proviso, the Commission held, that where

82 Kentucky & I. Bridge Co. v. Louisville & N. R. Co., 37 Fed. 567, 630; Prescott & A. C. R. Co. v. Atchison, T. & S. F. R. Co., 73 Fed. 438.

83 Louisville & N. R. Co. v. West Coast Naval Stores Co., 198 U. S. 483, 49 L. Ed. 1135, 25 Sup. Ct. 745; Weems Steamboat Co. v. People's Co., 214 U. S. 345, 53 L. Ed. 1024, 29 Sup. Ct. 661.

84 Enterprise Fuel Co. v. Pennsylvania R. Co., 16 I. C. C. 219, 224; Baltimore Butchers Abattoir & Live Stock Co. v. Philadelphia, B. & W. R. Co., 20 I. C. C. 124, 128; Buffalo Union Furnace Co. v. Lake Shore & M. S. Ry. Co., 21 I. C. C. 620.

85 Southwestern Produce Distributors v. Wabash R. Co., 20 I. C. C. 458. As a general rule, carriers may

restrict the use of their premises for the transaction of private business, and they may grant exclusive privileges to taxicab and transfer companies for the use of station grounds in the solicitation of business. Fluker v. Georgia R., etc., Co., 81 Ga. 461, 8 S. E. 529, 2 L. R. A. 843; Johnson v. Chicago, etc., R. Co., 51 Iowa 25, 50 N. W. 543; Terminal Taxicab Co. v. Kutz, 241 U. S. 252, 60 L. Ed. 984, 36 Sup. Ct. 583; Kates v. Atlanta Baggage, etc., Co., 107 Ga. 636, 34 S. E. 372; D., L. & W. Ry. Co. v. Morristown, 276 U. S. 182, 72 L. Ed. 523, 48 Sup. Ct. 276; Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518, 72 L. Ed. 681, 48 Sup. Ct. 404.

carriers allowed the "use of their tracks, or terminal facilities, the proviso of section 3 can have no application;" and, in the further course of the opinion in the same case, it was said:

"Terminals are either open or they are not; and if a carrier holds itself out as ready to permit the use of its tracks at a certain charge, the fact that such charge may be prohibitive does not mean that the terminals are not open. On the contrary, it would seem to be a potent argument for the reduction of charges for the use of tracks or terminal facilities already extended."

And, said the Commission, concluding the argument:

"It follows, that having elected to perform this service, the charge therefor must be reasonable.''86

This section up to this point and the next two preceding sections discuss the law prior to the Amendment of 1920. By that Amendment, paragraph (2) of Section 3 of the original Act was changed for the first time. The Amendment authorizes the Commission to do what the Supreme Court in the Nashville Switching Case, 242 U. S. 60, held that it could not do under the law then in force.87

§ 160. Through Routes and Joint Rates.-The statutory duty of the carriers to establish and maintain through routes and joint rates, together with the statutory power of the Commission in respect thereto, will be discussed in another connection.88 The question of discrimination is the subject of this section.

Mr. Commissioner Lane, in an opinion of the Commission dealing with the question, asked: "What is the duty of the carriers with respect to the operation of through routes?" And he also asks: "What power has been vested in the Com

86 Merchants & Mnfrs. Assn. V. Pennsylvania R. Co., 23 I. C. C. 474, 476. The principle was followed in St. Louis S. & P. R. Co. v. Peoria & P. U. R. Co., 26 I. C. C. 226, 236, 237; Penn. Co. v. United States, 236 U. S. 351, 59 L. Ed. 616, 35 Sup. Ct. Rep. 370; affirming same-styled case, 214 Fed. 445; Louisville & N. R. Co. v. United States, 238 U. S. 1, 59 L. Ed.

1177, 35 Sup. Ct. 696-"Grazing but not hitting," so says Mr. Justice Holmes, the question in Louisville & N. R. Co. v. United States, 242 U. S. 60, 61 L. Ed. 152, 37 Sup. Ct. 61.

87 For amendment, see Sec. 430, post. Compare St. Louis S. W. R. Co. v. United States, 245 U. S. 136, 62 L. Ed. 199, 38 Sup. Ct. 49.

88 Post, Sec. 241.

mission to enforce the requirements of the law?" Answering the first question, he said:

"There can be little doubt as to the duty of the carriers under the present act. The commerce of the country is regarded as national, not local, and the railroads are required to serve the routes which they have established, or which they have been required to establish." The statute is then quoted, and analyzed and in further answer to the first question, the opinion proceeds: "Reading these provisions together, there can be no doubt as to the intent of Congress. Our railroads are called upon to unite themselves that they will constitute one national system; they must establish through routes, keep these routes open and in operation, furnish the necessary facilities for transportation, make reasonable and proper rules of practice as between themselves and the shippers, and as between each other. The full burden of this great obligation is in the first instance cast upon the carriers themselves."

As to the second question, it was there said:

"The law's requirements as to the duty of the carrier to the shipper to furnish equipment and maintain its through routes carries with it necessarily the power on the part of the Commission to enforce rules which will permit the free interchange of traffic as between carriers. The carriers must keep their through routes open, and if they fail to do this because of the diversion or appropriation of cars this Commission has it within its power to prescribe the conditions upon which such through routes shall be operated.''89

The duty exists to maintain through routes without undue discrimination and, should the carriers fail in the performance of that duty, the Commission has power to enforce it.90

89 Missouri & Illinois Coal Co. v. Illinois C. R. Co., 22 I. C. C. 39, 44, 45, 46, 49.

90 Re Coal Rates on Stony Fork Branch, 26 I. C. C. 168; St. Louis, S. & P. R. Co. v. Peoria & P. U. Ry. Co., 26 I. C. C. 226; Ala., Tenn. & Northern R. R. Corp. v. So. Ry. Co., 148 I.

C. C. 708; Stickell & Sons v. West. M. Ry. Co., 153 I. C. C. 759. For meaning of statutory restrictions on Commission's authority to establish through routes, see U. S. v. M. P. R. R. Co., 278 U. S. 269, 73 L. Ed. 322, 49 Sup. Ct. 133.

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