[34] Whether competition justifies is question of fact. Whether railway competition should, and does, create dissimilarity of "circumstances and conditions" is a question of fact in each instance.Tileston Mill. Co. v. No. Pac. R. Co., 8 Inters. Com. R. 346, interpreting and applying Interst. Com. Commission v. Ala. Mid. R. Co., 168 U. S. 144, 18 Sup. Ct. R. (U. S.) 45, affg. s. c. 74 Fed. 715, 69 Fed. 227. [35] Unreasonable disparity not justified. Even where water competition justifies a greater charge for a lesser than a greater distance, charges for the shorter distance which are three times as great as for the longer distance show an absurd and unreasonable disparity. The lower rate must be very unremunerative, or the higher rate grossly extortionate. Particularly where it appears that the disparities operate greatly to the advantage of tank shippers of oil as compared with barrel shippers the carriers will be required to revise their rates so as to eliminate the disproportions.- Rice v. Cincinnati, W. & B. R. Co., 3 Inters. Com. R. 841, 5 I. C. C. R. 193. [36] What facts show violation of section. A railroad made an equal charge, for transportation through Detroit to Grand Rapids and to Ionia, though the latter was slightly nearer Detroit than the former.- Held, that the act of the railroad in carting the goods of shippers from the station at Grand Rapids to their places of abode or business without charge and refusing to do a like service in Ionia was not a violation of Interst. Com. Act, § 4, relating to charges for long and short hauls.- Interst. Com. Commission v. Detroit, G. H. & M. R. Co., 167 U. S. 633, 17 Sup. Ct. R. (U. S.) 986, revg. s. c. 57 Fed. 1005, affg. s. c. 74 Fed. 803. The fact that a shipper under a joint schedule of rates over connecting railroads is charged a smaller rate on through shipments over the entire length of the joint route than to intermediate points does not establish a claim that the latter rates are unjust or unreasonable.Allen v. Oregon R. & N. Co., 98 Fed. 16. The fact that the share of a joint rate taken by one company is less than its local rate for a shorter haul does not violate the long and short haul clause, nor does that section apply to a case where the short haul rate is a combination of the local rates of two connecting lines, and the lower long haul rate is a joint rate made by the two lines acting together.-U. S. v. Mellen, 53 Fed. 229, following Chicago & N. W. R. Co. v. Osborne, 52 Fed. 912, revg. s. c. 48 Fed. 49; certiorari denied, 146 U. S. 354, 13 Sup. Ct. R. (U. S.) 281. Where the rate given for the short haul is not in itself unreasonable, and the less rate for the longer haul is justified by competition, there ion of the Interstate Commerce Act.- Gardner v. So. R. rs. Com. R. 342. ion rates, as compared with other rates, do not violate n. Act, § 4, but they must not, as compared with each e that section.- Sprigg v. B. & O. R. Co., 8 Inters. Com. es for greater and lesser distances on the same line do not ong and short haul rule.- Milk Prod. P. Assn. v. D. L. & 7 Inters. Com. R. 92. cisco sugar shipped to St. Paul had to compete there with d in New York, and hence the rate on such sugar from co to St. Paul had to be very low.- Held, that this does not gher rate to Fargo than to St. Paul.- Raworth v. No. Pac. ters. Com. R. 614, 3 Inters. Com. R. 857, 5 I. C. C. R. 234. ns to recover for violaton of section - Right to recover. e sections of the statutes and constitution of Kentucky, the compensation for long and short hauls, an aggrieved recover in a civil action the excessive amount paid for n.-Hutcherson & C. v. L. & N. R. R. Co., 108 Ky. 615, 51, 57 S. W. 251. hat must be proved. against a carrier for violating the long and short haul state statute, it is not necessary to show that the rates e higher than those fixed or approved by the state comOhn v. St. L. I. M. & S. R. Co., 181 Mo. 30, 79 S. W. 961. ssential to a shipper's recovery for the exaction of a greater shorter than a longer haul that he should show that cons shipments were made at the lesser rate for the longer t only that such rates were at that time held out to the well v. K. C. Ft. S. & M. R. Co., 119 Mo. 222, 24 S. dmissibility of evidence. on for damages caused by a violation of the long and short of the Interstate Commerce Act, the fact that the rate for istance was established jointly between the defendant and ng roads is not a good defense, nor is evidence admissible state to which the longer haul extended competition had dant to cut rates, unless a ground has been laid therefor Ings.-Junod v. Ch. & N. W. R. Co., 47 Fed. 290. ion to recover for the exaction of a greater charge for a a longer haul, plaintiff may prove that before or after the time his shipment was made, the carrier did transport property for the greater distance at the lesser rates.- Seawell v. K. C. Ft. S. & M. R. Co., 119 Mo. 222, 24 S. W. 1002. In an action for damages by breach of the long and short haul section of the Interstate Commerce Act, the fact that the rate for the longer distance was established jointly between the defendant and the connecting roads is not a good defense, and the fact that the freight for the longer haul was billed to a point nearer than the destination of the shorter haul is no bar, when such freight was intended to be, and was actually, taken to the destination of the shorter haul.- Junod v. Ch. & N. W. R. Co., 47 Fed. 290. In an action to recover for a greater charge for a shorter than a longer haul, the measure of damages is the difference between the two charges.- Seawell v. K. C. Ft. S. & M. R. Co., 119 Mo. 222, 24 S. W. 1002; Junod v. Ch. & N. W. R. Co., 47 Fed. 290. The jury may add interest to the amount of damages, such interest to be computed from the date of the last shipment.-Junod v. Ch. & N. W. R. Co., 47 Fed. 290. [42] Criminal prosecutions - Necessity for action by commission. A finding and recommendation by the state railroad commission is necessary to the finding of an indictment by a grand jury under the long and short haul statute.-Illinois Cont. R. Co. v. Commonwealth, 23 Ky. L. R. 1159, 64 S. W. 975. Under the statutes of Kentucky, a carrier cannot be indicted for a violation of the long and short haul clause of its act regulating carriers in advance of action by the railroad commission.-Illinois Cent. R. Co. v. Commonwealth, 23 Ky. L. Rep. 1159, 64 S. W. 975. A request or finding by the state railroad commission is not necessary to the finding of an indictment by a grand jury, under the long and short haul statute.- Illinois Cent. R. Co. v. Commonwealth, 23 Ky. L. R. 544, 63 S. W. 448. A agent of a railroad cannot be indicted for a violation of Interst. Com. Act, § 4, where it appears that he merely collected and received the rates and had nothing to do with the making thereof.-U. S. v. Mellen, 53 Fed. 229. An indictment for violation of Interst. Com. Act, § 4, which alleges merely that the charge for a joint through haul is less than a charge for a shorter local haul included within the former, is bad.-U. S. v. Mellen, 53 Fed. 229. An indictment which alleges that a greater rate was charged for transportation from Pittsburg to Lebanon than was charged "from Pittsburg to Louisville and to Elizabethtown," embraces only one offense. -Louisville & N. R. Co. v. Commonwealth, 104 Ky. 226, 20 Ky. L. R. 1380, 46 S. W. 707, 43 L. R. A. 541. An indictment under the long and short haul statute of Kentucky need not state the precise amount received for the longer distance, nor need it designate any particular person or persons other than the complainant, who had been required to pay the greater compensation, but it is sufficient to state in the indictment that the specified amount charged for the shorter distance was greater than that charged or received from persons generally for the longer distance.— Louisville & N. R. Co. v. Commonwealth, 104 Ky. 226, 20 Ky. L. R. 1380, 46 S. W. 707, 43 L. R. A. 541. On a trial under an indictment for violation of the long and short haul section of the Kentucky law, all testimony offered as to competition and other facts in justification, were properly excluded.Louisville & N. R. Co. v. Commonwealth, 104 Ky. 226, 20 Ky. L. R. 1380, 46 S. W. 707, 43 L. R. A. 541; Louisville & N. R. Co. v. Commonwealth, 106 Ky. 633, 21 Ky. L. R. 232, 51 S. W. 164, 1012. § 37. Distribution of cars; *[duty of carriers to furnish sufficient and suitable cars; power of commissions to regulate switching, loading, demurrage, etc.].-1. Every railroad corporation or other common carrier engaged in the transportation of freight shall, upon reasonable notice, furnish to all persons and corporations who may apply therefor, and offer freight for transportation, sufficient and suitable cars for the transportation of such freight in car-load lots. Every railroad corporation and street railroad corporation shall have sufficient cars and motive power to meet all requirements for the transportation of passengers and property which may reasonably be anticipated, unless relieved therefrom by order of the commission. In case, at any particular time, a common carrier has not sufficient • Words in brackets are not a part of section heading as enacted.-Ed. cars to meet all requirements for the transportation of property in car-load lots, all cars available to it for such purposes shall be distributed among the several applicants therefor, without discrimination between shippers, localities or competitive or non-competitive points, but preference may always be given in the supply of cars for shipment of livestock or perishable property. 2. The commission shall have power to make, and by order shall make, reasonable regulations for the furnishing and distribution of freight cars to shippers, for the switching of the same, for the loading and unloading thereof, for demurrage charges in respect thereto, and for the weighing of cars and freight offered for shipment or transported by any common carrier. Mandamus to compel furnishing of cars for interstate traffic,- see Interst. Com. Act, § 23, post, Appendix B. Duty of carriers to furnish safe and adequate facilities, in general,see ante, § 26. Duty of carrier to install switch and sidetrack connections,- see ante, § 27. False reports of weights forbidden,- see ante, § 34. Liability of carrier for loss or damage by delay in transit,- see post, § 38. Power of Commission to make reasonable regulations as to service, etc., in general,-see post, § 49. Power of Commission to compel furnishing of safe and adequate facilities,- see post, §§ 49, 50. Power of Commission to order repairs or changes in switches or terminal facilities,- see post, § 50. Power of Commission to order the running of additional cars and trains, see post, § 51. General power of the state to regulate property devoted to public,see ante, § 1, notes [1]-[22]. Purpose of regulative acts,- see ante, § 1, note [32]. Exemptions from public control,- see ante, § 1, notes [16]-[21]. Whether statutes requiring the furnishing of cars on application are an attempt to regulate interstate commerce,- see ante, § 25, note [15]. |