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When by reason of an unprecedented rush of business, a carrier is unable to furnish cars to all sufficient for their needs, it should furnish to all shippers what cars were available, without discrimination.— Riddle Co. v. B. & O. R. Co., 1 Inters. Com. R. 701, 1 I. C. C. R. 372; St. Louis S. W. R. Co. v. Clay Gin Co., 77 Ark. 357, 92 S. W. 531.

The ordinary duty of exercising reasonable care and diligence in furnishing cars adequate for the transportation of freight does not impose on the railroad the duty of discriminating in favor of the complaining shipper where the demands exceeded the capacity of the railroad and the anticipated or usual calls upon it.- Strough v. N. Y. C. & H. R. R. Co., 92 App. Div. (N. Y.) 584, 87 N. Y. Supp. 30; affd. 181 N. Y. 533, 73 N. E. 1133.

When by reason of a press of business, a carrier cannot accept all property tendered for transportation, it cannot therefore favor some customers and refuse the goods of others, but must act on the rule of equality. Houston & T. C. R. Co. v. Smith, 63 Tex. 322.

The rights of all shippers of live stock applying for cars under the same circumstances are necessarily equal.-Nichols v. Oregon Short L. R. Co., 24 Utah, 83, 66 Pac. 768.

[10] Preference to shipments of perishable property.

Preference in forwarding shipments of perishable property not unjust discrimination,-see ante, § 32, note [14].

Where a carrier is unable to immediately transport all property deliverable to it for carriage, it may, and it is its duty to, give preference to that which is perishable.— Tierney v. N. Y. C. & H. R. R. Co., 76 N. Y. 305, affg. ş. c. 10 Hun (N. Y.), 569.

Where more property was delivered to a railroad than it could immediately transport, it is liable for injury to perishable goods caused by delay through a failure to give such goods preference over nonperishable goods.- Tierney v. N. Y. C. & H. R. R. Co., 76 N. Y. 305, affg. s. c. 10 Hun (N. Y), 569.

[11] Method of distribution.

A rule of a railroad company provided that all orders for cars for use in the transportation of shipments of grain from warehouses must come through the warehousemen operating such houses. In cases of car-shortage the warehousemen were thus enabled to obtain cars for their own grain and by failing to order cars for the shipment of the grain of other persons which was stored in their warehouses, such warehousemen obtained a great advantage over other storers and shippers of grain.- Held, that it was the duty of the railroad to require fair treat

ment for storers of grain under this rule, or to abrogate the rule and formulate one to meet the exigencies of the occasion.-U. S. v. Oregon R. & N. Co., 159 Fed. 975.

A rule of a railroad as to distribution of cars, providing that cars for the fuel supply of that railroad, foreign railroad cars especially consigned for the fuel supply of the railroads consigning such cars, and individual cars assigned by the owners to specified mines for loading, will be charged against the capacity of the mine at which they are placed, is not an unreasonable or discriminatory regulation.- Logan Coal Co. v. Pa. R. Co., 154 Fed. 497.

Where a consumer of a commodity sends cars to receive that commodity for transportation, they are not to be included in a percentage distribution of cars of the railroad among shippers.-U. S. v. B. & 0. R. Co., 154 Fed. 108.

Under Interst. Com. Act, § 1, relative to the furnishing of cars to shippers, where there are not sufficient cars to supply all demands and distribution on a percentage basis is necessary, all the car equipment, including the private cars of shippers, must be taken into calculation, and it is inequitable to deduct the number of private cars from the total car equipment, and then make a percentage distribution of the balance.-U. S. v. B. & O. R. Co., 154 Fed. 108.

Where a railroad purchases coal from mine owners and sends its cars over the lines of another road to receive the coal for transportation, these cars are not to be taken into consideration in the distribution of the cars of the latter road on a percentage basis in cases of car shortage.-U. S. v. B. & O. R. Co., 154 Fed. 108.

When individual shippers own their own cars, it is not unreasonable that they shall have the exclusive use of the same.-U. S. v. B. & O. R. Co., 154 Fed. 108.

In a mandamus proceeding against a carrier to prevent discrimination in its distribution of cars among rival coal companies, it was admitted that the defendant owned no cars but obtained them from another railroad and alloted them to the mining districts according to a formulated rating.- Held, that the court had power to fix the percentage of cars which the carrier should furnish to the complainant's mines in proportion to their present output, there being nothing to indicate any probable change in such output.- West Va. Northern R. Co. v. U. S., 134 Fed. 198, affg. s. c. 125 Fed. 252.

In determining the distribution of coal cars, the equipment in use at the mines for handling and loading is of secondary importance, because such equipment may, and doubtless would be speedily increased, if more cars were allotted.-U. S. ex rel. Kingwood Coal Co. v. W. Va. Northern R. Co., 125 Fed. 252; affd. 134 Fed. 198.

In furnishing cars to local mines, the distribution should be based on a disinterested and intelligent examination of the different mines by experts, and upon a consideration of all the factors which go to make up the capacity of such mines, both actual and potential.-U. S. ex rel. Kingwood Coal Co. v. W. Va. Northern R. Co., 125 Fed. 252; affi. 134 Fed. 198.

A system of coal car distribution which a carrier has adopted in a given district affords no just complaint to any shipper if, under the circumstances and conditions of that particular field, it is a fair and reasonable one, and is applied to all alike.-U. S. v. Norfolk & W. R. Co., 109 Fed. 831.

That special or private cars are furnished by one shipper, does not justify discrimination in furnishing cars, and in the stress of unusual business, such special cars in its service should be applied to the accommodation of all shippers alike.-U. S. v. Norfolk & W. R. Cɔ., 109 Fed. 831.

If all shippers applying cannot be provided with desired facilities, the plan or method adopted should be the one affording the largest public accommodation with the smallest amount of individual hardship.- Palmers' Board of Trade v. Pa. R. Co., 9 Inters. Com. R. 61.

[12] Effect of agreement as to distribution.

A mere arrangement between a railroad company and its patrons, relating solely to the basis upon which an equitable and fair distribution of cars could be secured, does not relieve the railroad from the obligations as to the distribution of cars imposed by Interst. Com. Act, § 3; nor does the shipper lose the rights and remedies given by § 23 of the Act.-U. S. v. Norfolk & W. R. Co., 143 Fed. 266, revg. s. c. 138 Fed. 849.

An agreement between the shippers and a carrier in a particular field, as to what would be an equitable basis for distribution of cars therein, does not prevent one of such shippers from proceeding against said carrier to compel it to furnish such shipper an equitable proportion of the available cars.-U. S. v. Norfolk & W. R. Co., 143 Fed. 266, revg. s. c. 138 Fed. 849.

[13] Facts showing unjust discrimination.

Where it is shown that, under a rule of a railroad providing that all orders for cars for use in the transportation of shipments from warehouses must come through the warehousemen operating such warehouses, in times of car-shortage the warehousemen are able to get cars for their own shipments while they ignore the demands of storers and shippers for cars, facts are proved which show an undue discrimination in favor of the warehousemen and against such other shippers.- U. S. v. Oregon R. & N. Co., 159 Fed. 975.

The carrier neglected and refused to furnish cars to complainants when it might reasonably have done so, and at the same time furnished cars to complainant's competitors engaged in the same line of business at the same place.- Held, that this constituted an unlawful discrimination.- Gallogly v. C. H. & D. R. Co., 11 Inters. Com. R. 1.

The mere showing of a carrier's rule of car apportionment to be that regardless of the number of carloads shippers may have ready for shipment, the first car goes to the shipper who placed the first order, the second to the second order, and so on until the supply is exhausted, is not, with a bare statement that the rule works a discrimination, sufficient to establish discrimination, but the actual effect of the rule must be shown.- Richmond Elev. Co. v. Pere Marquette R. Co., 10 Inters. Com. R. 629.

Facts held to show an unjust discrimination in furnishing cars.— Richmond Elev. Co. v. Pere Marquette R. Co., 10 Inters. Com. R. 629.

Preferring, in the furnishing of cars, shippers who own spur tracks rather than those who do not but use and thereby obstruct the carrier's general lines, is not an unlawful discrimination, so long as all in the same position are treated alike.- Choctaw, O. & G. R. Co. v. State, 73 Ark. 373, 84 S. W. 502.

[14] Penalties for failure to furnish cars — Validity of statutes.

A Texas statute required that upon application in due form by a shipper, a railroad must furnish sufficient cars for his consignment, regardless of every other consideration except strikes and public calamities. In the state courts, the statute was construed to apply to applications for cars for shipments out of the state.- Held, this was an attempt to regulate interstate commerce, and beyond the police power of the state.- Houston & T. C. R. Co. v. Mayes, 201 U. S. 321, 26 Sup. Ct. R. (U. S.) 491.

A state statute imposing penalties on carriers for failure to ship freight within five days, is valid and operative as to freight to be shipped outside the state.- Bagg v. Wilmington & R. Co., 109 N. C. 279, 14 S. E. 79, 14 L. R. A. 596.

A state statute imposing a penalty on a carrier for failure to furnish cars within six days after written demand therefor by a shipper, is void as a regulation of interstate commerce.- Texas & P. R. Co. v. Allen, 17 Tex. Ct. R. 256, 98 S. W. 450.

A state statute providing for penalties for the failure of a railroad corporation to furnish cars upon demand, is valid as to intrastate commerce, although invalid as to interstate commerce.- Allen v. Tex. & P. R. Co., Tex. 101 S. W. 792.

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General rules of statutory construction,—see ante, § 1, notes [23][40].

Statute providing penalties for failure to furnish cars construed as penal,- see ante, § 1, note [35].

A statute requiring carriers to furnish cars and prescribing penalties for non-compliance, will be strictly construed, and hence does not require the furnishing of cars beyond its own line.-- Houston & T. C. R. Co. v. Buchanan, 15 Tex. Ct. R. 521, 91 S. W. 199.

A statute authorizing the recovery of a forfeiture from a railroad for its failure to furnish cars, etc., is highly penal, and he who seeks to recover must bring himself strictly within the law.-Texas & P. R. Co. v. Hughes, 14 Tex. Ct. R. 894, 91 S. W. 567.

[16]

What constitute separate offenses.

Under the North Carolina statute, a carrier refusing to transport cattle is liable to a separate penalty for each animal in the shipments refused.- Carter v. Wilmington & W. R. Co., 129 N. C. 213, 39 S. E. 327.

In an action to recover a penalty for refusal to transport cattle, recovery may be had for each head of cattle and for each day's refusal, as separate offenses.- State ex rel. Carter v. Wilmington & W. R. Co., 126 N. C. 437, 36 S. E. 14.

[17] Actions for failure to furnish cars or discrimination in so furnishing - Nature of action.

An action for failure to furnish cars requested by plaintiff, the carrier having accepted his requisition, lies in tort, not on contract.- Di Giorgio I. & S. Co. v. Pa. R. Co., 104 Md. 693, 65 Atl. 425.

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Parol agreement to furnish cars, if broken, makes carrier liable for delay, see post, note [30].

Whether statutory remedies supplant existing rights of action,- see post, § 40, note [2].

A railroad company is liable in damages if it discriminates against a particular grain elevator in the furnishing and handling of cars.Kellogg v. Sowerby, 93 App. Div. (N. Y.) 124, 87 N. Y. Supp. 413.

If those in charge of the carrier's cars, whose duty it was to assign, or give them out to be loaded with grain, through trickery or from motives of partiality or from oppression, gave them to persons by the course and usage of the company or in fact not rightfully entitled to them, and

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