been the construction given by the supreme court to the constitution and statute of Colorado prior to the enactment of the Interstate Commerce Act (A. T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U. S. 667, 28 L. Ed. 291 (1884); and such has been the construction given to the Interstate Commerce Act in a number of cases in the circuit courts and circuit courts of appeal, cited approvingly by the supreme court in the Central Stock Yards case, supra, 192 U. S. 568, 48 L. Ed. 565 (1904). See also Little Rock & M. R. Co. v. St. Louis Iron Mountain & So. R. Co., 41 Fed. 559, and 59 Fed. 400 (1894); Oregon Short Line & Utah Northern R. Co. v. Northern Pacific R. Co., 61 Fed. 158, 9 C. C. A. 409 (1894); Allen v. Oregon Railroad & Navigation Co., 98 Fed. 16 (1899). It was held in all of these cases that through routing of passengers or freight depends upon contract voluntarily made between the carriers, and there is no power in the commission or courts to enforce the making of such a contract. Prescott & Arizona Central R. R. Co. v. A. T. & S. F. R. Co., 73 Fed. 438 (1896), wherein the court comments on apparently different ruling in N. Y. & Northern R. R. Co. v. N. Y. & N. E. R. R. Co., 50 Fed. 867 (1892). For discrimination by carrier between competing local transfer companies, see St Louis Drayage Co. v. L. & N. R. R. Co., 65 Fed. 39 (1894). The commission said that in the act to regulate commerce, congress intended to effect the same results as the English statute, but omitted the machinery necessary to accomplish it, and it was therefore recommended that the act be amended in this particular. The commission has in its annual reports recommended to congress to give the necessary authority by new legislation. For amendments of 1906 and 1910 authorizing the commission to establish through routes, see supra, § 372.

A rail carrier may make a through rate with one line of connecting steamboats, and refuse to make such rates with other steamboats. 4 I. C. C. R. 265, 3 Int. Com. Rep. 278. The words “track and terminal facilities" in this section refer to all rail carrier, or a carrier part rail and part water, but not to an independent water line.

§ 279 (212). Discrimination in exacting prepayment from connecting carriers not unjust discrimination.-It follows from the principle, that through routing is a matter of contract,

that while the carrier is obliged to receive passengers and freight from other roads at connecting points, it is not obliged to waive the requirement of prepayment, and it therefore follows that the requirement of prepayment on freight on all property received from one carrier and not exacting such prepayment from a competing carrier is not an unjust discrimination. See Little Rock & M. R. Co. v. St. Louis & Southwestern R. Co., 59 Fed. 400 (1893), and Gulf, Colorado & Santa Fe R. Co. v. Miami Steamship Co., 30 C. C. A. 142, 86 Fed. 407 (1898); Ilwaco Ry. & Navigation Co. v. Oregon Ry. & Navigation Co., 6 C. C. A. 495, 57 Fed. 673; Little Rock & M. R. R. Co. v. St. L., I. M. & So. R. R. Co., supra.

§ 280. Discrimination in exacting prepayment from shippers. In Gamble-Robinson Commission Co. v. C. & N. W. Ry. Co., 168 Fed. 161, in the circuit court of appeals of the eighth circuit, it was held, Judge Hook dissenting, that a common carrier did not violate the act by subjecting a party to unreasonable and undue preference in insisting upon his paying his freight bills in advance and refusing to give him the credit which it gave customarily to others. In the opinion of the court, the extension of credit was a favor, in effect a loan, to the shipper, which he had no right to ask, and therefore its refusal could in no way be the basis of a charge of discrimination or undue preference. On the other hand, it was strongly urged in the dissenting opinion, that the court should take notice of the general custom of the business, and that the favor extended to one shipper should be extended to all similarly circumstanced.

§ 281 (213). State control of interchange of interstate traffic. Questions have arisen out of the anomalous control of commerce by governmental authority of the states and the United States. as the same carriers are controlled by the state with reference to their intrastate traffic, and by the federal government as to interstate traffic. A belt or switching railroad is subject to the state authority when it charges local rates for its traffic and makes no interstate routing, while it becomes subject to the federal law when it joins with other carriers in making through shipments of interstate traffic. In the Louisville stockyards litigation, under the provisions of the state constitution of

Kentucky it was claimed that the defendant company was required to receive and deliver freight in the carloads to any point that was in physical connection with the tracks of another company. It was said by the United States court of appeals for the sixth circuit, 55 C. C. A. 63, 118 Fed. 113 (1902), that assuming, without deciding, that the Kentucky constitution and legislation made such requirement, that the state could not regulate interstate commerce, using the term in the sense of intercourse and interchange of traffic between the states. The power of the state to require connecting tracks between two railroad comLanies at an intersection for the transfer of cars used in the local business of such line of railroad was conceded. In the case before the court, it was not the means of making a physical connection with other railroads that was aimed at, but it was sought to compel the cars and freight received from one. state to be delivered to another at a particular place and in a particular way. If the Kentucky constitution could be given any such construction, it would follow that it could regulate interstate commerce. The judgment in this case was affirmed by the supreme court, in 192 U. S. 568. The latter court did not decide this question of the power of the state with reference to interstate traffic, as it construed the Kentucky constitution as referring only to cases where freight was destined to some further point by transportation over a connecting line. It will De seen that in this case there was no authoritative construction Of the state constitution and statute by the judiciary of the State.

At the time this suit of the Central Stockyards was filed a proceeding was also instituted before the Interstate Commerce Commission by the Railroad Commission of Kentucky, and the decision of the supreme court was followed by the commission. dismissing the complaint. 10 I. C. C. R. 173.

§ 282 (214). State and municipal control of terminals.-The last clause of the section, providing that the directing of facilities for interchange of traffic should not be construed as requiring the carrier to give use of its tracks or other terminal facilities to another carrier engaged in like business, was construed by the United States circuit court of Iowa, in State of Iowa v. Chicago, Milwaukee & St. Paul Railroad Co., 33 Fed.

391, in 1887, soon after the adoption of the act. The state of Iowa, filed a bill in the state court against the defendant carrier to enforce an order of the State Board of Railroad Commissioners requiring the defendant to pass cars of other companies over its siding in the city of Dubuque at reasonable rates fixed by the board, the sidings having been laid under the permission of the city on condition that they should be open to all. The defendant carrier moved the case to the United States court, there being no diverse citizenship, on the ground that a federal question was involved, to-wit, its right in interstate traffic under section 3 of the act. The court sustained motion to remand the case, saying that the provision in the section as to the terminal facilities simply declared that the preceding provision of the section should not be deemed to give the right to one carrier to use the tracks or terminal facilities to another carrier in like business, and had reference to the effect of the act of congress, and to nothing else saying: "If the defendant company by a contract with the city of Dubuque has bound itself to allow other companies to use part of its tracks or terminal facilities this clause of the act of congress does not affect such a contract or the enforcment thereof. So also if the state of Iowa has provided by proper statute that different companies may have a joint or common use of certain terminal facilities, the rights of the several companies to such joint use are not affected by the provisions of the Interstate Commerce Act, but the same must be determined by the statute of the state." See also Interstate Stockyards Co. v. Indianapolis U. R. Co., 99 Fed. 472 (1900), where there was a similar state and municipal regulation for the use of the terminal tracks.

§ 283 (215). The charging of local rates not an unjust discrimination. When through rates and through billing are a matter of agreement between the carriers in interstate commerce, it follows that when a carrier with whom connecting carriers decline to make through rates delivers freight, it only has the right to demand that other carriers receive from and deliver freight for transportation at their published local tariff rates. See 4 I. C. C. R. 265, 3 Int. Com. Rep. 278; 3 I. C. C. R. 450, 2 Int. Com. Rep. 721. As to the distinction between local and through rates, see supra, section 2.

It was ruled by the commission in 7 I. C. C. R. 323, that in the absence of some agreement or understanding with a connecting line by which the joint tariff rates was authorized, a given carrier cannot lawfully apply any other rates than those which is fixed by the transportation between the points fixed by its railroad; and the rates so fixed are the only lawful rates which the carrier may charge for any transportation service which it may perform. The only rates authorized by the act are the rates established by a single carrier upon its route and the joint rates over continuous lines or routes operated by more than one carrier.

But while a carrier is not bound to make through routing, and in the absence of such agreements for through routing may charge its regular tariff rates, those charges must be reasonable for the service.

In Augusta Southern Ry. Co. v. Wrightsville & T. R. Co., 74 Fed. 522, the court held that in the absence of through routing the carrier was not entitled to charge the full local rate permitted by the state law on freight which was not in reality local, but through freight. The decision in this case however cannot be reconciled with the authorities cited above unless upon the ground that the rate was unreasonable per se for the service.

§ 284. The right of exclusive through routing.—Through routing rests upon contract between the carriers except, of course, where the power of ordering a through routing is exercised by the commission under the act as amended in 1906. It follows, therefore, that a carrier may lawfully make a contract with one connecting carrier for through routing to the exclusion of another.

This subject has been extensively litigated in exclusive contracts in what are known as the Live Stock cases. While it is the duty of a railroad company to provide suitable facilities for receiving and delivering live stock at its station without additional compensation other than the regular transportation charge, it may provide these facilities by making an exclusive contract with one stockyards company, and as long as this company imposes no charge for delivering live stock when that stock is taken by the consignee within a reasonable time, such contract is not obnoxious to law. Covington v. Keith, 139 U. S.