1913, by and between the Union Stock Yard and Transit Company of Chicago and the Chicago Junction Railway Company, except as otherwise provided. The formal lease for which approval was sought by the New York Central was not actually executed until after the decision was rendered. The old lease of December 1, 1913, however, was put into the record as an exhibit in the Chicago Junction case and it included the text of the covenant hereinbefore mentioned, which was buried among many other provisions, some of which were expressed in quaint and obscure language. No party of record made an issue of this covenant or brought it before the Commission on brief or at the oral argument, and it could not have been consciously passed upon by the Commission. No reference was made to this covenant in the Commission's report or in its report on further hearing in that proceeding, 150 I. C. C. 32. It would be stretching the Commission's decision, therefore, beyond reasonable bounds to say that it approved this covenant.

The illegality of this covenant is not, as was contended on oral argument, self-corrective through the operation of the qualifying phrase "insofar as possible." The daily conduct of a common carrier's business cannot be supervised by governmental authority so as to safeguard the public interest against the observance of such a covenant, whether qualified as indicated or left entirely unqualified. Its effects may be subtle and indirect and their impact may be felt by shippers located hundreds of miles from the locale of the carrier's operations and who could not, for this reason, be expected to trace the source of their difficulties. A covenant of this character is so diametrically opposed to the public duties and obligations of a common carrier that no vestige of it should be allowed to remain. It is unlawful per se.

Since 1920 a public stockyard's right to have all ordinary livestock consigned to or moving from its yards unloaded into or loaded from suitable pens without extra charge has been specifically guaranteed by section 15 (5) of the Interstate Commerce Act. (See Atchison, T. & S. F. Ry. Co. v. United States, 295 U. S. 193.) There is, however, a significant proviso in section 15 (5) which, it seems to me, is pertinent in the situation before us. It is therein stated that "Nothing in this paragraph shall be construed to affect * *the duty of performing service as to shipments other than those to or from public stockyards." This is ample warning to carriers not to commit themselves to the service of public stockyards-as important and useful as such institutions are in the marketing of livestock-so that they cannot meet their obligations in the delivering and receiving of

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livestock at private industries; but this has apparently be done in the area where Swift now proposes to erect a packing plant.

The law with respect to the delivery of livestock at private sidetracks or to private industries was clearly stated by the Supreme Court of the United States in Covington Stock Yards Company v. Keith, 139 U. S. 128. While, as pointed out by the Supreme Court in Armour & Co. v. Alton R. Co., 312 U. S. 195, this suit was instituted before Congress adopted the Interstate Commerce Act, this decision, so far as I am advised, has never been disaffirmed or its effect changed by subsequent court decision or by amendatory statute. It was cited with approval by the Supreme Court in Atchison, T. & S. F. Ry. Co. v. United States, supra. The pertinent parts of the decision in Covington Stock Yards Company v. Keith, supra, to the issues here involved read as follows:

The transportation of livestock begins with their delivery to the carrier to be loaded upon its cars, and ends only after the stock is unloaded and delivered, or offered to be delivered, to the consignee, if to be found, at such place as admits of their being safely taken into possession.

It was not within the power of the railroad company, by such an agreement as that of November 19, 1881, or by agreement in any form, to burden the appellees with charges for services it was bound to render without any other compensation than the customary charges for transportation.

When the facts are fully understood, it seems to me that the law in this case is relatively simple. Insofar as Swift's relation to the terminal railroad is concerned, the governing law is contained in section 1 (9) of the Interstate Commerce Act. Inasmuch as Swift's track has already been connected and is proposed to be operated in the handling of cars containing other kinds of freight than livestock, it seems conclusive that all the conditions set forth in section 1 (9) have been met In that event, it is the duty of the Chicago River and Indiana Railroad Company to operate the track for all kinds of traffic, including livestock, without discrimination. That is clearly the obligation of the statute.

As to whether the line-haul carriers are to assume the expense of delivery of livestock destined to Swift over the tracks operated by the Chicago River and Indiana Railroad Company without charge, over and above the regular transportation rate, depends upon proper application of the law as embodied in other provisions of the Interstate Commerce Act, including sections 1 (4), 1 (5) (a), 2, and 3 (1).

The main question to be answered in this connection is whether the compensation included in the line-haul rates covers delivery of livestock to the private sidetrack of Swift. In determining this question

it is important to look at the general practice prevailing in that area with respect to freight generally. This practice is somewhat unusual in one respect, that is, the line-haul carriers and the switching lines, such as the Chicago River and Indiana Railroad Company, enter into joint rates to and from sidetracks located on the switching lines in the Chicago district, including Packingtown. An exception has been made, as previously noted, in the delivery and receipt of livestock at the Union Stock Yards in that several of the line-haul carriers under trackage agreements make the deliveries and receive the outgoing livestock at the stockyards themselves. On all other kinds of freight, including perishables, delivery is made to all other points and industrial sidings on the lines of the Chicago River and Indiana Railroad Company, including Swift's sidetrack, without charge in addition to the line-haul rates, and this carrier receives as compensation for its switching services a division of each joint rate that amounts to 3.15 cents per 100 pounds, minimum 60,000 pounds, or $18.90 per car on a minimum carload, which may be compared with its local switching charge of $28.80 per car.

The conclusion seems inescapable that the singling out of livestock as the exclusive type of freight which will not be accorded the switching service without extra charge is not only unjust and unreasonable, under sections 1 (4) and 1 (5) (a) of the act, but unduly and unreasonably prejudicial under section 3 (1). The latter section prohibits, among other things, the subjection of any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. The attempt of the respondents to justify different treatment of livestock from that accorded all other classes of freight, including perishables, on the ground that livestock alone would create an intolerable disruption of service on the lines of the Chicago River and Indiana Railroad Company fails, in the circumstances here presented, to satisfy the demands of reason and justice. Injury can grow out of such a situation and I think it will in this instance. (See Utah State Automobile Assn. v. Atchison, T. & S. F. Ry. Co., 92 I. C. C. 376, and Duluth Chamber of Commerce v. C., St. P., M. & O. Ry., 122 I. C. C. 739.)

The majority is impressed with the speculative possibility that if Swift's request here is granted other packers in that area would be entitled, on demand, to receive similar services and that the capacity of the terminal facilities of the Chicago River and Indiana Railroad Company might thus be overtaxed. Conceivably, those facilities can be overtaxed, but that point has not yet been reached and the right of the carrier to deny service on that ground does not now exist. If and when such an eventuality occurs the problem may be

resolved in the light of settled principles of law. Service may not be denied by a common carrier, upon reasonable demand for it, as long as the carrier has the capacity to render it. It is true that the right of a common carrier to deny service to a prospective user on the ground of a lack of capacity has been recognized by law, but this right does not arise until the limits of capacity have actually been reached. The principles of law which govern such a situation were stated by the Supreme Court at page 133 of its opinion in Pennsylvania R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, as follows:

The common law of old in requiring the carrier to receive all goods and passengers recognized that "if his coach be full" he was not liable for failing to transport more than he could carry. Hutchinson on Carriers, 146; Lovett v. Hobbs, 2 Shower, 127; Riley v. Horne, 2 Bing. 217; Peet v. Ry., 20 Wisconsin 594. The same principle is applicable to those who transport freight in cars drawn by steam locomotives. The law exacts only what is reasonable from such carriers-but, at the same time, requires that they should be equally reasonable in the treatment of their patrons. In case of car shortage occasioned by unexpected demands, they are bound to treat shippers fairly, if not, identically. The action of the majority in authorizing an extra switching charge to deliver livestock at Swift's plant, on the ground that such additional compensation is justified by reason of an increased congestion of the yard operations and facilities, introduces a novel idea into the field of railroad regulation. Under such a theory the tendering of shipments of any kind to a railroad in excess of the capacity of its regular train schedules might well give rise to the assessment of an extra charge on the surplus shipments. The terminals of railroads and other agencies are subject to periods of congestion, particularly at the larger centers, which frequently occasion overtime work or the employment of additional help to restore normal conditions. While embargoes are often employed as an aid in overcoming difficulties of this kind, there is no record of an attempt to resort to the use of extra transportation assessments as a recompense to the carriers for the extra costs entailed. It is a familiar practice, for instance, for carriers to run extra busses or passenger trains out of various terminals on week ends to take care of overflows of passengers. If pursued to its ultimate conclusion, the principle which the majority here enunciates would authorize the charging of additional compensation to the overflow passengers. Such an idea is too closely akin to a punitive measure to be just and reasonable. A search of the authorities reveals no warrant of law for such action. As a matter of fact, it is condemned by the decision cited and quoted from in the preceding paragraph hereof.

There is no more justification for assessing an extra charge against Swift for the switching of livestock in this instance than there would

be for charging additional compensation over and above the line-haul rates on all traffic passing through the yards in question. If the handling of a heavy volume of traffic through the yards with Swift's livestock cars added should actually contribute to a higher rather than a lower cost per car, which is doubtful to say the least, then the additional cost should be distributed over all traffic flowing through the yards rather than be charged to one shipper alone.

COMMISSIONERS JOHNSON, MITCHELL, and CROSS did not participate in the disposition of these proceedings.

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