The case does not present the question, which has been somewhat argued, of the right of one carrier to refuse to accept tickets sold by another upon grounds of questioned solvency or for other reasons; on the contrary, the St. Louis, Iron Mountain & Southern honors through tickets sold by the East Tennesse, Virginia & Georgia without question, and desires their sale to continue; whatever right it might have under other circumstances to decline to treat the East Tennessee, Virginia & Georgia as its agent in the sale of passenger tickets, that company is its agent for that purpose at the present time.

Nor does this case present the question whether it is the duty of the East Tennesse, Virginia & Georgia to sell through tickets over connecting roads, or whether the Act to regulate commerce is efficient to require the establishment of through routes by connecting roads. That company is now engaged in the sale of such tickets and is operating such a through route. The claim made is, that so long as the East Tennessee Virginia & Georgia sells through tickets to Texas. points via Bald Knob it cannot legally refuse to sell them via the Little Rock & Memphis road also.

This case is not controlled, as counsel claim, by the decision of the Commission in the case of the Chicage & Alton Railroad Company v. Pennsylvania Railroad Company, (1 I. C. C. R., 86). In that case the defendant offered to sell tickets over complainant's line upon terms which had been accepted by other lines whose tickets were on sale, but which terms were not acceptable to complainant. Upon that state of facts one Commissioner was of opinion that the condition was not properly required and that a preference was wrought; while the other Commissioners believed that the offer of equal terms to all satisfied the requirement of the statute. In the present case there is simply a refusal to deal with the Little Rock & Memphis Company upon any terms whatever. If equal terms to those given the Bald Knob route were offered, the evidence leaves no room for doubt that they would be cheerfully accepted.

A sentence extracted from the opinion of the Commission in the Chicago & Alton case does not bear the interpretation

placed upon it by counsel, who treat it as deciding that the Act does not undertake to coerce connecting carriers to do business together. The sentence is as follows:

"If companies can agree upon their tariffs, the form of their tickets and how they should be sold, they have the right to do so and by such agreement become interstate carriers; but if they cannot agree the Act does not undertake to coerce them to do business together upon terms that may be justly objectionable or injurious."

The last qualifying phrase must not be overlooked. The construction of the Act in respect of requiring the establishment of joint traffic arrangements, upon fair and just terms, remains as yet an open question so far as the decisions of the Commission have extended; and the question thus stated is not reached in the present case even, which stands, as above shown, upon the ground of prejudice or preference in favor of one existing through route against another which claims the right to participate in the business upon an equal footing.

The English statute of 1854 contained the following language:

"Every railway company, canal company, and railway and canal company shall according to their respective powers afford all reasonable facilities for the receiving and forwarding and delivering of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats, and other vehicles; * * * and every railway company, canal company, and railway and canal company, having or working railways or canals which form part of a continuous line of railway or canal, or a railway and canal communication, or which have the terminus, station or wharf of the one near the terminus, station or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding of the traffic arriving by one of such railways or canals by the other without any unreasonable delay and without any such preference or advantage, or prejudice or disadvantage as afore

said, and so that no obstruction may be offered to the public desirious of using such railways or canals or railways and canals as a continuous line of communication, and so that all reasonable accommodations may by means of the railways and canals of the several companies be at all times afforded to the public in that behalf."

It should first be noted that the words omited in the above quotation form the substantial part of the first paragraph of Section three of the Act to regulate commerce; they are as follows:

"And no such company shall make or give any undue or unreasonable preference or advantage to or in favor of, any particular person or company or any particular description of traffic in any respect whatsoever, nor shall any such company subject any particular person or company or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever."

This language has been dissected from the section in which it originally appeared, and placed as the leading paragraph of Section three of our Act.

The Railway and Canal Traffic Act of 1854 was committed for enforcement to the Court of Common Pleas in England. When a Railway Commission was established by the Regulation of Railway's Act of 1873, said court had been called upon to construe the above section in several instances, and the language found in the act of 1873 was chosen in the light of the decisions of the courts upon the language of the original statute. Under a sub-heading, "Explanation and Amendment of Law," the English Parliament in Section eleven of the Act of 1873, recited Section two of the Railway and Canal Traffic Act of 1854, above quoted, and proceeded as follows:

"Whereas it is expedient to explain and amend the said enactment, Be it therefore enacted, That except as hereinbefore mentioned said facilities to be so afforded are hereby declared to and shall include the due and reasonable receiving, forwarding and delivering by every railway company

and canal company, and railway and canal company, at the request of any other such company, of through traffic to and from the railway or canal of any other such company, at through rates, tolls, or fares (in this Act referred to as 'through rates'); Provided as follows:"

Nine enumerated provisos follow, establishing a system for the enforcement of said enactment, in substance, that the carriers must first endeavor to agree among themselves; failing such agreement the matter may be referred to the Commissioners for their decision, when "the Commissioners. shall consider whether the granting of the rate is a due and reasonable facility in the interest of the public, and whether, having regard to the circumstances, the route proposed is a reasonable route, and shall allow or refuse the rate accordingly." Other provisions regulate the apportionment of the through rate by the Commissioners, when a through route is established.

These various provisions obviously are designed to enable a railroad to get itself made part of a through route when facilities for the interchange of traffic are refused by connecting lines, and it has been repeatedly interpreted as having such scope. Applications under it for the establishment of through rates are made by railroad companies solely, and not by or on behalf of the public. (Great Western R'y Co. v. The Severn & Wye and Severn Bridge R'y Co. and the Midland R'y Co., 5 R. & C. Traffic Cases, 174-189.)

Intermediate railroad companies and bridge companies under this statute have repeatedly applied for through rates; and through routes with through rates have been established from time to time by the English Commission. This has been done in instances when the working of the new route would divert traffic from lines operated by existing companies, which were nevertheless compelled to become party to a new through route involving through rates and divisions thereof. The factor which is chiefly looked to, as determining the question of the establishment of a new proposed through route, is the interest of the public therein. question presented in the statute is met as a question of fact

The

whether "the granting of the rate is a dué and reasonable facility in the interest of the public, and whether, having regard to the circumstances, the route proposed is a reasonable route." The reasonableness of the route is also an important element to be considered, depending upon distance, expense of working and other like considerations. (See case cited above, decided January 27, 1887).

The Act to regulate commerce does not contain the provisions of detail found in the English act of 1873, and re-enacted with some further modifications in the English Railway and Canal Traffic Act of 1888. The language of our statute, which very greatly condenses the corresponding section of the English law, is as follows:

"Every common carrier subject to the provisions of this Act shall, according to their respective powers, afford all reasonable, proper and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines."

It is to be observed that while the English statute requires "reasonable facilities" our statute demands "reasonable, proper, and equal facilities"; the words "proper" and “equal" being added. Our act also adds the phrase "and shall not discriminate in their rates and charges between such connecting lines." This phrase, together with the word "equal," were added in Congress to the bill as originally prepared and introduced by the Select Committee on Interstate Commerce.

The rules of construction and application established in the provisos to the English statute are manifestly just, and this Commission in its Second Annual Report (page 70) has recommended the amendment of our third section by adding a provision which would substantially incorporate the same rules into our law in terms. Nevertheless the Commission does not find in the section as it now stands an intention to