erating steamers in connection with its railroad as a single line is not guilty of a discrimination against another carrier, within the prohibition of the interstate commerce act, by refusing to allow a rival steamboat company to land its boats at a wharf used by it solely for connecting its railroad and boats, where there is no regular public station at such wharf, but the general station is at a little distance and ample facilities there exist. Ilwaco R. & Nav. Co. v. Oregon S. L. & U. N. Ry., 57 Fed. 673, 6 C. C. A. 495, 5 Int. Com. Rep. 627, B. & W. 275 (1893).

So a railroad does not violate the act by making and carrying out an exclusive contract with a stock yards company for the exclusive delivery to that company of live stock in the city of Louisville, although in carrying out such contract it refuses to deliver to another railroad company, for delivery to a competing stock yards, live stock consigned to such competing stock yards; for, as Mr. Justice Holmes remarked, the favored stock yards " are the defendant's depot. They are its depot none the less that they are so by contract, and not by virtue of a title in fee. Unless a preference of its own depot to that of another road is forbidden, the defendant is not within the act of Congress. Suppose that the Southern Railway station and the Louisville & Nashville station were side by side, and that their tracks were connected within or just outside the limits of the station grounds. It could not be said that the defendant was giving an undue or unreasonable preference to itself or subjecting its neighbor to an unque or unreasonable disadvantage if it insisted on delivering live stock which it had carried to the end of the transit at its own yard." Central Stock Yards Co. v. Louisville & N. R. R., 192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. 339 (1904); Railroad Commission of Kentucky v. Louisville & N. R. R., 10 I. C. C. Rep. 173 (1904).

Under this provision a car company is not a connecting carrier, and is not entitled to protection. Burton Stock Car Co. v. Chicago & A. R. R., 1 Int. Com. Rep. 329 (1887); Worcester Excursion Car Co. v. Pennsylvania R. R., 2 Int. Com. Rep. 792, 3 I. C. C. 577 (1890). Neither is a bridge company. Kentucky & I. Bridge Co. v. Louisville & N. R. R., 37 Fed. 571, 2 L. R. A. 289, 2 Int. Com. Rep. 102 (1888).

§ 997. Discrimination in furnishing optional facilities.

Certain facilities are entirely optional with the carrier; either by express provision of the statute, such as terminal facilities, or by their nature. So a carrier may furnish to one connecting road and not to another trackage and terminal facilities. Little Rock & M. R. R. v. St. Louis, I. M. & S. Ry., 59 Fed. 400 (1894). So it may accept goods from one carrier without prepayment of charges, while it requires prepayment of charges from another. Little Rock & M. R. R. v. St. Louis, I. M. & S. Ry., 59 Fed. 400 (1894); Little Rock & M. R. R. v. St. Louis S. W. Ry., 63 Fed. 775, 11 C. C. A. 417, 4 Int. Com. Rep. 854, B. & W. 277 (1894). So

it may make through billing and routing arrangements with one connecting line while declining to do so with another. Little Rock & M. R. R. v. East Tenn. V. & G. R. R., 47 Fed. 771, 4 Int. Com. Rep. 261 (1891); Oregon Short Line v. Northern Pac. R. R., 51 Fed. 465, 3 Int. Com. Rep. 205 (1891), affirmed 61 Fed. 158, 9 C. C. A. 409, 4 Int. Com. Rep. 718 (1894); Little Rock & M. R. R. v. St. Louis, I. M. & S. Ry., 59 Fed. 400 (1894); Little Rock & M. R. R. v. St. Louis S. W. Ry., 63 Fed. 775, 11 C. C. A. 417, 4 Int. Com. Rep. 854, B. & W. 277 (1894); St. Louis Drayage Co. v. Louisville & N. R. R., 65 Fed. 39, 5 Int. Com. Rep. 137 (1894); Prescott & A. C. R. R. v. Atchison, T. & S. F. R. R., 73 Fed. 438 (explaining New York & N. Ry. v. New York & N. E. R. R., 50 Fed. 867), appeal dismissed 84 Fed. 213, 28 C. C. A. 481 (1897); Gulf C. & S. F. R. R. v. Miama S. S. Co., 86 Fed. 407, 30 C. C. A. 142, 52 U. S. App. 732 (1898).

§ 998. Use of tracks or terminal facilities.

This provision modifies the requirement for reasonable facilities for interchange of traffic. It imposes upon a carrier no duty either to form new connections or to establish new stations, yards, or depots, or to pay any part of the expense of providing such new facilities, either for the convenience of the public or of other carriers; and a carrier cannot be compelled to receive or deliver traffic at a point where another company has made a new connection with its roads, but has not provided proper facilities. Kentucky & I. B. Co. v. Louisville & N. R. R., 37 Fed. 571, 2 Int. Com. Rep. 102, 2 L. R. A. 289 (1888).

The provision is merely negative. It does not affect either a contract or a State statute giving another carrier the right to use tracks and terminal facilities. Iowa v. Chicago, M. & S. P. Ry., 33 Fed. 391 (1887), appeal dismissed, Chicago, B. & Q. R. R. v. Iowa, 145 U. S. 631, 36 L. Ed. 857, 12 Sup. Ct. 978 (1892).

“Terminal facilities" refers to facilities for interchanging traffic between connecting lines. Chicago F. P. C. Co. v. Chicago & N. W. Ry., 8 I. C. C. Rep. 316 (1899).

TOPIC B-THROUGH ROUTING AND RATING.
[See Chapter XIX.]

$999. Carriers not compelled to route, bill or rate through. Under the original act no power was given to the Commission to compel through billing, routing or rating by connecting lines. This can be done only by contract or arrangement between the carriers, and the act does not compel connecting carriers to make mutual contracts. Central Stock Yards Co. v. Louisville & N. R. R., 192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. 339 (1904); Kentucky & I. Bridge Co. v. Louisville & N. R. R., 2 L. R. A. 289, 2 Int. Com. Rep. 351, 37 Fed. 567, 629, 630 (1888); Little Rock

& M. R. R. Co. v. St. Louis, I. M. & S. Ry., 2 Int. Com Rep. 763, 41 Fed. 559 (1890); Chicago & N. W. Ry. v. Osborne, 3 C. C. A. 347, 4 Int. Com. Rep. 257, 52 Fed. 915 (1892); Oregon Short Line & U. N. Ry. v. Northern P. R. R., 4 Int. Com. Rep. 718, 9 C. C. A. 409, 15 U. S. App. 479, 61 Fed. 158, affirming 4 Int. Com. Rep. 249, 51 Fed. 465 (1894); Little Rock & M. R. Co. v. St. Louis S. W. R. Co., 26 L. R. A. 192, Int. Com. Rep. 854, 11 C. C. A. 417, 27 U. S. App. 280, 63 Fed. 775, B. & W. 277 (1894); St. Louis Drayage Co. v. Louisville & N. R. Co., 5 Int. Com. Rep. 137, 65 Fed. 39 (1889); Allen v. Oregon R. & Nav. Co., 98 Fed. 16 (1899); Mattingly v. Pennsylvania Co., 2 Int. Com. Rep. 806, 3 I. C. C. 592 (1890); Re Clark, 2 Int. Com. Rep. 797, 3 I. C. C. 649 (1890); Re Joint Water & Rail Lines, 2 Int. Com. Rep. 486, 2 I. C. C. 645 (1889); Capehart v. Louisville & N. R. R., 3 Int. Com. Rep. 278, 4 I. C. C. 265 (1890); Commercial Club v. Chicago, R. I. & P. Ry., 6 I. C. C. Rep. 647 (1896); New York, N. H. & H. R. R. v. Platt, 7 I. C. C. Rep. 323 (1897); Savannah Bureau of Freight & Transp. v. Louisville & N. R. R., 8 I. C. C. Rep. 377 (1899). For this reason one railroad can sell tickets over the road of another company only by agreement. Chicago & A. R. R. v. Pennsylvania Co., 1 Int. Com. Rep. 357, 1 I. C. C. 86 (1887).

Under the amendment of 1906, however, connecting carriers may be compelled to form a through route, and to bill and rate through.

§ 1000. Carrier may select connecting line.

A carrier which makes a through rate may select such connecting line as he pleases for the forwarding of traffic, and is not obliged to ship on by the line selected by the shipper. This was denied by the Commission in Consolidated Forwarding Co. v. Southern Pac. Co., 9 I, C. C. Rep. 182 (1902), but was finally so held by the Supreme Court. Southern Pacific Co. v. Interstate Commerce Commission, 200 U. S. 536, L. Ed. Sup. Ct. 330 (1906).

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This is, however, changed by the provisions of the Act of 1906, which requires the through route to be named by the carrier and the consent of the connecting lines obtained.

§ 1001. Establishment of through route by agreement,

When, however, a through route has been established by agreement of the carriers, every shipper must be allowwed the benefit of it. Rea v. Mobile & O. Ry., 7 I. C. C. Rep. 43 (1897). The carriers establishing it must be prepared to furnish suitable instrumentalities of shipment and carriage. Independent Refiners' Assoc. v. Western N. Y. & P. Ry., 6 I. C. C. Rep. 378 (1895). If any mistake is made by the first carrier in forwarding over the route that carrier is responsible. Pond-Decker Lumber Co. v. Spencer, 86 Fed. 846 (1898).

TOPIC C-PROHIBITION OF POOLING.

1002. Pooling.

Any arrangement, oral or otherwise, or combination, which has for its purpose and eventuates in the pooling of freights of different and competing railroads, comes within the inhibition of the act. The statute contemplates two methods of pooling, both of which are prohibited: First, a physical pool, which means a distribution by the carriers of property offered for transportation among different and competing railroads in proportions and on percentages previously agreed upon; and, secondly, a money pool, which is described best in the language of the statute, "to divide between them [different and competing railroads] the aggregate or net proceeds of the earnings of such railroads, or any portion thereof." The statute provides for the indictment not only of the carrier itself, but also of the officers individually where the carrier is a corporation, so that in such case both are indictable. In re Pooling Freights, 115 Fed. 588 (1902).

Division of territory among existing roads appears to be forbidden by the act. Freight Bureau v. Cincinnati, N. O. & T. P. Ry., 4 Int. Com. Rep. 592, 6 I. C. C. 195 (1894). But apparently an agreement between railroads for a division of territory into which each may extend branch lines is not covered by the act. Ives v. Smith, 8 N. Y. Supp. 46 (1889).

Railway companies which enter into an association to control traffic to a common market, and maintain rates higher than are reasonable, unjustly prejudicial, and preferential, if not jointly liable, are at least severally liable under this provision; and the "fines" or "penalties" imposed by the provisions of the agreement of the Southern Railway & Steamship Association on members for violation of association rules appear on the face of that agreement to be available as substitutes for payment which would be exacted under a regular pooling system, and the arrangement under which they are imposed is tantamount to a combination, contract, or agreement for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads or any portion thereof,” which are forbidden by the statute. Freight Bureau v. Cincinnati, N. O. & T. P. Ry., 4 Int. Com. Rep. 592, 6 I. C. C. 195 (1894).

The Interstate Commerce Commission has held that it is at least doubtful whether section five of the act applies to a practice whereby the trans portation of immigrants from Atlantic ports westward is divided between the carriers in agreed proportions based upon the proportion of the domestic passenger traffic done by each line, where such a practice cannot be made effective in respect to any other class of passenger business, and the immigrants are carried at domestic published rates, and the arrangements adopted by the carriers in connection with the immigration authorities of the United States have efficiently promoted the protection and greatly im

proved the treatment and comfort of immigrants. Re Transportation of Immigrants from New York, 10 I. C. C. Rep. 13 (1904).

Certain transcontinental carriers adopted as part of an agreement for a through rate from California to the East, for oranges and other citrus fruits, a rule under which the right of routing beyond its own terminal is reserved to the initial carrier as the condition of guaranteeing the through rates to the shipper. The initial carrier promised fair treatment to the connecting lines, and carried out such promise, but there was no agreement to give any specific amount of tonnage to any particular connecting line. The rule was intended to break up rebating by the connecting lines, and, in its practical operation, the actual routing was generally conceded to the shipper, and his requests to divert shipments en route were usually allowed. It was held that this was not a pooling of freights such as is forbidden by the act. Southern Pacific Co. v. Interstate Commerce Commission, 200 U. S. 536, 26 Sup. Ct. 330 (1906).