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than such as may be included in the yearly rental, enabling him to acquire practically a monopoly of the export of cotton-seed products, constitutes an unlawful preference under the act to regulate commerce where other shippers are not, and cannot be, afforded the facilities on the same conditions. Southern P. T Co. v. Interstate Commerce Commission, 219 U. S. 498, 55 L. Ed (1911). This case was distinguished from that of Louisville & N. R. v. West Coast Naval Stores Co., 198 U. S. 483, 49 L. Ed. 1135, where the complainant company was found to have the same privilege of using the wharves of the railroad company as other shippers had. It was also distinguished from the case of Weems S. B. Co. v. Peoples' S. B. Co., 214 U. S. 344, 53 L. Ed. 1024, where there were two independent lines of steamboats one claiming the right to use the wharves of the other on the ground that the wharves had been dedicated to the public and the fact was found adversely to the contention.

249. The management of freight stations and warehouses must be without preference.-The circuit court of Oregon in U. S. ex rel. v. Oregon R. & N. Co., 159 Fed. 975, in 1908, held that while a railroad could grant the privilege to one person to erect a warehouse on its right of way and refuse a like privilege to another, yet that the warehouseman for whom the orders for cars were given, was the agent of the carrier, and the latter was bound to see that the agent was guilty of no negligence or unfaithful performance of duty; and if the rules established by the management of the stations or warehouses operated to prejudice one class of patrons, or if the manner of distributing the cars subjected the storers and exporters to an undue or unreasonable prejudice and disadvantage and favored the warehousemen who were also engaged in the business of buying and exporting, there was a violation of the law.

The hours of business may also involve undue and unreasonable prejudice and disadvantage to shippers. Thus, in 10 I. C. C. R. 378, the commission ruled that such a case, where complaint was made of a closing hour, 4:30, as earlier than that in competing cities, was a matter within their jurisdiction, though the exceptional hour was for the time justified by the congestion of traffic.

§ 250 (189). Unjust preference in car service. The providing of reasonable car facilities for its patrons is a common law duty of the carrier, and this service must be rendered without unreasonable discrimination either in charges or in the facilities afforded. This common law duty, which is enforced in the different states under state statutes and at common law, is emphasized by and may be enforced under the provisions of this section as to interstate traffic. Localities as well as shippers may be prejudiced by the unjust discriminations in the supply of cars. This right is further enforced by the amendment of 1889, specifically authorizing the issue of a writ of mandamus (infra, section 23), for the furnishing of cars and other facilities. In United States v. West Virginia & Northern Railroad Co., 125 Fed. 252, the United States circuit court of West Virginia granted a mandamus to compel the carrier to cease preferences in the supply of cars to certain coal mines. The court said it was the legal duty of the railroad company in furnishing cars to coal mines along its line to distribute the same impartially without unjust discrimination or favoritism, and that such distribution should be based on a disinterested and intelligent examination of the mines, by experts, and upon a consideration of all the factors which go to make up the capacity of the mines, the production, the equipment for the use for handling and loading of the product being secondary because it could quickly and easily be increased to meet the requirements. The distribution of cars was found to have been unduly preferential to certain companies, this conclusion being based upon an estimate of the capacity of the mines and the percentage of cars allotted to each. See also to same effect United States v. Norfolk & Western R. Co., 109 Fed. 831; infra, section 23 of act.

It was ruled by the commission, 1 I. C. C. R. 594 and 1 Int. Com. Rep. 787, that it was not a valid excuse for refusal to furnish a fair allotment of cars of a certain class that they could be more profitably employed and could supply the wants of a larger number of shippers on another portion of the line. It also ruled that undue preference of a locality or of a shipper in the car service is established by showing that there is a considerable delay in furnishing cars, while other localities or shippers are furnished with comparative promptness. 9 I. C. C. R.

207. For other cases of discrimination before the commission in providing cars for coal, see 10 I. C. C. R. 226; 10 I. C. C. R. 47. the commission in several cases has awarded reparation in damages for discrimination in car service.

In Harp v. Choctaw & G. R. Co., 61 C. C. A. 405, and 125 Fed. Rep. 445 (eighth circuit), in 1903, it was held in a case where discrimination in car service was claimed in violation of the Arkansas statute, that a carrier transporting large quantities of coal is entitled to make regulations in respect to the manner of receiving and transporting it so that it may be handled safely, expeditiously and economically without interference with the carrier's other business, and regulations which are also designed to promote such business cannot be complained of on the ground that they operate to give a preference to one who complies with them or in a discrimination against one who does not. The furnishing therefore of cars to certain mine owners, who, through agreements with the company, had constructed private spur tracks to their mines, while refusing to furnish cars for loading on the station track to owners who had constructed no spur track, did not constitute an undue preference either under the common law or the Arkansas statute, which prohibited the giving of any preference in the furnishing of cars. The court found that the volume of business was such that to permit the use of the station tracks for loading cars in that manner would not only interfere with the operation of the trains, but also cause serious loss and inconvenience to other shippers and the public. It was held by the state court under the same statute that there was no undue preference between localities when there were not enough cars to supply all. The court cited as the leading case, Oxlaid v. Northeastern R. Co., 15 Common Bench, N. S. 680, construing the English Canal and Traffic Act of 1854, upon which the Interstate Commerce Act was based. Little Rock & St. L. R. Co. v. Oppenheimer, 44 L. R. A. 353, 64 Ark. 271.

The commission has ruled that it is not the duty of a carrier to notify the shipper when he can obtain cars for the removal of freight, if by reasonable inquiry he can obtain such information himself. 1 I. C. C. R. 608 and 1 Int. Com. Rep. 778.

It was said by the commission in another case, 1 I. C. C. R. 374 and 1 Int. Com. Rep. 688, where damages were claimed for

alleged violation of the act in the failure to furnish cars for coal shipments, that the inability of a carier to furnish cars as fast as demanded by shippers was not a violation of the act, where the company had an adequate freight equipment for ordinary conditions, but owing to an extraordinary demand for coal cars due to exceptional conjunction of circumstances, was unable to supply them as fast as the shippers demanded. Under such circumstances, the company performed its duty when it furnished the cars ratably and fairly at the mines along its line in proportion of their freights until the emergency had passed. Neither was a carrier responsible for the detention of cars by shippers longer than was necessary, when it appeared that the company did all in its power to enforce the prompt unloading of the cars. See also as to carriers' duty in the matter of car equipment, 2 I. C. C. Rep. 90, and 2 Int. Com. Rep. 67.

§ 251. The commission's regulations of coal car service sustained. The complex questions involved in the daily distribution of coal cars in time of car shortage, to coal mines under the peculiar conditions of that industry, are illustrated in the rulings of the commission, 12 I. C. C. Rep. 398; 13 I. C. C. Rep. 440, and 13 I. C. C. Rep. 451. These orders were based upon the peculiar conditions of the industry, which required the disposition of the product as soon as the coal was brought on the surface, as it is impracticable to store the coal, and the production of the mine is therefore dependent upon the quantity that can be removed each day, and the daily distributions of cars are made to the mines to permit their removal of the available output for each day. Unforeseen periods necessarily arise. when the shortage of cars to meet the demand takes place notwithstanding the full performance by the carriers of their duty, because of the wide fluctuations of the demand and the detentions of the cars at the terminal points. These conditions have required regulation of the distribution of coal cars. This situation required the handling of four classes of cars: 1. System cars owned by the carriers and in use for the transportation of the coal. 2. Company fuel cars, used for coal for fuel purposes of the carrier. 3. Private cars owned by coal mining companies, or shippers or consumers, and used for the benefit of their owners, and 4. Cars owned by other railroad compa

nies for the purpose of supplying such other companies with fuel. The commission ordered that in time of car shortage, when the daily distribution was made, that the railroad should count against the mine receiving the same, company fuel cars, foreign railway cars or private cars; and the commission required the railroad to establish regulations for the period of two years from July 1st, 1908, providing for the counting of all such cars. The scope of the order was, however, modified by authorizing the railroad company to deliver to a particular mine the foreign railway fuel cars, the private cars and the company fuel cars consigned to such mine, even though the number might exceed the prorata share of the cars attributable to the mine when ascertained by taking into account all the cars which the order required to be considered. Where, however, the number of such cars was less than the prorata share of the mine, the order only permitted the carrier to add a sufficient number of system cars to make up the rightful prorata number.

The railroad company brought suit to enjoin this order of the commission, and the circuit court (Illinois) held that the railroad was entitled to an injunction restraining the enforcement of the order of the commission, in so far as it directed the taking into account of the cars employed by the railroad in hauling its own fuel. This was on the theory that these cars were not engaged in commerce as commerce. 173 Fed. 930. The supreme court, Interstate Com. Com. v. Illinois Central Ry. Co., 215 U. S. 452, 54 L. Ed. 280 (1910), reversed this decision, holding that this was an administrative order of the commission within the scope of the power delegated by congress; that commerce, in the constitutional sense, included the instrumentalities by which commerce was carried on, and extended to the coal cars owned by the railway company engaged in interstate commerce, wherein it received coal and used it solely for its own fuel purposes; and that the court would not review the discretion of such administrative order of the commission in determining that a certain distribution for a term of two years was fair and reasonable as a means of prohibiting the unjust discrimination forbidden by the act.

The court said that in view of the facts found by the commission as to the preference and discrimination resulted from the failure to count the company fuel cars in the daily distribu

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