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and, if this contention were allowable, it would in the great majority of cases involving unfair and prejudicial rates effectually nullify the Interstate Commerce Law.3

Sec. 551. Third section of Interstate Commerce Act modeled on English Act Their differences.-The third section of the Interstate Commerce Act was modeled upon the second section of the English "act for the better regulation of the traffic on railways and canals" of July 10, 1854, and the eleventh section of the act of July 21, 1873, entitled "An Act to make better provision for the carrying into effect of Railway and Canal Traffic Act, 1854, and for other purposes connected therewith. '5 As its title implies, the latter act does

3. Interstate Commerce Commission v. Louisville & N. R. Co., 118 Fed. 613.

4. Act for the better regulation of the traffic on railways and canals of July 10, 1854. 17 & 18 Vict. Ch. 31.

"Sec. 2. 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 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 whatscever, 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; and every railway

company and 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 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 all the traffic arising 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 aforesaid, and so that no obstruction may be afforded to the public desirous 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." See Pickering, Phipps & Co. v. Railway, 2 Q. B. (1892) 229.

5. 36 & 37 Vict. Ch. 48.

not repeal the former, but merely adds specific provisions for its better enforcement.

It should also be noticed in this connection that the English act does not contain the word "locality," which marks an important difference between the English and American acts. The word "locality," however, does not make it competent for a railroad company to appropriate the grievance of a traffic or locality under section three, and to complain on account of it."

Sec. 552. Section three is more comprehensive than section two. Unjust discrimination is prohibited by section three as well as by section two. The latter relates to unjust discrimination in rates; the former is comprehensive enough standing alone to include every form of unjust discrimination, not only in rates, but also in the conveniences and facilities supplied to shippers in any of the details of the carrying service. The same rule holds good as to section three, therefore, that obtains as to section two, viz., that a charge may be perfectly reasonable under section one of the act and may create an unreasonable preference or advantage under section three.8 The question of relative rates would also arise under section three, as under section two.9

Sec. 553. Questions of undue or unreasonable prejudice or preference are questions of fact.-As the third section of the act, which forbids the making or giving any undue or unreasonable preference or advantage to any particular person or locality, does not define what, under that section, shall constitute a preference or advantage to be undue or unreasonable, it cannot be doubted that whether, in particular instances, there has been an undue or unreasonable prejudice

6. Oregon Short Line, etc. Ry. 8. Interstate Commerce ComCo. v. Railroad Co., 61 Fed. 158, mission v. Baltimore, etc., R. Co., 9 C. C. A. 409, 15 U. S. App. 479, 145 U. S. 263, 12 Sup. Ct. R. 844, affirming 51 Fed. 465. 36 L. Ed. 699, affirming 43 Fed. 37.

7. United States v. Delaware, etc. R. Co., 40 Fed. 101; Interstate Commerce Commission v. Chicago Great W. Ry. Co., 141 Fed. 1003.

9. Interstate Commerce Commission v. Louisville & N. R. Co., 73 Fed. 409.

or preference is a question of fact depending on the matters proved in each case,10 the carrier's business involving so many considerations that each case must be treated broadly and practically by itself. And in determining whether the rates charged by a railroad company to and from a city are unjust and unreasonable in themselves, the greatest weight should be given to the following considerations: The opinion of expert witnesses; the effect of the rates charged on the growth and prosperity of the city; the cost of transportation as compared with the rates charged, and the rates in force at numerous other cities, where the circumstances are as nearly similar as may be to those prevailing at such city.12

Sec. 554. Origin of goods immaterial under section three. -All goods offered for shipment at a certain point must be carried at the established rate for such goods from such point, regardless of the place where they originated. To hold otherwise would be to subject the shipper whose goods originated at points other than the place of shipment and the locality from which he got his goods to an undue and unreasonable disadvantage.13

Sec. 555. Carriage of articles or commodities manufactured, mined or produced by carrier-Section three applies to carriage of timber and manufactured products thereof which are excepted by section one.-Under section one of the Interstate Commerce Act, as amended June 29, 1906, "from and after May first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport from any State, Territory, or the District of Columbia, or to any foreign country, any article or commodity, other than timber 10. Interstate Commerce Com- mission v. Louisville & N. R. Co., mission v. Alabama Midland Ry. 73 Fed. 409. Co., 168 U. S. 144, 18 Sup. Ct. R. 45, 42 L. Ed. 414, affirming 74 Fed. 715, 21 C. C. A. 51, 41 U. S. App. 453 and 69 Fed. 227; Interstate Commerce Commission v. Chicago Great W. Ry. Co., 141 Fed. 1003.

11. Interstate Commerce Com

12. Interstate Commerce Commission v. Southern R. Co., 117 Fed. 741, affirmed, 122 Fed. 800, 60 C. C. A. 540.

13. Bigbee & Warrior River's Packet Co. v. Railroad Co., 60 Fed. 545.

and the manufactured products thereof, manufactured, mined, or produced by it, or under its authority, or which it may own in whole or in part, or in which it may have any interest direct or indirect, except such articles or commodities as may be necessary and intended for its use in the conduct of its business as a common carrier." It should be noticed in the first place that this provision only applies to railroad companies and not to the other carriers who are now brought within the scope of the act. But, on the other hand, it should. also be noticed that the language of the third section is so broad that it applies to all carriers within the scope of the act and all classes of commodities carried by them, and by becoming a vendor of the articles carried, the carrier does not escape its inhibitions. While under the provisions of section one all carriers may become dealers in certain excepted articles of transport, or carriers other than railroad companies may become dealers in all articles of transport, and can sell and consequently can contract to sell such articles at a price which pays, or practically pays, the cost items and its own published freight charges, yet, whenever the cost items so substantially rise that the loss to the carrier as a dealer and the subsequent advantage to the purchaser consignee, or the disadvantage to some one else, becomes unreasonable or undue, such sales become, or such contract becomes, illegal. When such a state of facts come to exist, the carrier must plead the illegality of the transaction and cease. to perform. It is not an answer to say that the losses of the carrier dealer may be treated as losses on its account as dealer. If there is substantial loss, no matter to which of the carrier's accounts it is charged, there is either an advantage to the purchaser, or a disadvantage to some one else, equal to this. In the event that the carrier refuses to cease to perform such a contract, its further performance will be enjoined.14

14. New Haven R. R. Co. v. Interstate Commerce Commission, 200 U. S. 361, modifying and af

firming Interstate Commerce Commission v. Chesapeake and Ohio Ry. Co., 128 Fed. 59; Interstate

So it may be conceded that it is competent for a railroad company to so adjust its rates as to promote its legitimate interest, and, in so doing to build up to a reasonable degree a seaport on its own line at the expense of another port on another line, but it cannot, with this purpose, adopt rates excessive in themselves, unduly preferential to its own port and unduly prejudicial to another port.15

Sec. 556. Discrimination in carriage of live stock and affording proper facilities under section three.-As incidental to its business of transporting cattle, a railroad company must provide the means of loading, unloading, and caring for such freight, and it cannot be said that a carrier is giving an undue or unreasonable preference to itself or subjecting a neighboring carrier to an undue and unreasonable disadvantage if it insists on delivering live stock which it has carried to the end of the transit at its own yard. The fact that the neighboring carrier's stock yards are public does not change the case.16 In the case of shippers it was held under the old Interstate Commerce Act that a railroad company was under no obligation to furnish appliances for receiving and delivering live stock at every point on its line where persons engaged in buying, selling, or shipping live stock chose to establish stock yards. It could, if it chose, select the yards of a particular stock yards company to deliver and receive cattle at that point at its station without any yardage charge or fee for the proper loading and unloading of live stock or without any fee for a reasonable time after the cattle were delivered from the cars. After that reasonable time had expired the question of holding the live stock was one between the stock yards company and consignee, and did not concern the carrier. It had done its duty in giving the consignee a reasonable opportunity to take the cattle away from the yards with

Commerce Commission v. Baird, 194 U. S. 25, 48 L. Ed. 860.

15. Interstate Commerce Commission v. Louisville & N. R. Co., 118 Fed. 613.

16. Central Stockyards Co. V. Railroad, 192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. R. 339, affirming 118 Fed. 113, 55 C. C. A. 63.

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