4. It is the duty of a railroad company, | customers in the matter of distribution of in effecting coal-car distribution among cars.-Riddle, D. & Co. v. N. Y., L. E. & mines located on and shipping coal over W. Rd. Co., (1888) 1 I. C. C. R. 594, 1 I. its line, not to discriminate or show any C. R. 787. undue favoritism.-United States v. West Virginia N. R. Co. et al., (1903) 125 Fed. 5. While the capacity of a shipper of coal may be greater than his allotment of cars, yet, where such is also the case with every other shipper similarly situated in the coal field, it is the duty of the railroad company, where the supply of coal cars is short, to prorate the supply on hand, without unjust discrimination, among all the shippers, including the shipper in question.-United States v. Norfolk & Western Ry. Co., (1901) 109 Fed. Rep. 831. Difficulty of applying fixed rules. Refusal of shipper to accept cars because of accrued claim for damages. 11. Where damages have accrued to a shipper because of discrimination in furnishing cars, such shipper has no right to demand a settlement of the claim as a condition precedent to the acceptance of cars tendered by the carrier in the regular course of business.-Gallogly & Firestine v. Cincinnati, H. & D. Ry. Co., (1905) 11 I. C. C. R. 1. Grain elevator, discrimination in favor of. 12. With all the advantages which an elevator may prove as a home market to the community, and which may accrue to the railroad company from a large and 6. No exact rule can be laid down to constant shipper, it does not justify the govern the general distribution of cars be-agents of the line in so favoring such an tween different localities and different establishment in the matter of facilities of species of traffic. Shippers must be rea- transportation as to practically put other sonable in their demands and carriers dili- shippers out of business.-Eaton v. Cincingent and honest in meeting those demands. nati, H. & D. Ry. Co., (1906) 11 I. C. C. In times of temporary car famine the car-R. 619. rier can only be required to do its best and to treat its patrons without undue preference. Hawkins v. Wheeling & L. E. Rd. Co., (1902) 9 I. C. C. R. 212. Reasonable rule of distribution affords no just cause for complaint. 7. If a system of coal-car distribution applied by a railroad company in a given field is, under the circumstances and conditions peculiar to that field, a reasonable one, and fair to all, and is applied to all alike, no shipper has just cause for complaint.-United States v. Norfolk & W. Ry. Co., (1901) 109 Fed. Rep. 831. Agent, carrier bound by acts or representations of. 8. A carrier is bound by what its representative at a particular station says and does in the business of furnishing cars.Gallogly & Firestine v. Cincinnati, H. & D. Ry. Co., (1905) 11 I. C. C. R. 1. Regular customers of carrier, preference in favor of. 13. The fact that an elevator company is at greater expense than a track shipper, and has its produce at all times in sight, cannot justify a railroad company in so distributing its cars as to practically put such track shipper out of business.-Eaton v. Cincinnati, H. & D. Ry. Co., (1906) 11 I. C. C. R. 619. Specific instances of discrimination. 14. Defendant refused to furnish complainants with cars in which to ship grain from Leipsic, Ohio, to points in other states, while at the same time it furnished cars for like shipments to complainants' competitors. Held, that such refusal constituted unjust discrimination.-Gallogly & Firestine v. Cincinnati, H. & D. Ry. Co., (1905) 11 I. C. C. R. 1. 15. Defendant refused to furnish complainants with cars for shipment of coal while at the same time it furnished cars to complainants' competitors. Held, that such refusal subjected complainants to undue prejudice and disadvantage in violation of section 3 of the Act.-Glade Coal Co. v. Baltimore & O. Rd. Co., (1904) 10 9. It is unlawful ror a common carrier to refuse a shipment upon the ground that regular patrons desire to use all the facili-I. C. C. R. 226. ties at hand, and to appropriate to the uses of the latter its entire available equipment.-Riddle, D. & Co. v. New York, L. E. & W. Rd. Co., (1888) 1 I. C. C. R. 594, 1 I. C. R. 787. 10. Regular customers of a carrier are entitled to no preference over occasional 16. Between Dec. 16, 1902, and April 6, 1903, defendant refused to furnish complainant with cars for the shipment of cross ties, although, during such time, it furnished cars to other persons for the shipment of lumber, stone and many other articles of freight. It also supplied cars in which cross ties were carried for its own use. Held, that such refusal was unlawful under section 3 of the Aet.-Paxton Tie Co. v. Detroit Southern Rd. Co., (1905) 10 L C. C. R. 422. II. JURISDICTION OF COMMISSION. Authority to prohibit unjust discrimination. 17. While the Commission has no authority to require a carrier to furnish ears, it has authority to prohibit carriers from wrongfully discriminating between shippers in furnishing cars for transportation of interstate traffic.-Red Rock Fuel Co. v. Baltimore & O. Rd. Co., (1905) 11 L. C. C. R. 438. Authority to prescribe rule of distribution for future. 18. Section 3 of the Act prohibits the making or giving of any "undue or unreasonable preference or advantage." Section 15 of the Act authorizes the Commission to determine and prescribe "what regulation or practice in respect to such transportation is just, fair and reasonable to be thereafter followed.'' Held, that the Commission had the power not only to deal with a complaint alleging unjust diserimination in the distribution of coal cars, but to prescribe for the future what rule should be followed in the distribution of such ears.-Railroad Com. of Ohio v. Wheeling & L. E. Rd. Co., (1907) 12 I. C. C. R. 398. 19. Complainant alleged that defendant refused to furnish him with cars for shipment of grain from Holland, Ohio, while at the same time it furnished more than a fair proportion to complainant's competitor. The latter shipped largely to local points. Complainant desired to ship over eastern lines which, because of car short age, had established an embargo on grain. Held, that complainant was not subjected to unjust discrimination.-Parks v. Cincinnati & M. V. Rd. Co., (1904) 10 I. C. C. R. 47. an embargo; and if through neglect to secure such information the shipper fails to obtain cars while cars are being furnished to other shippers who have obtained information, the carrier cannot be charged with unjust discrimination.-Riddle, D. & Co. v. Baltimore & O. Rd. Co., (1888) 1 I. C. C. R. 608, 1 I. C. R. 778. IV. CONTRACTS RELATING TO DIS TRIBUTION. Agreement that extra number of cars be allotted one mine in consideration that same rate be extended to more distant mine. 21. Because of physical conditions the cost of transporting coal from a particular coal field to points on the Atlantic coast was greater than the cost of transporting coal from an intermediate coal field to the same points. In order to equalize the advantage enjoyed by the intermediate field, the operators therein agreed that the rate from that field could be applied to the other field, provided they were allotted an The operators additional number of cars. of both fields agreed with the railroad company that 1500 cars should be so Held, that an operator in the allotted. field not sharing in the extra allotment was not thereby subjected to unjust discrimination.-United States v. Norfolk & W. Ry. Co., (1901) 109 Fed. Rep. 831. Agreement for particular method of dis tribution as bar to mandamus proceeding. 22. A railroad company contracted with certain coal operators along its line that the car supply furnished by it would be distributed pro rata, each shipper to receive that proportion of the total number of cars which the number of coke ovens operated by him bore to the number mandamus, under section 23 of the Act, operated by all. On petition for writ of alleging that the railroad company was not distributing its cars in accordance with its contract, and that such action constituted discrimination, held, that the suit, in effect, was a proceeding to compel the performance of a private contract; that mandamus would not lie for the en forcement of mere private contractual obligations.-United States v. Norfolk & W. Duty of shipper to inform self as to end- Ry. Co., (1905) 138 Fed. Rep. 849; reing of embargo. 20. In the absence of a custom or course of business on the part of a carrier to notify shippers of the ending of embargoes upon its line, it is the duty of a shipper to inform himself as to ending of versed, 143 Fed. Rep. 266. 23. A railroad company contracted with certain coal operators along its line that the coal-car supply furnished by it should be distributed pro rata, each operator to receive that proportion of the total num it should appear that the tipple had suffered injury, or had been destroyed, the presumption would be that it would be repaired or replaced immediately, and the mine should be rated as if the tipple were intact.-United States v. West Virginia N. Rd. Co. et al., (1903) 125 Fed Rep. 252, 255; affirmed, 134 Fed. Rep. 198, 67 C. C. ber of cars which the number of coke V. RATING OF MINES. Particular methods employed. 27. The rating of mines on defendant's line in the Fairmont district, W. Va., for coal-car distribution in times of car shortage, was computed about once a year. The actual coal shipment of each mine was taken from its shipments in the summer season when a full supply of cars was at hand, and when, if it had orders, it could, so far as car supply was concerned, 24. In reaching a basis for just distri- ship its full capacity. The shipments bebution of coal cars among mines located ing thus ascertained, defendant's inspector on and shipping coal over the line of a next ascertained by actual examination railroad company, it is necessary that an the physical capacity of the mine-that is, impartial and intelligent study of the the number of working places for miners, capacity of the different mines be made the capacity of its tipple, the sufficiency by competent and disinterested experts, of its appliances-and from these were whose duty it should be to examine the estimated what the possible output of the elements which determine the daily out- mine would be, if it could sell its whole put of the respective mines to share in output and was furnished with cars suffithe allotment. This involves an examina-cient to ship it. The actual shipments betion of the working places, the number of ing thus ascertained and the possible mine cars and their capacity, the switch capacity thus estimated, the rating was and tipple efficiency, the number and char-arrived at by an average, counting the acter of the mining machines in use, the hauling system and the power used, the number of miners and other employes, the mine openings, and the miners' houses. In examining the working places, consideration should be given to the thickness of the seam and other conditions peculiar to the different coal fields.-United States v. West Virginia N. Rd. Co. et al., (1903) 125 Fed. Rep. 252; affirmed, 134 Fed. Rep. 198, 67 C. C. A. 220. Capacity of mine defined. 25. The capacity of a coal mine for purposes of car distribution is the amount of coal it is able to place in the railroad ears in a given time; and this will depend on its working places, the thickness of its coal seams, its switches, workmen, mine cars, and tipples, its general equipment, and its management.-United States v. West Virginia N. Rd. Co. et al., (1903) 125 Fed. Rep. 252, 256; affirmed, 134 Fed. Rep. 198, 67 C. C. A. 220. Presumption that damaged tipple will be repaired or replaced. 26. If, during an inspection of a mine for the purpose of reaching a basis for coal-car distribution among several mines, actual shipments as two units and the possible capacity as one. Complaint was made that this was unfair, in that actual shipments were given too great importance and the possible capacity of the mine too little, to the injury of new mines and to the advantage of those long established. Held, that no unfairness was apparent in the method of rating complained of.United States ex rel. Pitcairn Coal Co. v. Baltimore & O. R. Co., (1907) 154 Fed. Rep. 108. VI. RULES OF DISTRIBUTION. APPORTIONMENT BASED ON THE ORDER IN WHICH SHIPPERS APPLY, 28. UNDEVELOPED MINES, 29. ADDITIONAL ALLOTMENT TO ENCOUR- WHEN REFUSAL JUSTIFIED, 32. INDIVIDUAL CARS, 35, 36. · CONSUMERS' INDIVIDUAL CARS, 87. RAILWAY FUEL CARS, 38-40, APPORTIONMENT OF CARS FOR FRUIT "HOUSE RULE", "CROP-HOLDING RULE, 41. Apportionment based on the order in which shippers apply. 28. A rule of apportioning cars by giving the first car to the first shipper ordering and the second to the next shipper ordering, irrespective of the number of cars ordered, may, in times of great car shortage, be entirely just.-Richmond ElePere Marquette Rd. Co., rator Co. V. (1905) 10 I. C. C. R. 629. When refusal justified. 32. During 1902, the strike in the anthracite coal region of Pennsylvania created an unprecedented demand for bituminous coal in eastern markets, and abnormally high prices prevailed. A serious car shortage ensued which led defendant to distribute its available coal cars among regular operators who loaded with tipples from their own sidings, and to deny cars to complainant, a druggist at Irwin, Pa., who attempted to mine surface coal which, under normal conditions, could not be mined at a profit. Complainant's coal was loaded on sidings from 29. Complaint was made that defend- wagons. Tipple loading in train loads ant's practice, in distributing coal cars to facilitated the movement of coal 50 per mine operators on its line in times of car cent over loading from wagons. shortage, of making an arbitrary allot- that defendant's refusal to furnish com ment of cars to new and undeveloped plainant with cars was calculated to remines, subjected other mine owners to un-lieve the situation, hasten the delivery of due prejudice. Held, that a reasonable coal, and give the best service to the public; that such refusal was not unreasonable.-Thompson v. Pennsylvania Rd. Co., (1905) 10 Î. C. C. R. 640. Arbitrary allotment to new and undeveloped mines. arbitrary allotment in such case was not unlawful.-United States ex rel. Pitcairn Coal Co. v. Baltimore & O. R. Co., (1907) 154 Fed. Rep. 108. Additional allotment to encourage prompt unloading. 30. Defendant, to encourage prompt disebarge and return of its coal cars, put in force a rule by which all shippers or consignors, who during a month averaged not more than 5 day's detention of cars consigned to them at Curtis Bay, defendant's terminal at Baltimore at which coal was dumped from the cars into vessels for ocean transit, were granted a premium of 50 per cent additional to their ear supply for the next month. Held, that the administration of the rule did not result in unjust discrimination, in violation of the Act.-United States ex rel. Pitcairn Coal Co. v. Baltimore & O. R. Co., (1907) 154 Fed. Rep. 108. Method of loading by shipper as ground for refusal to furnish cars. 31. Defendant refused to furnish complainants with coal cars to be loaded from wagons while at the same time it furnished cars to other shippers to be loaded by tipple. Defendant justified such refusal on the ground that loading by tipple was more rapid, that coal in market was very scarce, and that the public would thereby be benefited by an increase in the tonnage of coal shipped. Held, that the interests of the public were best subserved by affording all shippers an equal opportunity to ship.-Glade Coal Co. v. Baltimore & O. Rd. Co., (1904) 10 I. C. C. R. 226. Held, Distribution of private or individual cars, foreign-railway fuel cars, and system fuel cars-In general. ators on defendant's line who owned in33. Prior to Jan. 1, 1906, mine operdividual coal cars' were permitted in times of car shortage to receive such cars, and in addition thereto their pro rata share of the cars owned and controlled by defendant, which pro rata share was based upon the output capacity of the several mines. On said date defendant adopted a rule whereby its own fuel cars, foreign railroad fuel cars, and individual cars, assigned to specified mines for loading, were charged against the capacity of the mines at which they were placed, the difference between the rated capacity of the mine and the capacity of cars so placed for loading being treated as the rated capacity on which all other cars were prorated. The object of the adoption of this rule was to place all shippers on an absolute equality as near as possible, and yet not discriminate against individual car owners, or those to whom cars were especially consigned for fuel. On complaint by an owner of individual cars that the rule unjustly discriminated against it in favor of mines which did not own individual cars, held, that the rule worked no unjust discrimination against the owners of individual cars.Logan Coal Co. v. Pennsylvania R. Co., (1907) 154 Fed. Rep. 497. 34. Coal cars on defendant's line were of three classes. 1. System cars, which included cars owned or controlled by defendant. 2. Foreign railway fuel cars, which included cars of foreign railroads specifically consigned to certain operators to be loaded by the operators with coal for the use of such foreign railroads in the operation of their roads. 3. Private cars, which included cars owned or leased by, or subject to the exclusive control of, particular operators. In making distribution of cars to the several mines along its line, defendant allotted the private cars to the owners or lessees thereof, and the foreign railway fuel cars to the coal companies to which such cars were consigned, the system cars being distributed among all the operators in proportion to the tonnage rating of their mines. Held, that this system of distribution resulted in unjust discrimination; that while the company owning or leasing private cars or receiving foreign railway fuel cars should be given full and exclusive use of such cars, it should not be given in addition thereto a division of the system cars except when its supply of private cars and of foreign railway fuel cars was less than its proportion of the total of available cars, including system cars, foreign railway fuel cars, and private cars.-Railroad Com. of Ohio v. Wheeling & L. E. Rd. Co., (1907) 12 I. C. C. R. 398. Individual cars. 35. The duty of a railroad company to allot cars without unjust discrimination cannot be altered by the furnishing of special cars to the railroad company by one shipper, to be used exclusively in transportation for that shipper, whether the cars are sold by the shipper to the railroad company on the installment plan, or title to them is retained by the shipper. In the former case the railroad company would be devoting rolling stock which it owns, or in which it is interested, to the. demands of one shipper to the exclusion of others similarly situated, which it may not do. In the latter case it would be renting its tracks or permitting them to be appropriated by one shipper to the detriment of others whom it should serve to the uttermost. In the stress of unusual business such special cars would have to be applied to the accommodation of all shippers alike.-United States v. Norfolk & W. Ry. Co., (1901) 109 Fed. Rep. 831. 36. Many coal companies operating on defendant's line in the Fairmont region in West Virginia had individual coal cars of their own. Defendant, in allotting coal cars to the different mines in times of car shortage, first deducted from the whole available supply of cars in the district the individual cars, and after giving such cars to their owners, distributed its own available equipment among all the mines on the basis of a fixed percentage for each mine. The relator, a coal mining company which had no individual cars, filed petition for mandamus, alleging that this system of distribution produced unreasonable preference in favor of the owners of individual cars. Held, that relator and those in like situation were subjected to unreasonable disadvantage by getting only a percentage of defendant's free equipment, after having first eliminated therefrom the individual cars; that while relator was entitled to have allotted to it its percentage of all of the available car supply equipment, whether of general or individual cars, in no case were the owners of the individual cars or those entitled to them by contract to be deprived of their exclusive use, but that the individual cars assigned by the owner to be loaded at a specified mine should be charged against such mine as part of its pro rata distribution of cars.-United States ex rel. Pitcairn Coal Co. v. Baltimore & O. R. Co., (1907) 154 Fed. Rep. 108. Consumers' individual cars. con 37. Complaint was made that defendant's practice, in distributing coal cars to mine operators on its line in times of car shortage, of not considering sumers' individual cars in computing the percentages of the mines to which such cars were sent, subjected other mine ownnot unlawful for defendant to refuse to ers to undue prejudice. Held, that it was charge such cars against the percentages of the mines to which they were sent.United States ex rel. Pitcairn Coal Co. v. Baltimore & O. K. Co., (1907) 154 Fed. Rep. 108. Railway fuel cars. 38. Complaint was made that defendant's practice, in distributing coal cars to mine operators on its line in times of car shortage, of not considering defendant's fuel cars in computing the percentages of the mines to which such cars were sent, subjected other mine owners to undue prejudice. Held, that it was not unjust discrimination for defendant to refuse to charge such cars against the percentages of the mines to which they were sent.-United States ex rel. Pitcairn Coal Co. v. Baltimore & O. R. Co., (1907) 154 Fed. Rep. 108. 39. In addition to a just distribution |