of coal ears among all the shippers at a held in the packing houses through inabilparticular coal field, a railroad company ity to obtain cars. The house rule, when distributed about 300 cars weekly, for rigidly enforced, tended to embarrass both fuel and not for traffic, in which distribu-shippers and carrier by drawing into tion plaintiff did not share because he refused to sell his coal to the railroad company on as favorable terms as those offered by other shippers. Held, that the action of the railroad company in so distributing the 300 cars was not an unjust discrimination against plaintiff.-United States v. Noriolk & W. Ry. Co., (1901) 109 Fed. Rep. 831.

40. 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 foreign railway fuel cars in computing the percentages of the mines to which such cars were sent, subjected other mine owners to undue prejudice. These cars were never available for commercial shipments, and the coal shipped in them was not counted as part of the shipments of the mine in arriving at its percentage rating. Held, that it was not unlawful 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.

Apportionment of cars for fruit-"House rule," "Crop-holding rule.”

houses traffic that could not be moved.
The crop-holding rule, when strictly fol-
lowed, tended to exclude from shipment
traffic offered and ready to move, and to
fix arbitrarily the equipment which might
be placed for a shipper irrespective of his
needs. Neither rule was satisfactory to
the carriers, and neither had been rigidly
applied. No reason appeared why the
jobber, who wished to market his fruit,
should be limited by a method of distribu-
tion which would give him no greater car
supply than a grower who did not wish to
sell his crop at the same time. Held, that
the whole situation was one which could
not be dealt with by any fixed, arbitrary
and inelastic rule; that the house rule was
not obnoxious to the Act.-California
Fruit Growers' Exchange et al. v. South-
ern Pac. Co., (1907) 12 I. C. C. R. 553.
VII. REMEDY FOR UNJUST DISCRIM-
INATION.
USUALLY FOUND IN ORDER FOR REPARA-
TION, 42.
MANDAMUS
ISSUE. 43.

- AUTHORITY OF COURT TO

GIST OF PROCEEDING, 44.

WHAT RELATOR MUST PLEAD AND PROVE, 45.

POWER OF COURT TO FIX PERCENTAGE OF CARS ΤΟ WHICH EACH SHIPPER IS ENTITLED, 46.

POWER OF COURT TO ACT ON OFFICERS OF CARRIERS, 47, 48.

PENDENCY OF ANOTHER MANDAMUS PROCEEDING, WHEN PLEADABLE IN ABATEMENT OF SECOND ACTION, 49.

Usually found in order for reparation.

42. Discrimination in furnishing cars is rarely a continuing offense which can be discontinued for the future under a regulating order couched in general terms and directing the carrier to cease and desist therefrom. The remedy, therefore, must generally be found in an order awarding reparation for the injury found to have been done.-Richmond Elevator Co. v. Pere Marquette Rd. Co., (1905) 10 I. C. C. R. 629.

41. Prior to April 12, 1907, defendant, in times of car shortage, apportioned cars among shippers of citrus fruit in southern California upon basis of the quantity of fruit each shipper had to ship for the entire season. This rule was called the "erop-holding rule." On said date defendant promulgated the "house rule," under which cars were distributed on basis of the amount of fruit in the packing houses, although, as interpreted, the rule applied to a fruit, whether packed or loose. Under the house rule a jobber or commission merchant who bought fruit upon speculation at time when cars were short could, by filling his packing house, secure a large proportion of available cars. To compete for cars with the jobber, the grower was compelled to pick his fruit Mandamus-Authority of Court to issue when it was not known whether cars would be available for its shipment. As fruit when once picked deteriorates rapidly, the growers favored the crop-holding rule which permitted them to preserve their fruit in the most practicable way-on the tree in the orchard. The house rule operated the same on both grower and job ber, both suffering loss when fruit was

writ.

43. The only authority for the exercise of jurisdiction by the Federal courts, at the relation of shippers, to issue writs of mandamus commanding common carriers to distribute their cars justly, is found in section 23 of the Act.-United States v. Norfolk & W. Ry. Co., (1905) 138 Fed. Rep. 849.

distribute coal cars without unjust dis- See " "Demurrage charges."
erimination, is pleadable in abatement of
a second action in the Circuit Court be-
tween the same parties, and with the same
matter in controversy.-United States v.
Norfolk & W. Ry. Co. et al., (1902) 114
Fed. Rep. 682.

Failure to refer to, in tariff of rates, see
Schedules or tariffs," 94.

CAR SHORTAGE.

See "Embargo."

Delay in furnishing cars in times of, see **Cars," 6.

Distribution of ears during period of, see "Car distribution."'

Causes-Remedies proposed.

Mixed carload rates, see "Rates,' 10011006.

CARRIAGES.

See "Buggies.''

Rule denying carload rate on, see "Rates," 990.

Atlanta, Ga., from Cincinnati, O.

1. Subject of car shortage in Northwest, on Pacific coast, and in Southwest, investigated by Commission in December, 19 6, and found on the whole to result not so much from actual shortage of cars as from congestion of traffic either at points of destination or at terminals where freight was transferred from one line to acother. The following remedies proposed: Restriction of reconsignment priv1. Rate of $1.07 per 100 pounds held ilege, either by imposition of a reasonunreasonable; that such rate ought not to able reconsignment charge or by limiting exceed $1 per 100 pounds.-James & Mayer time allowed on reconsignment. The pro- Buggy Co. v. Cincinnati, N. O. & T. P. vision of separate terminals outside cities Ry. Co. et al., (1891) 4 Í. C. C. R. 744, 3 at which freight could be held pending I. C. R. 682; petition to enforce order of determination by shipper as to destina- Commission denied, I. C. C. v. C. N. O. tion. Limitation of free time allowed con- & T. P. Ry. Co., 56 Fed. Rep. 925. signees for unloading. Proposed car clear-San Bernardino, Cal., from Chicago, Ill. ing house-this plan or some similar plan regarded with favor if carried out effciently. Increase of per diem charges to effect more prompt return of cars by connecting roads. Legislation governing the interchange of ears to prevent unreasonable appropriation by carriers of foreign equipment. Reciprocal car-demurrage law considered impracticable, unless supplemented by some other rule or law under which the originating carrier would be insured of prompt return of cars delivered by it to connections.-Re Car Shortage, etc., (1907) 12 I. C. C. R. 561.

CARETAKERS.

2. Rate on carriages, in carloads, of $2.96 per 100 pounds, held unlawful under section 4 of Act as compared with rate of $2.70 from same point through San Bernardino to Los Angeles.-San Bernardino Bd. of Trade v. Atchison, T. & S. F. Rd. Co. et al., (1890) 4 I. C. C. R. 104, 3 I. C. R. 138; petition to enforce order of Commission denied, I. C. C. v. Atchison, T. & S. F. Rd. Co., 50 Fed. Rep. 295. Social Circle, Ga., from Cincinnati, O.

3. Rate of $1.37 per 100 pounds, held unlawful under section 4 of Act as compared with rate of $1.07 from same point through Social Circle to Augusta, Ga.James & Mayer Buggy Co. v. Cincinnati, N. O. & T. P. Ry. Co. et al., (1891) 4 1. C.

Free passes in favor of, see "Free trans- C. R. 744, 3 I. C. R. 682; petition to enportation," 1, 8.

force order of Commission denied, I. C. C. v. Cincinnati, N. O. & T. P. Ry. Co., 56 Fed. Rep. 925; decree of Circuit Court reversed, 13 U. S. App. 730; 162 U. S. 184, 16 Sup. Ct. R. 700, 40 L. Ed. 935.

99 66

for violations of law by lessee road, see "Parties, 33, 34.

Obligations assumed by carrier, governed by common law as modified by Act, see Common law,'' 3, 4; "Act to regulate

commerce," 11.

Purchaser of railroad, when order of Commission binding on, see "Orders of commission,'' 7-9.

2-5.

"Asso

necting carriers;" "Consolidation of | Lessor carrier, as party defendant to suit carriers;" "Contract of shipment;" "Courts; "Contracts;" "Criminal prosecution; "Delay;' "Delivery at destination;' "Delivery to carrier;" "Demurrage charges; "Depots; "Discrimination; "'"Elevation;"'"'Embargo; 'Express companies;" "False billing; "Foreign railroads; "Free transportation;' "Injunction;" "Lien for charges; Limitation of liability;' "Refrigeration, duty of carrier to furnish, "Localities; ""Long and short haul see "Refrigeration, clause;" "Mandamus;" "Minimum State statute relating to reports by carcharges;" "Ocean carriers;" "Orders riers, when applicable to interstate carof Commission;' "Parties;' "Pas- riers, see State statutes," 6. sengers; "Pooling;" "Preference or Traffic association, legality of, see prejudice;" "Procedure;' "Rates;" ciations." 66 or concessions;"' 'Receiv ers; Reconsignment;' "Reconsignment charges;""" "Reduced-rate transportation; 'Refrigeration;' 'Refrig- INTERSTATE CARRIERS, 1, 2. eration charges; 'Reparation;""Re- STATE COMMON CARRIER OPERATING UNDER 'RoutARRANGEMENT ports by carriers;" "Routes; FOR CONTINCOUS CARRIAGE OF INTERSTATE TRAFing;" "Schedules or tariffs;" "StorFIC, 3-7. age;' "Storage charges;" "Switch connections; "Terminal charges;" "Terminal facilities; "Terminal railroad;" "Through routes;"'"Tickets;' "Tracks; schedules;" "Trains; "Transfer charges;' Transportation;" "Transit privi

Rebates

66

99 66

99 66

"Train

leges; Underbilling;" charge; "Weights.

Act, right of carriers to construe, see
"Act to regulate commerce," 23.
Books, papers and documents, production
of, for use as evidence, see "Evidence."
Business of carrier, right to manage, see
"Act to regulate commerce," 12-14, 29.
Business

methods, right of carrier to adopt, see "Act to regulate commerce. Carrier as dealer in commodities transported, see "Discrimination," 100-109. Competition between carriers, Act not intended to prevent, see "Act to regulate commerce," 18-21.

Cotton, right of carrier to compress, see
"Compressing cotton."
Embargo, exception in favor of supplies
for carrier, see "Embargo,' 3.
Equipment,

lease of, see "Cars;

"Lease. Extensions, right of carrier to make, see "Extensions.

Immigrant traffic, apportionment of, between carriers, see " 'Immigrants,' 2. Interchange of passes, see Free transportation," 20.

Interchange of traffic, see "Connecting carriers."

Lease of road, liability of lessor for ille gal practices, see "Lease," 3, 4.

I. CARRIERS SUBJECT TO ACT.

EVIDENCE OF ARRANGEMENT FOR CONTINUOUS CARRIAGE, 8-20.

-TERMINAL OR BELT RAILROAD, 21.
STATE COMMON CARRIER OPERATING
UNDER ARRANGEMENT FOR CONTIN-
UOUS CARRIAGE OF INTERSTATE TRAF-
FIC TO OR FROM ONE POINT ON ITS
LINE, WHILE REFUSING TO SO OPER-
ATE WITH RESPECT TO ANOTHER

POINT ON ITS LINE, 22-25.
CARRIER BY WATER OPERATING UNDER
ARRANGEMENT WITH RAIL CARRIER
FOR CONTINUOUS CARRIAGE OR SHIP-
MENT, 26, 27.

FAST FREIGHT LINE, 28.

CARRIERS OF PARCELS OR PACKAGES,
29, 30.

STREET RAILWAY ENGAGED IN INTER-
STATE TRANSPORTATION, 31.

RECEIVERS OF RAILROAD COMPANIES, 32.
BRIDGES, FERRIES, SWITCHES, AND TER-
MINAL ROADS, 33.
PRIVATE STABLE-CAR COMPANY, 34.
NORTHERN PACIFIC RAILROAD, 35, 36.
FOREIGN RAILROADS, 37, 38.

Interstate carriers.

1. Whenever an article destined to a place without the state is started in transit, it becomes the subject of interstate commerce, and the carriers employed in the transportation thereof, although none of them may pass from one state to another, are subject, as instruments of such commerce, to national legislation and control. -Ex parte Koehler, (1887) 30 Fed. Rep. 867.

2. Where a corporation engages in interstate commerce, it thereby subjects itself to all the regulative provisions concerning such commerce constitutionally prescribed by Congress.-Cassatt et al. v.

State common carrier operating under arrangement for continuous carriage of

Mitchell Coal & Coke Co., (1907) 150 Fed. | der through bills of lading will be held Rep. 32, 45, — C. C. A. -. to have subjected its line to "a common control, management, or arrangement for a continuous carriage or shipment" within the meaning of the Act, although such service performed by it.-Louisville & N. carrier charges its full local rates for the Rd. Co. v. Behlmer, 175 U. S. 650, 20 Sup. Ct. R. 209, 44 L. Ed. 310.

interstate traffic.

3. A short road wholly within a single state, which is made use of by interstate carriers as a means of conducting interstate traffic, is subject to the provisions

of the Act.-Heck et al. v. East Tenn. V.

▲ G. Ry. Co. et al., (1888) 1 I. C. C. R. 495, 1 I. C. R. 775.

9. Where a state common carrier restate to a certain point on its line, under ceives freight in transit from another Under the rule that commerce in a conventional division of the charges, it eludes all the agencies employed in it, thereby subjects its road to an arrangewhen a carrier located and operated with ment for a continuous carriage or shipin a single state engages in interstatement within the meaning of the Act, and transportation, it becomes an instrument admits the power of the Commission to of commerce among the States, and is control foreign traffic to other points on subject for all the purposes of such com- Co. v. Interstate Commerce Commission, its road.-Cincinnati, N. O. & T. P. Ry. merce to the provisions of the Act.-Mattingly v. Pennsylvania Co., (1890) 3 I. C. (1896) 162 U. S. 184, 16 Sup. Ct. R. 700, C. R. 592, 2 I. C. R. 806. 40 L. Ed. 935, affirming I. C. C. v. Cincinnati, N. O. & T. P. Ry. Co., 13 U. S. App. Same case, 56 Fed. Rep. 925, 4 I. C. C. R. 744, 3 I. C. R. 682.

5. Where carriers have invited interstate traffic over their roads, which is intended to be continuous, and have arranged their business and put it in proper order so that the continuity of shipments shall be preserved, such business is within the scope of the Act.-Boston Fruit & Produce Exchange v. New York & N. E. Pd. Co. et al., (1891) 4 I. C. C. R. 664, 677,

3 L C. R. 493.

730.

10. Where a state common carrier ac

cepts interstate freight under a through itself to the provisions of the Interstate rate and bill of lading, it thereby subjects Commerce Act with respect to the carriage Clark, (1893) 4 Tex. Civ. App. 611, 23 of such freight.-Texas & P. Ry. Co. v.

S. W. 698.

11. The receipt successively by two or more carriers for transportation, of traffic shipped under through bills of lading for sent to a common arrangement for such continuous carriage over their lines, is asthe meaning of section 1 of the Act, and continuous carriage or shipment within them is not necessary to bring such transprevious formal arrangement between

6. A railroad company whose road is wholly within a single state, and which voluntarily engages as a common carrier in interstate eommerce by making an arrangement for a continuous carriage or shipment of goods, is subject, so far as such traffic is concerned, to the provisions of the Act.-Pennsylvania Millers' etc. Assn. v. Philadelphia & R. Ry. Co. et al., (1900) 8 I. C. C. R. 531, 549. 7. The line of the W. railroad com-portation under the terms of the law.pany, which was wholly within a single Railroad Commission of Georgia v. Clyde state, connected at a certain point with Steamship Co. et al., (1892), 5 I. C. C. R. the lines of the A. and C. railroad com- 324, 369, 4 I. C. R. 120. panies. The W. company accepted interstate freight from or destined to the A. company, for which it charged its full local rate, while on similar freight accepted from or destined to the C. company, it charged a much lower rate. Held, that the W. company, by accepting such interstate freight, subjected its line to the provisions of the act to regulate commerce-Augusta S. Rd. Co. v. Wrights ville Rd. Co., (1896) 74 Fed Rep. 522.

-Evidence of arrangement for continuous carriage.

8. A state common carrier which accepts and transports interstate traffic un

12. Where two or more roads form a in different states, and bill and carry incontinuous connecting line between points terstate traffic through to certain stations on the last road forming such line, neither the roads together nor any one of them can evade the obligations of the Act by declaring that, as to such traffic destined to such stations on such terminal road, it is a local carrier.-Railroad Commission of

Georgia v. Clyde Steamship Co. et al., (1892) 5 I. C. Č. R. 324, 370, 4 I. C. R. 120.

13. The receipt, forwarding, and delivery of interstate traffic by connecting car riers, held to establish the existence of a common arrangement between the carriers