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through rate named herein, the absolute and unqualified right of routing beyond its own terminal is reserved to the initial carrier giving the guaranty.' This is in effect a condition upon which the joint through rates are offered, and I perceive no good reason why such a condition may not be lawfully imposed. Connecting carriers are not required to form through routes or establish joint rates. They do so only by voluntary action. They are free to make such arrangements with each other and to discontinue them as and when they see fit. No law compels these privileges to be afforded or prevents their withdrawal. Since through routes and joint rates are wholly in the discretion of the carriers, both as to their establishment and termination, why may they not be offered on condition that the initial carrier shall control the routing?

“The Common Law doctrine upon this point appears to be well settled.

"At Common Law a carrier is not bound to carry except on his own line, and we think it quite clear that if he contracts to go beyond he may, in the absence of statutory regulations to the contrary, determine for himself what agencies he will employ. His contract is equivalent to an extension of his line for the purposes of the contract, and if he holds himself out as a carrier beyond the line, so that he may be required to carry in that way for all alike, he may nevertheless confine himself in carrying to the particular route he chooses to use.'

The sole ground, apparently, upon which the conclusion of my colleagues rests is that the common-law rule has been changed by the Sixth section of the Act to regulate commerce. I am unable to accept such a construction of that section. It certainly contains no express limitation upon the right otherwise concededly enjoyed by the carrier, nor do I find in its provisions anything which takes away that right by implication. For aught I can see, the exercise of the right is entirely consistent with the due performance of every obligation which the Sixth section imposes.

“In my judgment it is technical, if not inaccurate, to say that, if the carrier as a matter of law may control the routing, 'then a route or tariff may be available to one shipper but not to another, and open one minute to a shipper but closed the next.' The tariff, that is, the rate, between any named points is all the while open and available to every shipper. Carriage to a given destination is continuously offered to all, and for the same charge. There is no granting to one person of a rate to a place and at the same time refusing to another person the same rate to the same place. Equal or equivalent service at equal cost is constantly at the disposal of all who desire it. True, the initial carrier selects the agency beyond its own line for completing the service, but how does that abridge any right which the regulating statute gives to the shipper?

“Of course the carrier must exercise the right of routing in such way as to avoid discrimination between different shippers. That goes without saying. And it is a significant fact in this connection that it was not alleged in the complaints, proved at the hearing or claimed in argument that any actual discrimination between shippers had resulted from the control of the routing by the defendant carriers. This at least shows that it is practicable for carriers to comply with the primary requirements of the Act, which enjoin equality of treatment to all shippers, and at the same time, in cases like the one under consideration, exercise the right of routing traffic over connecting lines. To say that the condition contained in these tariffs cannot be enforced without unjust and unreasonable discrimination is to contradict the undisputed testimony in this case and assert a result which concededly has not occurred.


Disconnected from the privilege of diversion, it is not perceived that the legitimate value to the shipper of the right of routing is important. That right is important to the carrier; and this we may properly take into account in deciding to which of them the right belongs.

"As the question turns upon the construction of a statute, we may well consider the bearing of either view upon the general purposes of the Act and the public interests involved. This suggests certain facts which seem to me highly persuasive. Prior to January 1, 1900, the shippers were allowed to route this traffic according to their own pleasure. During that time they secured large sums in rebates which were paid by the refrigerator companies and by eastern connections of the initial carriers. One of these complainants received from this illicit source in the years 1895, 1896, 1898 and 1899 nearly $175,000.00. The amount received in 1897 was not ascertained, but it presumably equaled the average of the four years named. When routing was denied to the shippers, on January 1, 1900, these rebates entirely ceased and have not since been obtained. No explanation was offered to modify the natural inference from these admitted facts. They illumine the case beyond the need of comment. Under routing by the shippers the law against rate-cutting was flagrantly disregarded; under routing by the carriers this law has been observed. In my judgment the Commission should not seek to enforce a rule of conduct which, as experience shows, may aid illegal practices, unless clearly convinced that the provision in question so requires. If the Sixth section permits a construction, as I am confident it does, which lessens inducement and opportunity for offensive wrongdoing, that construction should be adopted. And if the Commission has any discretion in the premises, as I think it has, its discretion ought not to be exercised in favor of the confessed beneficiaries of criminal transactions.

“It is stated in the prevailing report that a tonnage pool of this traffic was established as between the connecting carriers, and that the defendants so controlled the routing as to effect a violation of the anti-pooling section of the Act. A careful examination of the evidence fails to convince me that there is any substantial basis for this conclusion. To my mind the inference is not warranted by the testimony. Indeed, this charge seems rather inconsistent with the finding that the actual routing was generally according to the request of the shippers. If in most instances, as is admitted, this traffic was carried by the route selected by the shipper, it is difficult to see how the connecting carriers were at the same time 'pooling' it in violation of the Fifth section. * * Apart from other considerations, I am of opinion that control of routing by the carrier tends on the whole to public advantage. The more extensively through routes are formed by connecting lines, the wider and more general the movement of traffic under through rates, the greater the benefit—other things being equal—to both producer and consumer. Indeed, the public interest goes, as was said by the Commission in its Second Annual report to the Congress, to the establishment of such relations among the managers of roads as will lead to the extension of their traffic arrangements with mutual responsibility just as far as may be possible, so that the public may have in the service performed all the benefits and conveniences that might be expected to follow from general federation.'

“Since these desirable results depend upon voluntary association, and since the inducement to the carriers to unite their facilities must to a great extent come from reciprocal dealings and an equitable interchange of business, it would seem that the control of routing is quite essential to the purposes they have in view, and the mutual interest which prompts them to co-operate. *

"It seems to me that the tendency of the principle for which complainants contend is against the legitimate extension of through routes and other forms of lawful association, to say nothing of the opportunity it may afford for prohibited practices. And if denying to the carrier the right in question should have the effect, as plainly it might, of reducing the number of available routes, not only for orange shipments but for the movement of traffic generally, I should regard the result as decidedly unfortunate. Therefore, without amplifying the argument, on grounds of public policy, and having reference to the greatest public benefit, including observance of the law in other respects, I hold that

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