peculiar conditions always subject to change, and extremely difficult to regulate in any practical way. Most of the requirements have been purely local, seeking to limit the speed of trains operating at grade in congested urban centers, in the interest of the safety of the resident population. But a standard of speed performance is very difficult to fix because of the necessity to meet operating needs at a particular time. Nevertheless, live stock growers in Nebraska, seeking to speed up live stock shipments, a class of movement in which time is frequently an important factor, both in maintaining quality and "making" a particular market, induced the same Nebraska legislature of 1905, which had provided caretakers for caretakers, to enact a statute providing for the maintenance of a minimum speed on live stock trains. This was fixed at eighteen miles per hour on main lines and fourteen miles per hour on branch lines. Shippers were given a right to damages for violation of the statute at the rate of $10 per car for each hour of delay.1

§ 7. The states have also frequently undertaken, through the medium of their railroad commissions, to prevent abandonment of train service once established. In some states, passenger trains may not be withdrawn without permission of the state authorities. The Supreme Court has on occasion upheld the validity of state action requiring the running of trains in addition to those provided by the carriers. But the courts will scrutinize such orders, when they are attacked, to determine whether they are so arbitrary and unreasonable as to prevent the carrier from earning a fair return on its property. On this ground a recent order of the Mississippi Commission requiring the restoration of six trains a day on a branch of the Mobile & Ohio Railroad was declared void.3

This discussion of regulation of train service shows that there have been comparatively few encroachments upon the railroad managers in this field. Doubtless the technical nature of the

1 The Nebraska Supreme Court upheld the constitutionality of this statute. Cram v. C. B. & Q. R. R. Co., 84 Nebr. 607. It was, however, later modified and made less burdensome. Inasmuch as it failed to exempt the carrier from liability in the event of unavoidable accident and also because it affected interstate commerce directly, it is doubtful whether it would have stood the test of the Federal courts.

2 A. C. L. R. R. Co. v. N. C. Corp. Com., 206 U. S. 1. Miss. R. R. Com. v. M. & O. R. R. Co., 244 U. S. 388.

problems involved will continue to slow up aggressive regulation in this direction. Unless the abuses of private control become very great, or there is a great revulsion of feeling against private initiative, the operation of the freight and passenger trains will doubtless be left to those officers who are selected by the corporations to assume this responsibility.

CHAPTER XVI

CAR SUPPLY AND CAR DISTRIBUTION

Section 1. Car Shortage, 245-Sec. 2. The Per Diem Agreement, 249-Sec. 3. Specialized Equipment, 250-Sec. 4. Car Distribution, 252-Sec. 5. Assigned Car Rule, 254-Sec. 6. Duties of Shippers, 257-Sec. 7. Car Peddling, 259.

§ 1. The car service provisions of the Interstate Commerce Act are primarily of emergency importance. Always a supply of cars is prerequisite to the carrying of goods, and the obligation to furnish cars is, in usual times and for most classes of traffic, promptly met. It has been periods of car shortage which have given rise to dispute and litigation, disclosing problems which regulation has attempted to anticipate and minimize. Complaints of discrimination and preference in the distribution of available cars during car shortages have compelled attention. The pressure upon railroad managers, especially from large shippers, was frequently too much to withstand. Some unfortunate occurrences, involving even petty bribery, have focused attention upon the possibility of an evil which always became most acute when equality of treatment was least easy to attain. But is not a condition of car shortage incompatible with performance of the obligation to furnish service? Can there be a condition of car shortage if the railroad possesses an adequate supply of cars? The contradiction in terms is apparent; and yet, as a practical matter, the contradiction is one only in terms. So long as the business cycle, the swing of general business through prosperity to depression and back to prosperity again, results in alternate periods of traffic plenty and scarcity, so long must the railroads face a certainty of car shortage and car surplus. In addition, seasonal peaks due to crop movement, demands for coal varying with hard and mild winters, and seasonal swings in general business, must be recognized. Freight yards, during 1921 and the first eight months of 1922, were filled with freight

PLATE 19.-Car Surplus and Car Shortage, 1919-1922. Based on American Railway Association, Information Bulletin No. 41, July 27,

1922

cars, rusty and disconsolate, idle because of a lack of demand for railroad service. Two years before, these cars were part of a supply which had proved inadequate to meet demands.

The service obligation might be interpreted to require that the carriers have on hand a sufficient supply of cars to meet even the maximum anticipated peak load. Thus far it has not been

so interpreted, and until this has been done, it is grossly unfair to criticize railroad managers for recurring periods of temporary car shortage. Public policy may decide to require an anticipation of peak demand, but it cannot so decide without appraising the relative economic loss from car shortage as compared with the loss when capital is tied up in idle equipment.1

In Interstate Commerce Commission v. Illinois Central Railroad Company, the Supreme Court said:

"Notwithstanding full performance by railway carriers of the duty to have a legally sufficient supply of coal cars, it is conceded that unforeseen periods arise when a shortage of such cars to meet the demand for the transportation of coal takes place, because, among other things, of the wide fluctuation between the demands for the transportation of bituminous coal at different and uncertain periods; the large number of loaded coal cars delivered by a carrier beyond its own line for transportation over other roads, consequent upon the fact that the coal produced at a particular point is normally distributed for consumption over an extensive area; and because the cars thus parted with are subject to longer detentions than usually obtain in the case of shipments of other articles, owing to the fact that bituminous coal is often shipped by mining operators to distant points, to be sold after arrival, and is hence held at the terminal points awaiting sale, or because, owing to the cost of handling coal, and the difficulty of storing such coal, the car in which it is shipped is often used by the shipper or purchaser at the terminal points as a convenient means of storage, or as an instrument for delivery without the expense of breaking bulk, to other and distant points."

Certainly the general attitude of the law is that the obligation to furnish cars is only a relative obligation after all. It is the obligation to furnish a supply of cars adequate to meet the usual

The Joint Commission of Agricultural Inquiry discusses the problem of distribution of cars for grain loading in its report:

"The grain-originating railroads generally endeavor to assemble a supply of suitable box cars before the grain is ready to move. This is accomplished by assembling their own cars, as well as such suitable foreign equipment as may be found upon the line; and generally the supply thus assembled is sufficient to move a very considerable quantity of grain. Inevitably, however, because of the slow return movement by connecting lines, a shortage develops in the grain-originating territory before a large part of the grain has been moved . . . A shortage of box cars is much more pronounced in the grain-shipping months of September, October, and November; and in no year of record have orders for cars been fully supplied during these months." Report of the Joint Commission of Agricultural Inquiry: Transportation, p. 262.

2215 U. S. 452, 460,