plaining point is not necessarily an intermediate one within the meaning of the fourth section when the traffic to the more remote point moves by a route not usually taken by traffic to the complaining point.50 Neither does a carrier violate the Act when it maintains a joint raillake-and-rail rate higher than the rail-and-lake rate to the more distant point if the lake boats do not stop at the complaining point.51 On the same principle it was held that there was no violation of section 4 when a lesser rate was charged on bananas from New Orleans to Burlington, Iowa, than to Kansas City, Mo., and intermediate points, since the joint rate quoted by way of Kansas City was merely a "paper" rate on which traffic did not move, the bananas destined for Burlington being shipped by way of St. Louis. So also a merely theoretical or paper rate, not used and unknown to the defendant until casually discovered, will not be accepted as affording a just basis for an order for reparation on shipments made to an intermediate point at a slightly higher rate. The actual facts of traffic rather than the relative physical position of two points is the test as to whether one is intermediate as regards the other. But on the other hand it has been held in a State court interpreting a similar statute that where a railroad company charges higher rates for carrying freight a less distance than its published rates for carrying it a greater distance in the same direction over the same road, it violates the law, even though it does not actually carry any freight the greater distance.54 52 § 787. Application of the Fourth Section. It should be noted that the long-and-short haul rule of 50 Merchants' Freight Bureau of Little Rock v. Mo. Pac. Ry., 21 I. C. C. 573. 51 City of Ashland v. N. Y. C. & H. R. Ry., 20 I. C. C. 2. 52 Topeka Banana Dealers' Ass'n v. St. L. & S. F. Ry., 11 I. C. C. 620. 53 Missouri & Kansas Shippers' Ass'n v. M., K. & T. Ry., 12 I. C. C. 483. 54 Seawell v. Kansas City, F. S. & M. Ry., 119 Mo. 222, 24 S. W. 1002. Compare McGrew v. Missouri P. Ry., 177 Mo. 533, 76 S. W. 995. 57 the fourth section applies only to traffic over the same line or route in the same direction. If there are two lines between two points, one direct and the other circuitous,can an intermediate point on the direct line complain of a lower rate by the circuitous line? The Commission finds little merit in the contention that lower rates should be made over circuitous lines.55 Traffic should be allowed to seek its natural avenues and should not be forced into roundabout and indirect routes, 56 but nevertheless, discrimination based on this factor has been sustained. What is a circuitous line is a question of fact to be determined in each case, but the Commission has held that a line 103 miles or 15 per cent longer than the direct line is a circuitous line.58 Whether a haul is longer or shorter should be determined by the length of the shortest route in each case. 59 When a point has shown that it is intermediate within the meaning of the fourth section, it must then show that it is subject to a higher rate than a more distant point. This is a simple question of mathematics, but in the process comparison may be made only between rates of the same kind, that is, import rates are to be compared only with import rates, export rates with export rates, transshipment rates with transshipment rates, proportional rates with proportional rates, and excursion, commutation, mileage, party rate and half fares are to be compared only with fares of the same character.60 And where two connecting carriers have united in a joint tariff, Rates from 55 Transcontinental Group F., 28 I. C. C. 1. 50 Rates on Cotton Seed and Its Products, 28 I. C. C. 219. 57 McCullough v. L. & N. Ry., 25 I. C. C. 48; In re Lumber Rates, 25 I. C. C. 50; Edwards & Bradford Lumber Co. v. C., B. & Q. Ry., 25 I. C. C. 93. 58 In re Rates on Salt, 24 I. C. C. 192; Edwards & Bradford Lumber Co. v. C., B. & Q. Ry., 25 I. C. C. 93. 59 Ulric v. L. S. & M. S. Ry., 9 I. C. C. Rep. 495. See also Hill v. N. C. & St. L. Ry., 6 I. C. C. Rep. 343; Milwaukee Chamber of Commerce v. C., M. & St. P. Ry., 7 I. C. C. Rep. 481. 60 Baltimore Chamber of Commerce v. B. & O. Ry., 22 I. C. C. 596; Southern Illinois Millers' Ass'n v. L. & N. Ry., 23 I. C. C. 672; In re Lumber Rates, 25 I. C. C. 50; Conference Rulings, 299b, 304a, 310. they form for the connected roads a new and independent line, and the through tariff on the joint line is not the standard by which the separate tariff of either company is to be measured in determining whether such separate tariff violates the long-and-short-haul clause. But in case of suit brought all participating carriers should be joined.": 61 62 § 788. Principles governing deviation from the Fourth Section. The Act, both in its original form and in the amendment of 1910, recognized the necessity of making exceptions to a rigid long-and-short-haul rule, and accordingly the Commission was empowered to authorize a less charge for a long haul than for a shorter one included in it. The obvious intent of Congress was defeated, however, by the unfortunate phrasing of the original Act. The clause "under substantially similar circumstances and conditions" was so construed as to deprive the Commission of the most important part of its power in the matter. By the amendment of 1910 this clause was removed from the Act, and there can now be no rate discrimination in favor of a more distant or against an intermediate point unless it is authorized by the Commission. The Act itself gives no hint as to what considerations will justify such exceptions. The whole matter is left to the discretion of the Commission subject of course to review by the courts.63 But even in its original form the exceptions made by the carriers were subject to review by the Commission and by the courts, and this body of decisions, which is quite considerable in amount, affords much light as to the principles by which the Commission is guided. Each case, however, 61 Chicago & N. W. Ry. v. Osborne, 52 Fed. 912, 3 C. C. A. 347, reversing Osborne v. Chicago & N. W. Ry., 48 Fed. 49, and Junod v. Chicago & N. W. Ry., 47 Fed. 290; United States v. Mellen, 53 Fed. 229; Imperial Coal Co. v. P. & L. E. Ry., 2 Int. Com. 62 Moise Brothers' Co. v. C., R. I. & P. Ry., 16 I. C. C. 550. 63 Intermountain Rate Cases, 234 U. S. 476, 58 L. ed. 1408, 34 Sup. Ct. 986. is in a sense a law unto itself, and must stand upon its own facts. No situation can furnish an exact precedent for another.64 In passing upon applications for relief from the operation of the fourth section, the Commission must take into consideration the whole situation from the standpoint of both carrier and shipper, 65 and while the existence of a wrong cannot of itself justify its continuance, the Commission must nevertheless be guided to some extent by conditions as it finds them.66 While the clause as to dissimilarity of circumstances and conditions was omitted from the Act by the amendment of 1910, it is on the ground of such dissimilarity that the Commission usually grants exemption from the rule of section 4, but in so doing the Commission considers not only whether the circumstances and conditions at the two points are unlike, but also whether the dissimilarity justifies a deviation from the long-and-short-haul clause.67 The burden of showing this is on the carrier,68 and if it presents no defense for its violation of the fourth section, it must remove the discriminations complained of.69 § 789. Recognition of carrier's right to relief. The Commission now views discrimination between intermediate and long-distance points more leniently than it did before the adoption of the amendment of 1910. Formerly it regarded with disfavor the maintenance of a lower rate for a longer haul than for a shorter one included within the longer, and the circumstances and conditions obtaining at the more distant point which were relied upon to justify it must not only be clearly shown to exist, but 64 Bluefield Shippers' Ass'n v. N. & W. Ry., 22 I. C. C. 519. 65 City of Spokane v. No. Pac. Ry., 21 I. C. C. 400. 66 Bluefield Shippers' Ass'n v. N. & W. Ry., 22 I. C. C. 519. 67 Heileman Brewing Co. v. C., M. & St. P. Ry., 16 I. C. C. 396; City of Spokane v. No. Pac. Ry., 21 I. C. C. 400. 68 Carstens Packing Co. v. Oregon Short Line Ry., 17 I. C. C. 324; Transcontinental Commodity Rates, West Bound, 26 I. C. C. 456. 69 Commercial Club of Duluth v. B. & O. Ry., 27 I. C. C. 639. 70 also to exercise a potent or controlling influence in compelling the lower rate. But it now holds that its power is not to be exercised arbitrarily, and that it is under a duty to permit a higher intermediate charge whenever the resulting rates will not contravene the Act because of injustice, unreasonableness, or undue discrimination.71 It is the function of the Commission to ascertain whether the facts set up by the carrier in justification of its discriminatory rates really exist. If they do, the Commission recognizes that the carrier may claim relief from the fourth section as of right. Even the fact that adherence to the fourth section would entail only a slight loss of revenue to the carrier is held to be no reason for denying it relief.72 In determining this question it takes into account both the prejudice against the intermediate point and the rate which it is required to pay.73 It must also appear that the long-distance rate was not voluntarily reduced by the carrier, but was forced down.74 If the applicant for relief controls the long-distance rate and can determine what effect shall be given to conditions which are supposed to justify the reduction at the farther point, then the Commission may also decide whether the carrier is justified in giving to those conditions the effect which it does, and may fix the extent to which those conditions may influence the carrier's rates.75 § 790. Conditions justifying relief from the Fourth Section. Whenever a carrier discriminates in favor of a point in 70 Bovaird Supply Co. v. A., T. & S. F. Ry., 11 I. C. C. 56. 71 Railroad Commission of Nevada v. So. Pac. Ry., 21 I. C. C. 329; Bluefield Shippers' Ass'n v. N. & W. Ry., 22 I. C. C. 519. That it is the duty of the Commission to allow higher intermediate rates when it would not result in a violation of any other section of the Act is also the view of the courts. A., T. & S. F. Ry. v. United States, 191 Fed. 856. 50. 72 In re Lumber Rates, 25 I. C. C. 73 In re Application of Southern Pacific Co., 22 I. C. C. 366. 74 Grand Junction Chamber of Commerce v. D. & R. G. Ry., 23 I. C. C. 115. 75 Bluefield Shippers' Ass'n v. N. & W. Ry., 22 I. C. C. 519; Bowling |