§ 814. Terminal and transit charges.

84

The rates which carriers are required by the Act to publish, file, and adhere to without deviation, cover not merely the carriage, but services rendered in receiving and delivering property as well.83 The schedule should state, among other terminal charges, the rules and regulations, if any, of the carrier in relation to storage.8 If free storage facilities are allowed, the schedule should so state.85 So when charges for refrigeration are applied in the transportation of perishable freight, such charges should be published and followed as all other charges for transportation are published and observed.86 Incidental service performed by carriers at transshipment ports, such as dumping and trimming or leveling, should be covered by tariff provisions and filed with the Commission.8 87 And any charges by carriers for readjusting loads of piling or poles, made necessary by shifting, improper loading, or heavy grades, must be provided for by proper tariff rules.88 The terminal service given at

local stations must be published, and it must be plainly indicated which are free-delivery stations.89 Demurrage is not required to be paid unless the tariff so provides.90 According to these fundamental principles, penalties for delay cannot be imposed without tariff authority.91 And, generally speaking, when rates are filed and published, carriers must abide thereby, and no allowances of any kind not specified in tariffs can lawfully be paid.92

83 Phelps v. Texas & P. Ry., 4 Int. & Refrigeration, 11 I. C. C. Rep. Com. Rep. 363, 6 I. C. C. Rep. 36.

84 Pennsylvania Millers' State Ass'n v. Philadelphia & R. R. R., 8 I. C. C. Rep. 531; Blackman v. Southern Ry., 10 I. C. C. Rep. 352.

85 American Warehousemen's Ass'n v. Illinois Central R. R., 7 Int. Com. Rep. 556.

86 Re Transportation of Fruit, 10 I. C. C. Rep. 360; Blackman v. Southern Ry., 10 I. C. C. Rep. 352; In re Charges for Transportation

129.

87 New England C. & C. Co. v. N. & W. Ry. Co., 22 I. C. C. R. 398. 88 California Pole & Piling Co. v. S. P. Co., 22 I. C. C. 507.

89 In re Express Rates, 24 I. C. C. 380.

90 Crescent Coal & Mining Co. v. B. & O. R. R., 20 I. C. C. 559. 91 Crutchfield & Woolfolk v. S. P., 24 I. C. C. 651.

92 La Salle & B. County R. Co. v.

§ 815. Rules and regulations.

Rules or regulations in any wise changing, affecting, or determining any part of the aggregate of a carrier's rates, fares, or charges must be shown separately upon the posted schedules. Any such rules or regulations promulgated in circulars issued independently of such schedules are not lawfully in force.93 The rates charged for the diversion of cars must be published.94 If stop-over privileges are granted for any purpose, all the facts and circumstances connected therewith should be clearly stated in the published tariff, so that the public generally may enjoy their benefits.95 So where cotton is allowed a stopoff privilege for the purpose of grading and compressing, this forms part of the service covered by the rate, and should be specified in the published tariffs." Where there is tariff authority, it is no violation of Act to require validation of limited excursion tickets, and to charge validation fee therefor.97 The Commission requires that the carrier should publish, or post for convenient inspection, at frequent and regular intervals, the ratings of the various mines and the car tonnage.98 Whatever rules prescribing maximum and minimum carload weights there may be found necessary to impose, must be posted.99 In one proceeding it appeared that defendant instructed its agents to disregard the regular published tariff rates, and to charge a lower combination rate when less than tariff rates were in force at other stations on its line. It was held that this practice was unlawful, as any rule would be which was not in compliance with the requirements of the

Chicago & N. W. R. Co., 11 I. C. C. 610.

93 Suffern v. Indiana, D. & W. Ry., 7 I. C. C. Rep. 255.

94 American Warehousemen's Ass'n v. Illinois Central R. R., 7 I. C. C. Rep. 556.

95 In re Rates and Practices, Mobile & O. Ry., 9 I. C. C. Rep. 373.

96 Re Alleged Unlawful Rates, 8 I. C. C. Rep. 121.

97 Riter v. O. S. L. R. R., 19 I. C. C. R. 443.

98 Royal Coal & Coke Co. v. Southern Ry., 13 I. C. C. 440.

99 Suffern v. Indiana, D. & W. Ry., 7 I. C. C. Rep. 255.

Act. In a later case it was said that no objection exists to providing in a tariff that, when a consignee has neglected to unload shipment within the free time provided in the carrier's demurrage rule, the carrier may unload it. And it was said that when this is done a charge will be assessed therefor.2

§ 816. What constitutes sufficient publication.

4

3

The provisions of the law are not complied with by posting a notice stating that tariffs may be inspected upon application to the carrier's agent. Whatever the practical difficulties in arranging matters so that a shipper may at all times have access to schedules, the law must be observed. The Act requires publication and maintenance of definite transportation charges; and it lays upon carriers the duty to publish and file rates applicable to interstate traffic in which they participate." Publication consists in promulgating and distributing the tariff in printed form preparatory to putting it into effect; and it is a step in establishing rates which cannot be dispensed with. And this general publication is constructive notice, in that all concerned are affected thereby in regard to all matters pertaining to the transportation. The fact that a shipper is not given personal notice of the promulgation of a carrier's demurrage regulations neither vitiates the latter's right nor lessens its duty to impose demurrage charges incurred under the rules contained in its lawful tariff.10 A carrier cannot excuse the collection of an unpublished charge for transferring goods by proof that it had a rule

1 Spillers v. Louisville & N. R. R., 8 Int. Com. Rep. 364.

2 Schulz-Hansen Co. v. S. P. Co., 18 I. C. C. 234.

Paxton Tie Co. v. Detroit S. R. R., 10 Int. Com. Rep. 422.

Rea v. Mobile & O. Ry., 7 Int. Com. Rep. 43.

5 In re Restricted Rates, 20 I. C. C. R. 426.

6 Arkansas Pass Channel & D. Co. v. G. H. & S. A. Ry., 27 I. C. C. 403. 7 Franke Grain Co. v. I. C. R. R. Co., 27 I. C. C. 625.

8 Paine Lumber Co. v. C., C., C. & St. L. Ry., 27 I. C. C. 625.

9

Gough & Co. v. I. C. R. R., 15 I. C. C. 280.

10 Peale, P. & K. v. Central R. R. Co. of N. J., 18 I. C. C. 25.

which forbade the sending of its own cars beyond its own line during a period of congestion of business, where no notice of the rule by reference in a tariff, had been brought to the shipper." It was held under the original provision of the Act that the privilege of free cartage at a certain station, which had been openly and notoriously granted for many years and was well known to all who would have occasion to rely on it, need not be posted, though it might be within the power of the Commission to order such posting.12 But to a criminal prosecution under the Act as amended against a railroad for accepting from a shipper less than the published rate filed with the Commission, it has been held no defense that the carriers had spread broadcast among the shippers of the country an announcement that a lower rate would be accepted than the one scheduled, when in fact such rate had not been filed and published as required by the Act. 13

§ 817. Where rates must be posted.

Posting a notice in a station or depot that the tariff sheets of the railroad company may be found in some other place is not a compliance with the Act.14 But it should be noted that section 6 gives the Commission a certain discretion to modify the provision as to posting.15 In an indictment under the Elkins Act against a shipper for accepting concessions, it is sufficient for the government to prove posting and publishing of the tariff at the station where the freight is received for transportation, and it is not required to prove that the carrier had posted and published the same at every station on its line. 16 The publication of inland joint tariffs for the transporta

11 Schwager & Nettleton v. Great Northern Ry., 12 I. C. C. 521.

12 Interstate Commerce Commission v. Detroit, G. H. & M. Ry., 167 U. S. 633, 17 Sup. Ct. 986.

13 U. S. v. Merchants' & Miners' Transp. Co., 187 Fed. 363.

14 Johnson v. C., S. P., M. & O. Ry.,

9 Int. Com. Rep. 221.

15 Franke Grain Co. v. I. C. Ry., 27 I. C. C. 625.

16 United States v. Standard Oil Co., 170 Fed. 988.

tion of foreign merchandise, and of advances and reductions, should be made by posting in a public place at the depot of the carrier where the freight is received in the port of entry, and also where it is delivered at the place of destination in the United States. 17 A rate, filed with the Commission, but not posted at station, was in one proceeding held unreasonable to extent that it exceeded the combination of the locals. 18 But a failure to post a tariff which did not contain a change of the rate in question was held not to be the basis for reparation.19

§ 818. Posting distinguished from filing.

Posting in itself is not a condition to making a tariff legally operative, and is not a condition to the continued existence of a tariff once legally established by filing. The consequences of failing to file have been distinguished by the courts from the penalties for failing to post. A rate may be an established one, so that an offense would be committed by charging less than the rate, even though the rate has not been posted as required by this section. 20 Where an indictment against a shipper for obtaining rates lower than the lawfully published rate fails to allege that the published rates were posted for public inspection, as required by the Act, a demurrer to such an indictment will not be sustained.21 In accordance with this view of the matter it has been held that damages cannot be recovered on account of the failure to have a proper tariff posted at its stations.22 Even when posted, a rate was not considered by one of the earlier cases to be such a matter of public knowledge that ordinary shippers can be charged with knowledge of it.23 But it is now well established that

17 New York Bd. of Tr. & Transp. v. P. R. R., 3 Int. Com. Rep. 417. 18 Alpha Portland Cement Co. v.

P. R. R., 20 I. C. C. R. 640.

19 Fairbault Furniture Co. v. C. Gt.

W. Ry., 25 I. C. C. 40.

20 United States v. Howell, 56 Fed.

21 United States v. Miller, 223 U. S. 599, 32 Sup. Ct. 323.

22 Illinois C. Ry. v. Henderson E. Co., 226 U. S. 441, 33 Sup. Ct.

176.

23 Mobile & O. Ry. v. Dismukes, 94 Ala. 131, 10 So. 289.

21.