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if the rate is duly published and on file, shippers and consignees cannot depend for the lawful rate or charge upon what may be quoted by the carrier's agent, but must be guided by the published rate sheets themselves. 24 Failure to post may subject carriers to penalties, but it does not invalidate the tariff when it has been properly filed with Commission; for the posting of rates is not a condition to making a tariff legally operative.25 If the rate charged was not a tariff rate, jurisdiction exists in the Commission to determine what would have been reasonable and award reparation. 26 And if there is no joint tariff, the law requires carriers subject to the Act to file such separately established rates and charges. 27

§ 819. Consequences of failing to file.

Whatever charges are made, whatever services are performed, and whatever privileges are allowed by carriers, must be stated separately in the schedules filed with the Commission. 28 A common carrier by contract may not impose upon itself any burden or grant any privilege, or perform any service, or make any allowance with respect to the traffic of a particular shipper except under the authority of its published tariffs, and then only when the burden is assumed or the privilege granted or allowance made to all shippers under like circumstances and similar conditions.29 It follows that unless there is a tariff provision for the charges for services specially performed, the railroad cannot collect anything for rendering these services. 30 In one case it appeared that shippers customarily performed the service of loading, but the published tariffs made no provision for charges where the carrier 24 Suffern v. Indiana, D. & W. Ry., 7 Int. Com. Rep. 255.

25 Buren v. S. P. Co., 26 I. C. C. 332.

26 Goldenberg v. Clyde S. S. Co., 20 I. C. C. R. 527.

27 Eagle Pass Lumber Co. v. Nat'l Rys. of Mexico, 25 I. C. C. 5.

28 Anderson, Clayton & Co. v. C., R. I. & P. Ry. Co., 18 I. C. C. 340.

29 General Electric Co. v. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 237.

30 Beekman Lumber Co. v. L. & N. R. R. Co., 19 I. C. C. 343.

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did the loading; the carriers loaded the cars in question and collected the less-than-carload rate, but it was held that such charge was unlawful, and complainant was entitled to reparation on the basis of the carload rate.3 In another case where it appeared that the defendant railroad charged the legal rate on grain and refunded to the shipper a certain amount per bushel for elevation service, performed by the shipper at the beginning of transportation; as the carrier's published tariff contained no such allowance, it was held that the railroad was criminally liable under the Elkins Law.32 The doctrine of the courts is that the provisions of section 15 of the Act, to the effect that shippers may be made an allowance by carriers for services rendered by them in connection with the transportation, relates only to services which the carrier has scheduled in its tariff rates, and published in accordance with section 6 of the Act.33

§ 820. No practice legal without tariff provision.

It is altogether unlawful for a carrier to disregard the regular published tariff rates in making up any of its rates, and rely upon unpublished practices.34 Likewise, all rules or regulations which, if enforced, would result in changing or affecting rates or charges shown on the published schedules must be notified to the public for the time required by law for other rate changes.35 So a practice that grain may be shipped to an intermediate station, and there forwarded as a new shipment at a proportional rate lower than the local rate from that point, is a variation from the local published rate, and therefore illegal.36 In consequence of these general principles, it follows that all transit privileges must be published in accordance

31 Voorhees v. A. C. L. R. R. Co., 16 I. C. C. 42.

32 Wisconsin Central Ry. Co. v. United States, 169 Fed. 76.

33 Langdon v. Penna. R. R. Co., 194 Fed. 486.

34 Spillers & Co. v. L. & N. R. R., 8 I. C. C. Rep. 364.

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

36 Re Rates and Practices of Mobile & O. Ry., 9 I. C. C. Rep. 373.

with section 6.37 And it has often been pointed out by the Commission that demurrage is wrongfully collected where there is no tariff provision therefor.38 Tariffs of the Santa Fe system not found to have provided for the absorption of switching charges at Hutchinson, on traffic milled in transit at that point, it was held improper to make such absorption.39 Rates provided in tariffs on file with the Commission are the only legal rates, and rates provided in tariffs not on file are not valid.40 The duly published rate is the legal rate for the shipping public until it is withdrawn under condemnation by the Commission or by the voluntary act of the carriers. 41

§ 821. Devices to avoid the section.

A scheme to avoid the operation of this section will be futile. Thus, the device by which a published rate for carriage of coal from the mines of the carrier, which in the case of a favored consignee was made to include the price of the coal thus sold to the consignee by the carrier and delivered to him, is of course a violation of the Act. 42 And deliveries of coal by an interstate carrier, under a contract to sell and transport such coal at a stipulated price, come within the requirement of the Act respecting the maintenance of published rates, whenever, from any cause, the gross sum realized is insufficient to yield the carrier its published freight rates after deducting the purchase price of the coal and the cost of delivery.43 So where a railroad company (through a development company which it owned) bought grain in Kansas City, transported it to Chicago, and there sold it, the purpose being merely to transport it, and the varying profit on the

37 Transit Case, 24 I. C. C. 340.
38 Beekman Lumber Co. v. L. Ry.

& N. Co., 19 I. C. C. R. 343.

39 Hutchinson Mill Co. v. A., T. &

S. F. Ry., 25 I. C. C. 180.

40 St. Louis Blast Furnace Co. v. V. Ry., 24 I. C. C. 360.

41 Crescent Coal & Mining Co. v. C. & E. I. R. R., 24 I. C. C. 149.

42 Re Transportation of Coal and Mine Supplies, 10 I. C. C. Rep. 473. 43 New York, N. H. & H. R. R. v. Int. Com. Comm., 200 U. S. 361, Sup. Ct. 272.

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transactions being the only real compensation for the carriage, this was held to be a departure from the published schedule and therefore illegal.44 Where demurrage charges have been duly filed and published with the Commission, the carrier and the shipper cannot by agreement between themselves cancel such charges on the ground that the carrier's tracks were torn up and the shipper's tracks were in bad condition, thereby causing delays, or on the ground that such charges were discriminatory between competing shippers; and where the carrier and shipper knowing the published demurrage charges cancel the same, they are criminally liable under the Act.45

§ 822. Only scheduled rates legal.

The requirements of the Act with respect to the publication, posting, and filing of all terminal charges, storage charges, icing charges and all other charges which the Commission may require, remove from the carrier and from the shipper the right which existed under the common law to contract in reference to any such charges, on any basis other than that specifically set forth in the carrier's published tariffs. A carrier may not grant a trackage privilege to a shipper, unless it is authorized by its tariff and open to all shippers on equal terms.47 A rate limited to shipments to be delivered within the New York lighterage limits is not applicable to a shipment not ordered to be delivered within the lighterage limits." 48 Whether carriers could be compelled to establish reciprocal switching arrangements has not been decided; but having entered into such an agreement under tariff authority, the carrier must accept shipments for delivery on the terms

44 In re Rates and Practices in the Transportation of Grain, 7 I. C. C. Rep. 33.

45 Lehigh Valley R. R. Co. v. United States, 188 Fed. 879.

46 Peale, Peacock & Kerr v. Cen

tral R. R. Co. of N. J., 18 I. C. C.

25.

47 Beaumont & G. N. R. R. v. A., T. & S. F. Ry., 24 I. C. C. 161. 48 See Federal Sugar Refg. Co. v. B. & O. R. R., 17 I. C. C. 40.

of the schedule to extent of its capacity." Indeed, according to the express terms of the Act one is unlawfully engaged in interstate commerce by carriage of traffic in respect of which no rate had been published and filed.50 It follows that a shipper is entitled to insist upon no rate except that shown in carrier's schedule for the transportation of the commodity tendered for shipment.51

§ 823. Rate wars no excuse.

Reduction of passenger rates without consent of connecting lines over which tickets are sold, and without filing schedules thereof with the Commission is a violation of this section; and no necessity or compulsion is created by a war of rates which justifies disobedience of the Act.52 Contracts to the effect hat rates shall be as low as those of competitors cannot be accepted as a basis for making rates. 53 Whatever may have been the practice in the past of "meeting the rate," tariffs must now be adhered to.54 The carrier whose lawful tariff rate is higher than that of a competing line has no right to solicit or accept shipments, with the understanding or expectation that an order of reparation will be sought at the hands of the Commission, for the purpose of equalizing to the shipper a rate which he could have secured by giving his shipment to another carrier. 55 The Commission has appreciated the evils resulting from rate wars; and it has often pointed out that until it is given power to fix minimum rates it will not be able to handle the situation as it would like to.

49 Crescent Coal & Mining Co. v. B. & O. R. R., 20 I. C. C. 559.

50 Maxwell v. W. F. & N. W. Ry., 20 I. C. C. 197.

51 Ford & Co. v. M. E. R. R., 19 I. C. C. 507.

62 In re Passenger Tariffs and Rate

Wars, 2 Int. Com. Rep. 340, 2 I. C. C. 513.

53 Menefee Lumber Co. v. T. & P. Ry., 15 I. C. C. 49.

54 In re Express Rates, 28 I. C. C. 132.

55 Swift & Co. v. C. & A. Ry., 16 I. C. C. 426.

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