it might feel to be in the interest of the public or to maintain its property as it might feel would be conducive to the safety of its patrons.37 And in another late case, it disclaimed any power of a general character to compel the performance of service to the extent of ordering an express concern which had sold out to resume business.38 On the other hand, whatever service is established by the carrier must be duly performed in accordance with the undertaking. A carrier under the Act as amended may not lawfully refuse transportation as therein defined, but must, upon reasonable request, afford the same upon established rates filed and kept posted as required by law. 39 When the rules put upon the shipper the risk of damage from freezing, the Commission has said 40 that there is no occasion for a further rule permitting the carrier to refuse a shipment altogether.11 § 917. Freight embargo as an excuse. An embargo may be justifiable because of the physical inability of the carrier for some reason to deal with traffic which is overwhelming it; but an embargo placed against connecting carriers because of their failure to promptly return cars is not consonant with the service which carriers constituting through routes are required by law to give. 42 It may be laid down as a general rule, admitting of no qualification, that a manufacturer or merchant, who has traffic to move and is ready to pay a reasonable rate for the service, has the right to have it moved, and to have reasonable rates established for the movement, regardless of the fact that the revenues of the carrier may be reduced 37 New England Investigation, 27 I. C. C. 560. The Commission has no power to take action upon a complaint that an insufficient number of trains are run. I. C. C. Conference Ruling No. 296. 38 Douglass Shoe Co. v. Adams Express Co., 19 I. C. C. 539. The Commission cannot prevent the discontinuance of a train. I. C. C. Conference Ruling No. 296. 39 Waxelbaum & Co. v. A. C. L. R. R., 12 I. C. C. 178. 40 Protection of Potato Shipments in Winter, 28 I. C. C. 681. 41 Dubuque Shippers' Ass'n V. C. & N. W. Ry., 26 I. C. C. 565. 42 Missouri & Illinois Coal Co. v. I. C. R. R., 22 I. C. C. 39. by reason of his competition with other shippers in the distant markets; and he has the right also to have the benefit of through routes and reasonable joint rates to such distant markets if no "reasonable or satisfactory" through routes already exist.43 If, when the line is blocked by freight, the carrier forwards first those goods which are most necessary to the public, it can hardly be said that the carrier is not performing its public duty; thus it is not improper that livestock, perishable freights, and material or supplies for the railroad should be excepted from any embargo imposed.44 If during a famine period in supplying the necessities of life a railroad is not able to supply cars for its other traffic, it will be considered that no unjust discrimination is shown. 45 § 918. Carriers discriminating against its rivals. Although there was formerly much doubt it is now held that jobbers are shippers; and that every shipper is entitled to reasonable rates, but the right of a middleman as such to complain of a blanket rate has been questioned by the Commission in a recent proceeding.46 It is all a question of getting at the true intent of the legislative provisions by proper interpretation; and the courts have recently held 47 that forwarders collecting goods of others were as much within the Act as other shippers, and could not be refused carload rates enjoyed by others.48 An analogous case would be if one railroad should make application to another railroad inimical to it to forward some materials to an intersecting point. It is submitted that it is the clear duty of the railroad to which this application is made to accept the shipment, although it might benefit 43 Cardiff Coal Co. v. Chicago W. & S. P. R., 11 I. C. C. 460. 44 U. S. Daish & Sons v. C. A. & C. Ry., 9 I. C. C. 513. 45 Wagner, Zagelmeyer & Co. v. D. & M. Co., 13 I. C. C. 160. 46 Billings Chamber of Commerce v. C., B. & Q. R. R., 19 I. C. C. 71. 47 Interstate Commerce Commission v. D. L. & W. Ry., 220 U. S. 235, 31 Sup. Ct. 392. 48 See Lunquist v. Grand Trunk Ry., 121 Fed. 115. much this road to which the application is made to cripple its rival by refusing to transport the supplies. 49 A carrier must accede to every proper application for service, although it might be more profitable to promote its own interests by imposing conditions, or even by refusing altogether. § 919. Railroad cutting its own rates for itself. This development which is going on in the law was brought to the attention of all some years ago by a striking decision handed down by the United States Supreme Court in regard to the coal roads-New York, New Haven & Hartford Railroad v. Interstate Commerce Commission. 51 The complaint in that case was filed by the attorneygeneral under the provisions of the Interstate Commerce Act, which forbid personal discrimination, charging that traffic was being moved at less than the published rates. It was shown that the Chesapeake and Ohio Railroad had sold to the New York, New Haven and Hartford Railroad sixty thousand tons of coal to be delivered to the buyer at $2.75 per ton; and it was averred that the price of the coal at the mines where the Chesapeake and Ohio bought it and the cost of transportation from Newport News to Connecticut would aggregate $2.47 per ton, thus leaving to the Chesapeake and Ohio only about twenty-eight cents a ton for carrying the coal from the Kanawha district to Newport News, whilst the published tariff for like carriage from the same district was $1.45 per ton. Upon these facts the United States Supreme Court decided that there was in effect the evil of personal discrimination against other shippers in this arrangement; and the final decree, therefore, was that the Chesapeake and Ohio was perpetually enjoined from taking less than its published tariff of freight rates, by means of dealing in the purchase and sale of coal.52 49 Rogers Locomotive & Machine W. v. Erie R. R., 20 N. J. Eq. 379. 50 See Johnson v. Dominion Exp. Co., 28 Ontario Rep. 203. 51 200 U. S. 361, 26 Sup. Ct. 272. 52 Whether express companies are discriminating in favor of themselves in transporting money. American Topic B. Provision of Reasonable Facilities § 920. Not required by original Act. The original Interstate Commerce Act did not require or give the Commission power to require that carriers should furnish reasonable facilities; though it did forbid any discrimination in furnishing facilities. The common law required the furnishing of such facilities; but since the Act was silent, the Commission could not require a carrier to furnish cars. Nor could it require a railroad to furnish refrigerator cars for the carriage of fruit.54 So it would not order a railroad to deliver carload freight in bulk to a connecting road. 55 Nor was a railroad under the Act obliged to allow a steamboat access to its wharf.56 In the same way under the original Act a railroad was not bound to provide and maintain a spur track to the premises of a shipper. And carriers were allowed to make their timetables and train service without dictation. 58 § 921. Orders concerning freight delivery. Although railroad service does not commonly contemplate delivery to the premises of the consignee by wagon, if the custom has prevailed the Commission will now order store delivery under its present powers. 59 But carriers were not required to resume delivery of melons at a certain pier in New York, conditions justifying a change of the place of delivery from New York to Jersey Bankers' Ass'n v. American Express 53 Scofield v. Lake Shore & M. S. Ry., 2 Int. Com. Rep. 67, 2 I. C. C. 90; Rice v. Cincinnati, W. & B. R. R., 3 Int. Com. Rep. 841, 5 I. C. C. 193. 54 Re Transportation & Refrigeration of Fruit, 10 I. C. C. Rep. 360. 55 Railroad Comrs. v. Louisville & N. R. R., 10 I. C. C. Rep. 173. 56 Ilwaco Ry. & Nav. Co. v. Ore gon S. L. & U. N. Ry., 57 Fed. 673, 6 C. C. A. 495, 5 Int. Com. Rep. 627. 57 Mt. Vernon Milling Co. V. Chicago, M. & S. P. Ry., 7 I. C. C. Rep. 194; Red Rock Fuel Co. v. Baltimore & O. R. R., 11 I. C. C. Rep. 438. 58 Loch Lynn Construction Co. v. Baltimore & O. R. R., 17 I. C. C. 396. 59 Wholesale Fruit & P. Ass'n v. Atchison, T. & S. F. Ry., 14 I. C. C. 4. City,60 Merchants of Washington, D. C., located on Fourteenth street, northwest, between Florida avenue and Park road, are subjected to undue prejudice by being compelled to pay a drayage charge on less-than-carload freight shipments, while merchants located in Georgetown are given free pick-up and delivery service.61 In the express business on the other hand, personal delivery to the consignee is the normal service. The Commission has laid it down that there should be definite rules concerning delivery of express traffic; and when free delivery is made, the free delivery limits must be plainly indicated, this information being made public in the express tariffs and in the express directory.62 § 922. Contracts with grain elevators. As to grain elevators the rule is practically established that the railroad must deliver at their private siding to all of them that are along its route. Grain in bulk is a peculiar kind of freight, which as a commercial matter requires special delivery. And as this is a duty owed by the railroad to its patrons, it would not be legal for it to make a discrimination in favor of one grain elevator requiring its patrons to receive grain consigned to them through it and pay to its proprietor his fixed charge.63 Against such a possibility more than one court has urgently protested. "May such railroad companies, in like manner, discriminate between grain elevators in the same place, constitute one elevator its depot for the delivery of grain, and force competing interests to receive from and transfer the grain consigned to them through such selected and favored channel? If railroad corporations possess such right, they can destroy a refractory manufacturer, exterminate, or very materially cripple competition." 63" Go Bahrenburg Bros. & Co. v. A. C. L. R. R., 24 I. C. C. 561. 61 Casassa v. P. R. R., 24 I. C. C.629. 62 In re Express Rates, 24 I. C. C. 380. 63 Chicago & Northwestern Ry. Co. v. People of Illinois, 56 Ill. 365. 630 See also Roby v. State ex rel., 76 Neb. 450, 107 N. W. 766. |