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for the movement of outbound cars. At the opening of the Central Yards the Southern Railway established a charge of $1.00 per car from 7th street and Magnolia avenue to the Central Stock Yards, and this action was immediately followed by a reduction of the Louisville & Nashville charge to a corresponding amount. The public therefore directly benefits by $1.00 per car on all carloads of live stock which are brought to the city of Louisville over any other line than that of the defendant.

Still further, there are more or less stations in Kentucky and adjoining States from which live stock may move to Louisville over either the line of the Louisville & Nashville or one of its competitors like the Illinois Central. When in the past live stock has been brought to Louisville from such a competitive point over a rival line, the Louisville & Nashville has refused to switch that car to the Bourbon Stock Yards upon any terms, with the result that stock has been unloaded at some other point and driven through the streets of Louisville to the Bourbon Yards in order that it might be marketed there. The purpose of this action upon the part of the defendant was, of course, to force shippers to patronize its line, and the effect was to largely eliminate competition from these otherwise competitive points. The building of the Central Stock Yards has opened to these points the advantages of their competitive location.

While some witnesses in this case testified that in their opinion all stock at Louisville could be most advantageously marketed at a single point, it appears that the shippers of live stock to that market regard the privilege of selling at either one of these stock yards as of material benefit. At the present time stock shipped to Louisville from points without the State of Kentucky destined to Central Stock Yards is taken to the Bourbon Stock Yards, there unloaded, re-loaded into a Southern car, switched by the Louisville & Nashville to 7th and Magnolia, and thence taken by the Southern to its destination. This involves a delay of from 6 to 24 hours and more or less shrinkage in the stock and risk of damage. As we understand the testimony, it costs a loading charge of 50 cents at the Bourbon Yards, a switching charge of one dollar to the defendant and another dollar to the Southern

Railway; yet stock is frequently transported under all these difficulties to the Central Yards.

It is impossible to estimate to its full extent, in dollars and cents, the benefit to the public of this competition, but we are clearly of the opinion that the benefit is considerable. It should perhaps be stated in this connection that more live stock is brought to Louisville over the Louisville & Nashville than over any other one line, or perhaps all lines.

If now it is for the interest of the defendant to make exclusive deliveries at the Bourbon Yards, and for the interest of the public that both yards should be alike open, the question immediately arises, whose interest should control, and this may be a question of fact. The public ought not to be allowed to insist upon the application of some theoretical right when no substantial advantage accrues and when such insistence is to the substantial detriment of the carrier, and upon the other hand the carrier must in many cases give way where the loss to it is insignificant in comparison with the advantage to the public. Treating this as a question of fact in the present instance, and inquiring what ought, upon a fair consideration of the interests of all parties to be done, we think and find that the Louisville & Nashville ought to permit the shipper to designate the point of delivery and to follow that designation. It seems to us that the advantages accruing to the public from free competition between these rival yards and the various carriers entering Louisville is of more advantage to the people who buy, sell and consume live stock and its products than is the right of the Louisville & Nashville to make exclusive deliveries at the Bourbon Stock Yards to that company.

Soon after the opening of the Central Stock Yards for business the Southern Railway established a station at that point, known as Central Stock Yards, Kentucky, and some question is made as to whether this should be treated in disposing of this case as a bona fide station. The station was regularly established by the Southern Company, which issued circulars to its various connections stating the rates and the divisions which would apply on business destined to that point. According to this circular the Louisville rate is applied from all stations upon the Southern

Railway system, and upon all business reaching Louisville over that system, and the Louisville rate, plus a switching charge of $1.00, is applied to business from connecting roads at Louisville. Central Stock Yards is nine miles from the terminus of the Southern Railway at Louisville. This, however, arises from the fact that in running to Central Stock Yards a detour of the city itself is made. The station is without the corporate limits of Louisville, but is only a short distance beyond those limits. It is the live stock depot of the Southern Railway. Live stock billed to any particular destination in Louisville is delivered by the Southern at that destination, but if the destination be simply Louisville the delivery is at Central Stock Yards. It also seems that these yards have been made the live-stock depot for the city of Louisville of the Baltimore & Ohio Southwestern. We find that there is an independent station on the Southern Railway, designated Central Stock Yards, Kentucky, but we further find that this station is strictly competitive in the live-stock business with Louisville, and that it was created by the Southern Railway in the expectation and hope that its existence might be a means of compelling deliveries of live stock at the Central Stock Yards.

The complainant relied upon Sections 213 to 215, inclusive, of the Constitution of Kentucky, which are as follows:

"Sec. 213. All railroad, transfer, belt lines and railway bridge companies, organized under the laws of Kentucky, or operating, maintaining or controlling any railroad, transfer, belt lines or bridges, or doing a railway business in this State, shall receive, transfer, deliver, and switch empty or loaded cars, and shall move, transport, receive, load or unload all the freight in carloads or less quantities, coming to or going from any railroad, transfer, belt line, bridge or siding thereon, with equal promptness and dispatch, and without any discrimination as to charges, preference, drawback or rebate in favor of any person, corporation, consignee or consignor, in any manner as to payment, transportation, handling or delivery; and shall so receive, deliver, transfer and transport all freight as above set forth, from and to any point where there is a physical connection between the tracks of said companies. But this section shall not be con

strued as requiring any such common carrier to allow the use of its tracks for the trains of another engaged in like business.

"Sec. 214. No railway, transfer, belt line or railway bridge company shall make any exclusive or preferential contract or arrangement with any individual, association or corporation, for the receipt, transfer, delivery, transportation, handling, care or custody of any freight, or for the conduct of any business as a common carrier.

"Sec. 215. All railway, transfer, belt lines or railway bridge companies shall receive, load, unload, transport, haul, deliver and handle freight of the same class for all persons, associations or corporations from and to the same points and upon the same conditions, in the same manner and for the same charges, and for the same method of payment."

CONCLUSIONS.

We have found that the defendant, in fair consideration of the interests of all concerned, ought, when required by the shipper, to make delivery to the Southern Railway for the Central Stock Yards. Can this Commission by its order require this to be done? The complainant bases its claim to such an order upon four grounds:

1. The making of the contract with the Bourbon Stock Yards for the exclusive delivery of all live stock transported over its lines to Louisville is a discrimination under the Act to regulate commerce.

2. The third and seventh sections of that Act require the defendant to deliver its live stock cars to the Southern Railway for the Central Stock Yards.

3. To deliver dead freight to be switched to destination and refuse that same privilege to live stock is a discrimination against the latter species of traffic under the third section.

4. The Constitution of Kentucky, requiring the interchange of cars, is in aid of interstate commerce and should be enforced by this Commission.

I.

The question arising under the first of these propositions

seems to have been definitely settled by the decisions of the Federal courts, the leading case being Covington Stock Yards Co. v. Keith, 139 U. S. 128, 35 L. ed. 73, 11 Sup. Ct. Rep. 461.

The Kentucky Central Railroad Company entered into a contract with the Covington Stock Yards Company very much like that between the defendant and the Bourbon Stock Yard Company involved in this proceeding. Keith was engaged in the stock yards business at Covington, and had constructed yards for that purpose separated from those of the Covington Company only by the street, and adjacent to the tracks of the railroad company. For a time the railroad company had made delivery at the yards of Keith, but after the making of its exclusive contract with the stock yards company this practice was discontinued. The Kentucky Central Railroad was in the hands of a receiver pending foreclosure proceedings; the receiver had declined to make delivery at the yards of Keith, and a petition was therefore filed by him in the Circuit Court to compel such delivery. The Covington Company imposed a charge for yarding, no matter how short the time during which the cattle remained in its enclosures, and this fact was complained of in the petition.

The court below ordered the Covington Company, which had become a party to the suit, to deliver to Keith, and all other persons, stock received at Covington, free of all charges other than the regular transportation charges, and in default of its consent in writing to do so, directed that the receiver should make delivery of stock consigned to Keith at his yards. From this order the Covington Company appealed.

The Supreme Court affirmed the order of the Circuit Court. In its opinion are laid down two general propositions: First, that it is the duty of a railroad company to provide suitable facilities for receiving and delivering live stock at its stations without additional compensation other than the regular transportation charge, and, second, that the railroad company may provide these facilities by contract with a stock-yards company. While the court does not so declare in express language, the necessary inference from the decision is that a railroad company may provide these terminal facilities for the handling of live stock by making an exclusive contract with a particular stock

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