yards company, and that so long as this company imposes no charge for delivering live stock when that stock is taken by the consignee within a reasonable time, such contract is not obnoxious to law.

This case was construed and applied by the Circuit Court of Appeals for the Sixth Circuit to a case exactly like the one before us, in Butchers' & Drovers' Stock Yards Co. v. Louisville & N. R. Co. 14 C. C. A. 290, 31 U. S. App. 252, 67 Fed. 35. The Louisville & Nashville Company had entered into a contract with the Union Stock Yards Company, of Nashville, similar to that referred to in the Keith case, by which it had agreed to make the yards of that company its exclusive live stock depot in the city of Nashville. The railroad company paid a certain amount for the loading and unloading of live stock, but no charge was imposed against shippers by the Union Company.

The Butchers' & Drovers' Company was also engaged in the stock business at Nashville, and had constructed stock yards in the vicinity of Front street, in that city. The Louisville & Nashville maintained a spur track along Front street, and permitted various business enterprises to connect with that track by switches, for the purpose of moving in and out carloads of freight. This siding seems to have been about one mile in length. It did not definitely appear what business firms made connection with it, but it did appear that the privilege was accorded to whoever requested it, save that in all cases the freight handled from these switches was dead freight. The yards of the Butchers' & Drovers' Company were separated from this street by a narrow strip of land about 40 feet in width, which had been dedicated to the city. The city had granted, by ordinance, to the Butchers' & Drovers' Company the right to construct its track across this strip, and the court said that the existence of the strip afforded the railroad company no valid excuse for not permitting the connection. The Butchers' & Drovers' Company requested a connection with this track on Front street, and upon refusal brought suit in equity, praying for a mandatory injunction to compel such connection. The Circuit Court dismissed the bill, and the Circuit Court of Appeals affirmed that decree. The opinion of the court was delivered by Taft, Judge, who held that

the Keith case was authority for the proposition that a railroad company might enter into an exclusive contract like that before him and like the one before us. The Keith case was commenced before and decided after the Act to regulate commerce took ef fect. The Butchers' & Drovers' case was both commenced and decided subsequent to the passage of that Act, and while that statute is not discussed in detail in the opinion, it is expressly referred to and must have been in the mind of the court.

No further examination of authorities upon this point seems profitable. Whatever may have been said by some inferior courts as to the law, or whatever may be the view of this Commission as to the abuses which might flow from an application of the principle to railroad operations in general, these cases must control our decision in the proceeding before us. Upon their authority we hold that the defendant in making and carrying out its exclusive contract with the Bourbon Stock Yard Company is not in violation of the Act to regulate commerce.

II.

Complainant insists that although the defendant may have the right to make stock deliveries at a single point upon its own line, it must nevertheless deliver carloads of stock to connecting carriers. And manifestly there is, in the practical aspect, a wide distinction between the two propositions. It might impose an almost intolerable burden on the defendant if it were compelled to deliver and receive live stock at every stock yards which might be constructed along its line, while it would not be a hardship of the same magnitude, nor indeed ordinarily any hardship at all, to make deliveries to its connections at points of physical junction in due course of business.

To sustain this contention of the complainant necessitates an order requiring the defendant to deliver its cars to the Southern Railway, and the defendant earnestly insists that no law can be made compelling such delivery, since that would amount to a taking of private property without due process of law. We have no doubt as to the authority of the State with respect to intrastate traffic and of the United States with respect to interstate traffic to compel the exchange of loaded freight cars by statute.

Whatever may be true in fact, in theory at least the railway is a public servant, holding its franchises and operating its property charged with a public trust. It cannot use that property as it might strictly private property without reference to the public interests. The business of railroading in this country at the present time is very largely carried on by the interchange of loaded freight cars and cannot be conducted economically, in many cases not at all, except by that practice. It would be strange indeed if the government might not say that railways should, in the furtherance of public convenience, do, under proper terms and conditions, what their universal custom shows to be feasible and necessary. It has not, however, seemed advisable to discuss the authorities upon that point, for whatever the authority of Congress, no legislation going to that extent has, up to the present time, been enacted.

Probably the framers of the Act to regulate commerce supposed that the third section would compel, under certain circumstances, such interchange of cars. A moment's thought will show that every such exchange is a matter of contract between the parties in which the terms and conditions upon which the exchange shall be made are specified, and it is apparent to one at all acquainted with railway operations that to arbitrarily compel the interchange of cars under all circumstances would be unjust. The Act to regulate commerce provides no means for determining when carriers shall be compelled to make this interchange, or for fixing the conditions upon which it shall be made, and in construing that Act the courts have, with practical unanimity, held that carriers were still free to make arrangements of this sort by contract among themselves, and that there was nothing in the Act which authorized either the Commission or the courts to compel one railroad company to deliver its cars to another.

Kentucky & I. Bridge Co. v. Louisville & N. R. Co. 2 Inters. Com. Rep. 351, 2 L. R. A. 289, 37 Fed. 567; Oregon Short Line & U. N. R. Co. v. Northern P. R. Co. 4 Inters. Com. Rep. 249, 51 Fed. 465; Little Rock & M. R. Co. v. St. Louis & S. W. R. Co. 4 Inters. Com. Rep. 854, 26 L. R. A. 192, 11 C. C. A. 417, 27 U. S. App. 380, 63 Fed. 775.

Just what the seventh section may have beeen intended to ac

complish is not certain. Possibly the legislature had in mind that railways might attempt to relieve themselves from its provisions by interrupting traffic at State lines, and thereby deprive it of the character of interstate business. The seventh section may have been intended to prevent this. At any rate we are clear that it adds nothing to the third section in support of this claim of the complainant, and conclude that the Act to regulate commerce does not confer upon this Commission authority to make an order affirmatively requiring a railway carrier to deliver carloads of interstate freight to a connecting carrier. This Commission has more than once called the attention of Congress to this state of the law. Second Annual Rep. p. 70 and nearly every report since.

III.

It appears from the findings of fact that all railways entering Louisville interchange carloads of dead freight to be switched to various points within the switching limits of Louisville, and it seems that Central Stock Yards is within those switching limits. The Louisville & Nashville would deliver to the Southern cars loaded with every species of freight, except live stock, to be switched by it to Central Stock Yards. The complainant insists that its refusal to deliver live stock as well is a discrimination under the third section against that particular species of traffic, and that this Commission, even though without general power to order an interchange of cars between railway companies, may compel this defendant to treat live stock in the same way that it does dead freight.

This question, in much the same form, was presented in Butchers' & D. Stock-Yards Co. v. Louisville & N. R. Co. supra. There the railroad company maintained a side-track nearly one mile in length along Front street, with which various establishments were connected by switch; and it appeared that a switching connection was granted to everybody who applied, so long as the commodities to be moved were dead freight. The Butchers' & Drovers' Company demanded a connection by switch for the movement of live stock. In disposing of the case, Judge Taft stated that one controlling point was the inquiry whether this discrimina

tion in favor of dead freight and against live stock was justifiable. He held that it was, putting the decision on the ground that the character of the service in the transportation of live stock differed so materially in fact from the transportation of dead freight that a refusal to treat both commodities alike did not constitute an actionable discrimination. We have already remarked that there is a wide difference between switching carloads of live stock to and from every side-track, which may be requested upon the line of a railroad, and the delivery of similar cars to its connections in regular course of business. But it must be remembered that the service rendered by these railroads in Louisville to dead freight is essentially a switching service. It does not appear under what terms loaded cars are thus taken to destination, who is responsible for the delivery, or who makes collection of the freight money. It is conceivable that the defendant might be willing to deliver its carloads of dead freight to be thus switched to destination when it would properly refuse to deliver its live stock. We think the facts are so far similar that the Butchers' & Drovers' case must be regarded as controlling the one before us, and feel constrained to hold, upon its authority, that the defendant is not guilty of unjust discrimination in delivering dead freight and refusing to deliver live stock to the Southern Railway.

There is a still further consideration. A discrimination under the third section to be undue must ordinarily be such that the prejudice arising out of it against one party is a source of advantage to the other. That can hardly be said of this discrimination. To refuse to make deliveries of live stock is a hardship upon that species of traffic; to make deliveries of dead freight is a benefit to that species of traffic, but the refusal to switch live stock does not in the case before us in any respect benefit dead freight. If we were to find an undue discrimination and were to order defendants to cease from its continuance, that order might be complied with either by delivering live stock or by ceasing to deliver dead freight. In case the latter alternative were adopted, the interests for which the complainant stands would be in no respect benefited, while those persons who now do benefit from the pres