way to overcome. (Peavey v. Union Pacific Railroad, 176 Fed., 409, 419.) It may not be consistent also with the exaction of this charge that provided only the cars are unloaded within the free time allowed, they may be reloaded and retained by the shipper indefinitely without any claim being made for demurrage. If this, which is the practical construction of the rule, is to be accepted as the correct one, it throws serious doubt on its validity, the real ground on which the charge is to be sustained being the right of the carrier to have the cars promptly returned into service, which this has the effect to undo. Nor is the condition of the cars, once they have been delivered to the shipper, whether loaded or unloaded, of any concern to the carrier, except as an end to getting them back into use again. And there is also an apparent inconsistency in holding inbound cars liable to demurrage after they have been delivered and are on the tracks of the owner until they are unloaded, barring the free days, and yet in imposing it on outbound cars without regard to when they are loaded, only from the time they are placed on the interchange tracks. The justification of the rule is therefore to be sought in something outside of all this, upon a determination of the real principle involved.

It is not necessary to decide whether a railroad can refuse or be required to haul private cars. Whatever may be its duty in this regard, it is conceded that such terms may be imposed as a condition to hauling them as have a reasonable relation

to the transportation service in which they are employed. And this concession necessarily sustains the present charge. In using these cars, whether as supplementary to or in place of their own, the railroads are entitled to require that there shall be a reasonably dependable supply, and that such cars shall not be withdrawn at will to serve the private purposes of the owners, but shall be kept in active and steady use, and to that end that they shall be put on a footing in this respect with other cars. The interest of the carrier that this should be the case is clear. For the time being these cars become a part of the rolling stock of the road, taking the place of those which the carrier would otherwise be called upon to supply. It may be that there are some kinds of these cars, such as the tank cars here, which the railroads do not keep on hand, but rely on each shipper furnishing his own. But that does

not change the principle involved. In one form or another, the carrier is bound to supply the necessary transportation facilities for handling every kind of freight. And this, not to one shipper only, but equally and without discrimination to all. And it is put at a disadvantage and an extra burden upon it imposed if it can not be assured with regard to the supply of cars on which it can depend, but is liable to run short or be in excess, according as private cars are released or withheld. This the demurrage charge which is complained of is calculated to overcome, and therefore may justly be imposed. The purpose of demurrage is to force the cars back

into use. Delay is made expensive, so that it may be an object to the shipper which he can not afford to disregard. Its exaction from private cars, the same as others, is therefore neither arbitrary nor unjust.

Nor is it violative of the owner's rights. It is simply a condition to the acceptance of his cars, which, for the reasons given, the carriers have found it necessary to impose, and with which therefore he must expect to comply. Presumably the use of these cars operates to his advantage, or he would not be at the expense of supplying them. But he can not expect that the advantage shall be all on one side. And it having been found by experience that demurrage on private, the same as on public, cars is a necessary transportation regulation, which is justified on principle, the carriers were within their rights in imposing it by the rule in question, and it must therefore be sustained.

The petition will be dismissed on the merits with costs.

KNAPP, Presiding Judge, concurring: The conclusion reached in this case is undoubtedly correct, and I disagree with the foregoing opinion only so far as it questions the right to enforce the demurrage rule in controversy for the purpose or in aid of preventing undue preference and advantage to the owners of private cars. The commission based its decision in part on this ground and in my judgment was right in so doing.

United States Commerce Court.

No. 15.-MAY SESSION, 1911.

UNITED STATES EX REL. ATTORNEY GENERAL

v.

UNION STOCK YARD AND TRANSIT CO. ET AL.

ON PETITION AND ANSWER.

Mr. Blackburn Esterline and Mr. William E. Lamb, special assistants to the Attorney General, with whom Mr. James A. Fowler, Assistant to the Attorney General, was on the brief, for the United States of America.

Mr. Ralph M. Shaw, with whom Mr. John Barton Payne and Mr. Silas H. Strawn were on the brief, for Union Stock Yard and Transit Company of Chicago and for the Chicago Junction Railway Company.

Mr. W. D. Guthrie for the Chicago Junction Railways and Union Stock Yards Company.

Mr. Willard M. McEwen for Louis Pfaelzer & Sons.

Before KNAPP, Presiding Judge, and ARCHBALD, HUNT, CARLAND, and MACK, Judges.

MACK, Judge:

[Nov. 14, 1911.]

This proceeding is brought to compel the Union Stock Yard and Transit Company of Chicago (hereinafter called the "Stock Yard Co.") and the Chicago Junction Railway Company (hereinafter called the "Junction Co.") to file with the Interstate Commerce Commission tariffs in conformity with section 6, and reports and statements in conformity with section 20, of the act to regulate commerce (act of Feb. 4, 1887, as amended June 29, 1906; 34 Stat., 586 and 593) and of the rules and regulations adopted by the Commission pursuant thereto, and to enjoin the Stock Yard Co. and the individual defendants comprising the firm of Louis Pfaelzer & Sons (hereinafter called "the Pfaelzers") from carrying out the terms and provisions of a contract made by them, and the Chicago Junction Railways and Union Stock Yards Company (hereinafter called the "Investment Co.") from carrying out its written guaranty of this contract.

The case has been heard on petition and answer. While the answers of the Stock Yard Co. and the Investment Co. neither admit nor deny certain allegations as to the activities of the Junction Co., which the latter in its answer admits to be true, and while no testimony has been offered in the case, it has been presented, both in the briefs and oral arguments by all counsel, on the basis of the truth of those allegations that are so confessed by the