from the service, both to the public and to the carriers, were shown, and it was held that the service, when offered without undue preference or unjust discrimination, was not illegal. It is hardly open to successful contradiction that this service. lessens the congestion which, without the service, would result to the carriers' terminal facilities. § 147. Peddler Cars.-In some parts of the United States the carriers have, for many years, maintained what has come to be called a peddler-car service. This service has been defined in 32 I. C. C., 428, as follows: "The original arrangement permitted the sale from the cars, as peddlers from wagons, of fresh meats and packinghouse products, but the growth of the business and economy of operation demanded that sales should be made prior to the shipment of the car, and that each package should be consigned to a particular consignee. The cars move from the packing houses, usually on certain days of each week, and the loading depends on sales made in advance, generally by salesmen of the packers who canvass the territory served by the peddler-car routes. When a packer has orders for a sufficient tonnage he makes arrangements with the carrier for the shipment and loads at his packing plant a refrigerator car owned by him which is usually equipped with meat hooks and other necessary appliances. Each car contains on the average less than 100 consignments, which are loaded in station order. The car is then forwarded by fast freight to the first destination to which there is a consignment, after which it is handled as way freight and the various consignments are unloaded by the carriers at the stations to which they are billed. It appears that the service rendered by the respondents in connection with the peddler cars is generally not greater, and in some instances less, than the service which they render in connection with less-than-carload traffic handled through their freight houses; that for the peddler-car service the user pays the regular less-thancarload rates, guarantees the carriers a minimum per-car earning, saves the carrier the expense of refrigeration, reduces loss and damage claims, and gives to the carrier a * volume of traffic which could not be satisfactorily transported in its own equipment. ''44 Such a service, when performed without discrimination, is not illegal. In 1920 the United States brought a bill against the large packing interests seeking to limit the business of the packers using peddler cars to the meat business, a consent decree so limiting that business was entered. Subsequently the packers sought to escape the consequences of this decree, but the decree was held valid by the Supreme Court.45 § 148. Private Cars.-Railway equipment has never been adequate to meet the demands of shippers such as meat packers and oil distributors, who need special kinds of cars in which properly to distribute their commodities. Private cars were in use at the time of the adoption, in 1887, of the original Act to Regulate Commerce;46 and in one of the earliest cases decided by the Commission it was held that the carriers should not allow their "own deficiencies in the particular [lack of proper cars] to be made the means of putting at an unreasonable disadvantage those who make use in the same traffic of the same facilities" supplied by the carriers.47 The Commission made an exhaustive investigation of the use of private freight cars and the practices adopted in such use. It was held in an opinion based on such investigation that there were benefits to the public in the use of such cars and that while such use "has undoubtedly been of benefit to carriers, it has been of incalculable benefit to shippers as well."48 The facts on which the Commission acted were prin 44 Investigation of Alleged Unreasonable Rates on Meats, 23 I. C. C. 656; Rules Governing Shipments of Freight in Peddler Cars, 32 I. C. C. 428; Rates and Rules on Shipments of Facking House Products, 36 I. C. C. 62; Eastern Live Stock Case, 36 I. C. C. 675; Peddler Car Minimum, 43 I. C. C. 139; Swift & Co. v. P. C. C. & St. L. Ry. Co., 48 I. C. C. 525. 45 Swift & Co. et al v. U. S., 276 U. S. 311, 72 L. Ed. 587, 48 Sup. Ct. 311; U. S. v. California Co-operative Canneries, 279 U. S. 553, 73 L. Ed. 838, 49 Sup. Ct. 423. Other efforts to modify are (1930) pending in court. 46 Scofield v. Lake S. & M. S. R. Co., 2 I. C. C. 90, 2 I. C. R. 67; United States v. P. R. Co., 242 U. S. 208, 61 L. Ed. 251, 37 Sup. Ct. 95. 47 Rice v. Louisville & N. R. Co., 1 I. C. C. 722. 48 Matter of Private Cars, 50 I. C. C. 652, 672, 678. The Commission has cipally those furnished by large shippers, owners of private cars, and the carriers. The carriers have always shown deference to these large shippers and are not over zealous in presenting facts in opposition to the wishes of shippers who control an immense volume of traffic. Carriers should, by pooling their cars or by other means, supply suitable cars for all kinds of traffic. The private-car owner has an advantage not open to all and "a privilege which, although ostensibly open to the whole public, can, in the nature of things, only be taken advantage of by certain shippers, creates thereby a discrimination which may or may not be undue, according to the circumstances in each case."'49 The danger to the general public from permitting shippers to own their own cars has caused considerable discussion in the Congress; and in the Transportation Act, 1920, the definition of transportation was enlarged to include provisions relating to car service and car distribution.50 § 149. Car Spotting. Similar in principle to the trap-car service is what has been called car spotting, which is defined as follows:51 "Spotting' service is the service beyond a reasonably convenient point of interchange between road haul or connecting carriers and industrial plant tracks, and includes: (a) The placement of a loaded car which the road haul or connecting carrier has transported, or (b) The taking out of a loaded car from a particular location in the plant for transportation by road haul or connecting carrier. (c) The handling of the empty car in the reverse direction." While the shipper saves drayage where shipments are delivered at his plant or warehouse, the carrier who makes the delivery is not using its terminals and the advantage is mutual. It is, therefore, a service which is not illegal per se and only also made an investigation of the use of private passenger-train cars and directed the correction of certain practices which it found to be unlawful, Use of Private Passenger Train Cars, 155 I. C. C. 775. 49 Traffic Bureau (St. Louis) v. C. E. & Q. R. Co., 14 I. C. C. 317. The National Association of Railway Com missions gave views similar to those in the text. Procter & Gamble Co. v. C. H. & D. Ry. Co., 19 I. C. C. 556, 558, 559, 560. 50 Section 412, post. 51 Car Spotting Charges, 34 I. C. C. 609, 614; Alan Wood Iron & Steel Co. v. P. R. Co., 22 I. C. C. 540. becomes illegal when granted to one and refused to another under circumstances which cause that discrimination prohibited by law.52 The practice of rail carriers of making store-door delivery of goods appears to be increasing. § 150. Undue Preferences in Favor of Persons or Localities. Section 3 of the Interstate Commerce Act, we have seen, is substantially the same as Section 2 of the English Railway and Canal Traffic Act of 1854.53 This section is broader than Section 2 of the English Act and prohibits undue or unreasonable preference. The words "undue" and "unreasonable" in this section show that in the legislative mind there could be a preference that is not unreasonable or illegal. This has been the construction both of the English and the American statutes. The Supreme Court discusses English cases in the Party-Rate case,54 and also construes both Sections 2 and 3. The Supreme Court, in the case referred to, refused to enforce an order of the Commission and held that a party of ten or more could be legally carried on one ticket at a less rate for each individual than was charged for one person. In the course of the opinion, Mr. Justice Brown said: "In order to constitute an unjust discrimination under section 2, the carrier must charge or receive directly from one person a greater or less compensation than from another, or must accomplish the same thing indirectly by means of a special rate, rebate or other device; but, in either case, it must be for a 'like and contemporaneous service in the transportation of a like kind of traffic, under substantially similar circumstances and conditions.' To bring the present case within the words of this section, we must assume that the transportation of ten persons on a single ticket is substantially identical with the transportation of one, and, in view of the universally accepted fact that a man may buy, contract, or 52 General Elec. v. N. Y. C. & H. R. Co., 14 I. C. C. 237; Los Angeles Case, 18 I. C. C. 310; Order sustained by Supreme Court, Los Angeles Switching Case, 234 U. S. 294, 58 L. Ed. 1319, 34 Sup. Ct. 814; Atchison, T. & S. F. Ry. Co. v. U. S., 232 U. S. 199, 58 L. Ed. 568; 34 Sup. Ct. 291; Iowa & S. W. Ry. Co. v. C., B. & Q. 53 Sec. 140, ante. 54 Int. Com. Com. v. Baltimore & O. R. Co., 145 U. S. 263, 36 L. Ed. 699, 705, 12 Sup. Ct. 844, 4 I. C. R. 92. manufacture on a large scale cheaper proportionately than upon a small scale, this is impossible. "In this connection we quote with approval from the opinion of Judge Jackson in the court below: 'To come within the inhibition of said sections (2 and 3), the differences must be made under like conditions; that is, there must be contemporaneous service in the transportation of like kinds of traffic under substantially the same circumstances and conditions. In respect to passenger traffic, the positions of the respective persons, or classes, between whom differences in charges are made, must be compared with each other, and there must be found to exist substantial identity of situation and of service, accompanied by irregularity and partiality resulting in undue advantage to one, or undue advantage to the other, in order to constitute unjust discrimination.' "The English Traffic Act of 1854 contains a clause similar to section 3 of the Interstate Commerce Act, that 'no such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company; or any particular description of traffic, in any respect whatsoever, nor shall any such company subject any particular person or, company, or any particular description of traffic, to any undue or unreasonable prejudice, or disadvantage in any respect whatsoever.' "In Hozier v. Caledonian R. Co., 17 Sess. Cas. 303, 1 Nev. & McN. R. Cas. 27, complaint was made by one who had frequent occasion to travel, that passengers from an intermediate station between Glasgow and Edinburgh were charged much greater rates to those places than were charged to other through passengers between these termini; but the Scotch Court of Session held that the petitioner had not shown any title or interest to maintain the proceeding; his only complaint being that he did not choose that parties traveling from Edinburg to Glasgow should enjoy the benefit of a cheaper rate of travel than he himself could enjoy. 'It provides,' said the court, 'for giving undue preference to parties pari passu in the matter, but you must bring them into competition in order to give them an interest to complain.' "This is in substance holding that the allowance of a reduced through rate worked no injustice to passengers living |