carriers to establish through routes and joint rates and to refuse such an arrangement with other connecting carriers, resulting in high and discriminatory charges, with the intent and result of eliminating competition, violates the Anti-Trust Laws of the United States. Whether or not the giving or refusing joint traffic arrangements is in violation of the commerce acts, is a question which the courts have no jurisdiction to determine in advance of action by the Interstate Commerce Commission.29 The broad purpose of this provision is well stated by the Commission as follows: "The railroads of the country are called upon to so unite themselves that they will constitute one national system; they must establish through routes, keep these routes open and in operation, furnish the necessary facilities for transportation, make reasonable and proper rules of practice as between themselves and the shippers, and as between each other. ''30 A carrier publishing a joint through rate is responsible therefor. Electric railways are entitled to through routes and joint rates.32 § 242. Division of Joint Rate.-When joint rates are established by order of the Commission, or otherwise, and carriers fail to agree among themselves upon the apportionment or division thereof, the Commission may, after hearing, prescribe the just and reasonable proportion of such joint rates to be received by each carrier party thereto.33 Speaking of this power Mr. Commissioner Harlan, delivering the opinion of the Commission, said:34 C. 499, and cases cited. That a through route could not be made with the Columbus Traction Co. was placed on the ground that such company was not a lateral branch road, United States v. Baltimore & O. R. Co., 226 U. S. 14, 57 L. Ed., 104, 33 Sup. Ct. 5. 33 Secs. 493, 496, post. 34 Star Grain & Lumber Co. v. Atchison, T. & S. F. Ry. Co., 14 I. C. C. 364, 370. Without giving force to "The phrase 'the just and reasonable proportion of such joint rate to be received by each carrier' necessarily implies that it is the duty of the Commission in fixing divisions to take into consideration all the circumstances, conditions, and proper adjustment of the situation as between the two roads, and precludes the idea that joint rates must be divided between the participating carriers on a mileage or any other fixed basis." In Note 34, supra, the opinion was expressed in the second edition of this book that the Commission was competent to prescribe divisions of rates even though the rates had not been established by it. At first, the Commission did not take this view, but subsequently it adopted the correct view.35 The Transportation Act 192036 specifically gives the Commission the power which it had already come to hold that it possessed. § 243. Allowance to Shippers for Services and Facilities. -The statute reads:37 "If the owner of property transported under this Act directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the Commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and to fix the same by appropriate order." the words "or otherwise" in the statute the Commission expressed a doubt as to its power to prescribe divisions of rates not fixed by it. Re Wharfage Charges at Galveston, 23 I. C. C. 535, 546. Giving force to all the words of the statute there seems to be no room to doubt the jurisdiction of the Commission in all cases where there is a failure of the carriers to agree. 37 I. C. C. 231. 35 Morganton & Kingwood Divisions, 40 I. C. C. 509, 49 I. C. C. 540. For cases illustrating the exercise of 36 Transportation Act, 1920, Sec. 418; Int. Commerce Act, Sec. 15, par. (6). See New England Divisions Case, 261 U. S. 184, 67 L. Ed. 605, 43 Sup. Ct. 270. 37 Sec. 15 being added thereto by Act June 29, 1906; post, Sec. 500. This statute has received consideration in many cases. It is not open to question that when a shipper renders services connected with the transportation of his goods or furnishes any instrumentality used therein, a charge and allowance therefor is recognized by the law. Such charge and allowance must be just and reasonable, that is, it must not be too high nor discriminate against another shipper rendering a like service or furnishing a like instrumentality.38 The Commission has held that this charge and allowance must be limited to the cost of the service.39 The Commission, in the Sugar Lighterage case,40 did not deny the validity or application of the statute, but held that the fact that one sugar refinery owned and operated a dock and terminals for the railroad did not justify an allowance thereto when such allowance was denied another refinery owning no such terminals but tendering sugar brought by boat to the same pier as that to which the first company brought its sugar. The issue of law in this case was, therefore, whether or not undue discrimination existed. This issue of law was determined by the Commerce Court differently from the Commission. The Commerce Court said:41 38 Central Stock Yards Co. V. Louisville & N. R. Co., 67 Fed. 339; Railroad Com. of Kentucky v. Louisville & N. R. Co., 192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. 339; Railroad Com. of Ky. v. L. & N. R. R. Co., 10 I. C. C. 173; Cattle Raisers Assn. v. Chicago, B. & Q. R. Co., 11 I. C. C. 277; Butchers', etc., Stock Yards Co. v. L. & N. R. Co., 67 Fed. 35, 14 C. C. A. 290; United States v. Keith, 139 Fed. 128, 35 L. R. A. 213, affirmed, 192 U. S. 277; Central Stock Yards Co. v. Louisville & N. R. Co., 118 Fed. 113, 55 C. C. A. 63, 63 L. R. A., 213; same-styled case, 192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. 339; Covington Stock Yards Co. v. Delaware, L. & W. R. Co. (C. C.), 40 Fed. 101; Consolidated Fordg. Co. v. Southern Pac. Co., 9 I. C. C. 182; Excursion Car Co. v. Pennsylvania R. Co., 3 I. C. C. 577; In re Transportation of Fruit, 10 I. C. C. 360; Peavey Co. v. Union Pac. R. Co. (C. C.), 176 Fed. 409, affirmed 222 U. S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22; Interstate Com. Com. v. Diffenbaugh, 222 U. S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22; Fouche River Lumber Co. v. Bryant Lumber Co., 230 U. S. 816, 57 L. Ed. 1498, 33 Sup. Ct. 887; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 57 L. Ed. 1472, 33 Sup. Ct. 916. 39 Re Allowances to Elevators, 12 I. C. C. 85; Federal Sugar Refining Co. v. Baltimore & O. R. Co., 17 I. C. C. 40, 47. 40 Federal Sugar Refining Co. v. Baltimore & O. R. Co., 20 I. C. C. 200. 41 Baltimore & O. R. Co. v. United States, 200 Fed. 779, Opinion Commerce Court No. 38, p. 499. "We find Arbuckle Bros. owning the Jay Street terminal, used as a public terminal of petitioners within the lighterage limits. We find the Federal Sugar Refining Company, with its refinery at Yonkers, 10 miles north of the lighterage limits, owning and operating no public terminal for petitioners, and tendering petitioners no freight at any of their public terminals. So that we cannot see how any violation of either section 2 or section 3 can be predicated of the facts stated in the record." The Supreme Court held there was no undue discrimination and affirmed the decision of the Commerce Court.42 The Supreme Court held allowances to grain elevators proper,43 but that such allowances should be free from discrimination.44 The so-called tap-line allowances or divisions to short roads owned or controlled by a shipper must be without discrimination; otherwise, said the Supreme Court, "it amounts to a rebate. '45 What this allowance means was considered and discussed by the Commission in the Tap-Line case.46 The Supreme Court reversed the order of the Commission and held that tap-line allowances were legal.47 Industrial railways present similar questions. These have been discussed in Sections 181 and 239, ante. The meaning of the word "transportation" in this connection was defined by District Judge Rellstab in an opinion which, as to this question, seems to be comprehensive, clear and accurate. Under his definition, draying sugar from a refinery to a railroad was not transportation nor service in connection therewith within the legislative meaning, but was 42 United States v. Baltimore & O. R. Co., 231 U. S. 274, 58 L. Ed. 218, 34 Sup. Ct. 75. 43 Interstate Com. Com. v. Diffenbaugh, 222 U. S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22. 44 Union Pac. Ry. Co. v. Updike, 222 . S. 215, 56 L. Ed. 171, 32 Sup. Ct. 39. 45 Illinois Cent. R. Co. v. Interstate Com. Com., 206 U. S. 441, 444, 51 L. Ed. 1128, 27 Sup. Ct. 700. 46 Tap Line Case, 23 I. C. C. 277 and 549, and see Section 180, ante. 47 United States v. Louisiana & P. R. Co. (Tap Line Cases), 234 U. S. 1, 58 L. Ed. 1185, 34 Sup. Ct. 741, 34 I. C. C. 116. a drayage service falling normally upon the shipper.48 The decision of Judge Rellstab was reversed, but the opinion on appeal is not inconsistent with the definition of the court below, but is explainable on the theory that the Circuit Court of Appeals held that a payment made to all in like condition was not a rebate, whether an allowance within the meaning of Section 15 or not.49 § 244. Distribution of Cars.-Transportation includes cars and other vehicles and all instrumentalities and facilities of shipment or carriage, and it is the duty of every carrier subject to the provisions of the Interstate Commerce Act to provide and furnish transportation. The Commission is given jurisdiction to enforce this duty. Where carriers fail to furnish cars without discrimination this jurisdiction may be invoked in order that the governmental power of regulation may be used in compelling a just and equal distribution of cars and the prevention of an unjust and discriminating one. In determining whether a particular car distribution is just and equal or unjust and discriminatory, the Commission may consider the producing capacity of the shippers and all cars used in the transportation whether private cars or cars used by the carrier for its own fuel, and the courts have no jurisdiction over the question until after action thereon by the Commission.50 Where, however, the question involved is not the administrative question of what is a reasonable rule, but the judicial question of whether or not the rule in force has been complied 48 American Sugar Refining Co. v. Delaware, L. & W. Ry. Co., 200 Fed. 652. See also, Atchison, T. & S. F. Ry. Co. v. Interstate Com. Com., 188 Fed. 229 and 929, Opinion Commerce Court No. 2, p. 3, enjoining the order of the Commission in Associated Jobbers of Los Angeles v. Atchison, T. & S. F. Ry. Co., 18 I. C. C. 310. Commerce Court reversed, Interstate Com. Com. v. Atchison, T. & S. F. Ry. Co., 234 U. S. 294, 58 L. Ed. 1319, 34 Sup. Ct. 814. 49 American Sugar Refining Co. v. Delaware L. & W. Ry. Co., 207 Fed. 733, 125 C. C. A. 251. 50 Interstate Com. Com. v. Illinois Cent. R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. 155; Interstate Com. Com. v. Chicago & A. R. Co., 215 U. S. 479, 54 L. Ed. 291, 30 Sup. Ct. 163; Baltimore & O. R. Co. v. United States ex rel. Pitcairn Coal Co., 215 U. S. 481, 54 L. Ed. 292, 30 Sup. Ct. 164; Vulcan Coal Mining Co. v. I. C. R. Co., 33 I. C. C. 52. |