with, the courts have jurisdiction without prior action by the Commission.51

§ 245. Furnishing Cars-Car Service. The duty to furnish cars and the limitations in respect thereto on the power of the Commission was discussed in Sections 25 to 27, ante. The Transportation Act, 1920, gives the Commission powers, properly within its functions, over car service.52 The method of exercising these powers is similar to the procedure adopted in enforcing the other powers of the Commission.5

53

§ 246. Long-and-Short-Haul Provisions, History of.-Section 4 of the original Act to Regulate Commerce54 prohibited, "under substantially similar circumstances and conditions," a greater charge for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance. The proviso to this section gave power to the Commission to relieve carriers from the requirements thereof.

Judge Cooley, in construing this section and provision, announced principles which may be quoted, as such principles finally became the settled construction of the law. He said:55

"That which the act does not declare unlawful must remain lawful if it was so before; and that which it fails to forbid the carrier is left at liberty to do without permission of any one. The charging or receiving the greater compensation for the shorter than the longer haul is seen to be forbidden only when both are under substantially similar circumstances and

51 Morrisdale Coal Co. v. Penn. R. Co., 230 U. S. 304, 57 L. Ed. 1474, 33 Sup. Ct. 938; Penn. R. Co. v. Puritan Coal Co., 237 U. S. 121, 59 L. Ed. 867, 35 Sup. Ct. 484; Ill. C. R. Co. v. Mulberry Hill Coal Co., 238 U. S. 275, 59 L. Ed. 1306, 35 Sup. Ct. 760; Penn. R. Co. v. Clark Bros. Coal Mining Co., 238 U. S. 456, 59 L. Ed. 1406, 35 Sup. Ct. 896.

52 Transportation Act, 1920, Sec. 402; Interstate Commerce Act, Sec. 1, paragraph (10) to (17); Secs. 412 to 419, post.

53 See Car Supply Investigation, 42 I. C. C. 657, and comments of Mr. Commissioner McChord, 47 I. C. C. 760, et seq.

54 Act Feb'y 4, 1887, Chap. 104, 24 Stat. 379 U. S. Comp. Stat. 1916; Sections 8563, et seq., 3 Fed. Stat. Ann. 809, et seq. See, post, Sections 432 to 435.

55 Re Petition Louisville & N. R. Co., and Southern Pacific Railway and Steamship Co., 1 I. C. C. 31, 57, 1 I. C. R. 278.

conditions; and, therefore, if in any case the carrier, without first obtaining an order of relief, shall depart from the general rule, its doing so will not alone convict it of illegality, since if the circumstances and conditions of the two hauls are dissimilar the statute is not violated.

"Should an interested party dispute that the action of the carrier was warranted, an issue would be presented for adjudication, and the risks of that adjudication the carrier would necessarily assume. The later clause in the same section, which empowers the Commission to make orders for relief in its discretion, does not in doing so restrict it to a finding of circumstances and conditions strictly dissimilar, but seems intended to give a discretionary authority for cases that could not well be indicated in advance by general designation, while the cases which upon their facts should be acted upon as clearly exceptional would be left for adjudication when the action of the carrier was challenged. The statute becomes on this construction practical, and this section may be enforced without serious embarrassment."

In a later case, the Commission refused to follow the opinion of Judge Cooley,56 but, subsequently, the Supreme Court adopted the Cooley rule,57 with Mr. Justice Harlan vigorously dissenting. It was held that the burden of proof to show dissimilarity of circumstances was on the carrier, and that

56 Railroad Com. of Georgia Trammell et al. v. Clyde S. S. Co., 5 I. C. C. 324, 4 I. C. R. 120, 150.

57 The history of the judicial construction appears from the following cases: Int. Com. Com. v. Alabama M. R. Co., 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45; Int. Com. Com. v. Cincinnati, N. O. & T. P. Ry. Co., 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700; Parsons v. Chicago & N. W. Ry. Co., 167 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887; Int. Com. Com. v. Detroit, G. H. & M. Ry. Co., 167 U. S. 633, 42 L. Ed. 306, 17 Sup. Ct. 986; Louisville & N. R. Co. v. Behlmer, 175 U. S. 648, 44 L. Ed. 309, 20 Sup. Ct. 209; East Tenn., Va. & Ga. Ry. Co. v. Int.

Com. Com., 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. 516. See also Int. Com. Com. v. Clyde S. S. Co., 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512; Int. Com. Com. v. Louisville & N. R. Co., 190 U. S. 273, 47 L. Ed. 1047, 23 Sup. Ct. 687; Brewer v. Central of Ga. R. Co., 84 Fed. 258; Int. Com. Com. v. Western & A. R. Co., 88 Fed. 186; Spartanburg Board of Trade v. Richmond & D. R. Co., 2 I. C. C. 304, 2 I. C. R. 193; Boston & A. R. Co. v. Boston & L. R. Co., 1 I. C. C. 158, 1 I. C. R. 500, 571; Daniels v. Chicago R. I. See & P. R. Co., 6 I. C. C. 458, 476. Sections 161 to 163, ante, and 432 to 435, post.

"line," as used in the statute, meant a physical line and not a mere business arrangement.

§ 247. Relationship of Intermediate and Through Rates.The amended fourth section also makes it unlawful "to charge any greater compensation as a through route than the aggregate of intermediate rates subject to the provisions" of the Interstate Commerce Act.

This rule but makes statutory what was a general principle applied by the Commission. In the Patterson case58 the United States Supreme Court held that "Apart from statutory enactment it is prima facie unreasonable to charge more for a shorter than for a longer haul," and "To charge more for a through haul than the aggregate of the intermediate rates is likewise unreasonable." This case clearly upheld the Commission's practice in regard to this matter.

§ 248. Water Competition. The second paragraph of Section 4 of the amended Act provides:

"Whenever a carrier by railroad shall in competition with a water route or routes reduce the rates on the carriage of any species of freight to or from competitive points, it shall not be permitted to increase such rates unless after hearing by the Commission it shall be found that such proposed increase rests upon changed conditions other than the elimination of water competition."

§ 249. Power of the Commission Under the Fourth Section. The fourth section prohibits three things-(a) a greater charge for a shorter than a longer haul under the circumstances named, (b) a greater charge for a through route than the aggregate of the intermediate rates subject to the Act, and (c) an increase of rates which had been lowered in competition with water routes.

These provisions leave carriers no discretion. They must be obeyed unless the Commission orders otherwise. The exceptions to this absolute provision must be such as the Commission may prescribe. This is the fundamental difference between the old section as construed and the present law.

58 Patterson v. L. & N. R. R. Co., 269 U. S. 1, 70 L. Ed. 131, 46 Sup. Ct. 131.

The power is given the Commission upon application, after investigation, to authorize the carrier "to charge less for longer than for shorter distances," and to "prescribe the extent to which such designated common carrier may be relieved from the operation of the section."

The provision giving the right to prescribe the extent of relief which may be granted, might with reason be construed as being limited by the language giving authority to "charge less for longer than for shorter distances;" although the practice of the Commission has been to relieve from the provision relating to through routes and aggregate of intermediate rates, as well as limiting the relation of charges in the long-andshort-haul clause, and, as stated above in the Patterson case, the Commission's practice in this respect has been sustained.

Rates lawfully in existence when the amended law was passed were not required to be changed prior to the expiration of six months after such time, nor then, when application for relief was filed, "until a determination of such application by the Commission."

The Commission also has power to permit an increase of rates lowered to meet water competition "upon changed conditions other than the elimination of water competition."

In determining its power under this statute, the Commission held the law constitutional, that the provision for exceptions to the general clause did not give the Commission arbitrary or absolute power, that the burden was on the carrier to show facts authorizing an exception to the general rule, and that the object of the law was to make "a rule of well nigh universal application," deviation from which could only be authorized "to meet transportation circumstances which are beyond the carrier's control," and then only to the extent necessary to meet such conditions.59 The orders of the Commission in the cases in which these principles were announced were set aside by the Commerce Court. Upon appeal, the

V.

59 Railroad Com. of Nevada Southern Pac. Co., 21 I. C. C. 329, 341; Spokane, City of, v. Northern Pac. R. Co., 21 I. C. C. 400.

60 Atchison, T. & S. F. Ry. Co. v. United States, 191 Fed. 856, Opinion Commerce Court Nos. 50, 51, p. 229.

Supreme Court reversed the Commerce Court and sustained the jurisdiction of the Commission.61

The further limitations on the right of the Commission to grant relief from the long-and-short-haul provision of Section 4 contained in Transportation Act, 1920, are discussed in Sections 161 to 165, ante.

§ 250. Ownership of Water Carriers by Railroads. The Panama Canal Act makes it unlawful after July 1, 1914, for "any railroad company or other common carrier subject to the act to regulate commerce to own, lease, operate, control, or have any interest whatsoever (by stock ownership or otherwise, either directly, indirectly, through any holding company, or by stockholders or directors in common, or in any other manner) in any common carrier by water operated through the Panama Canal or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic or any vessel carrying freight or passengers upon said water route or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic; and in case of the violation of this provision each day in which such violation continues shall be deemed a separate offense."

Jurisdiction was given the Commission, after hearing, "to determine questions of fact as to the competition or possibility of competition." This determination was authorized to be made on the application of the carrier, or shipper, or on the initiative of the Commission itself, and in all cases the Commission's order is final.62

If an "existing specified service by water other than through the Panama Canal is being operated in the interest of the public and is of advantage to the convenience and commerce of the people," and if "such extension will neither exclude, prevent, nor reduce competition on the route by water," the Commission may extend the time beyond July 1, 1914, under the conditions prescribed in the statute.63

The principles upon which the Commission has acted in de

61 United States v. Atchison, T. & S. F. Ry. Co., Intermountain Cases, 234 U. S. 476, 58 L. Ed. 1408, 34 Sup. Ct. 986; Sec. 163, ante.

62 Act August 24, 1912; Secs. 444, 445, post.

63 Act August 24, 1912; Sec. 446, post.