of rating become effective, the increased rates would result in unjust discrimination against interstate shipments of live poultry to St. Paul and Minneapolis, Minn., because of existing lower intrastate rates in Minnesota. The respondents answer that in the event proposed rates are permitted to become effective it is their purpose to bring about substantially similar increases in their intrastate rates. If the protestants or other shippers of live poultry should feel aggrieved by discrimination which may result from rates established because of our finding in this case, the way will be open by formal complaint to the Commission, as in other cases, to obtain relief from such discriminations as may be found to be unlawful." The rule just stated was applied in the Five Per Cent case,270 where it appeared that very low intrastate rates were not increased, notwithstanding which increases in interstate rates were permitted.

In another case,271 an interstate rate of 54 cents was found to have been justified, although the state rate for a similar haul in the same territory was but 32 cents. The Commission refused to reduce an interstate rate where the claim for such reduction was based upon the facts of the existence of lower intrastate rates, and declined to pass upon the question of discrimination because that question was not the specific issue presented. There it was said:272 "If any rate for transportation wholly within a state may be made the measure of the rate when that transportation moves from one state through or into another, the interstate rate so resulting would not be regulation of interstate commerce by the authority prescribed by the Constitution, but by the state. If the function of this Commission be to compute the sum of intrastate rates and prescribe the result as the measure of interstate rates, actual and direct regulation of interstate commerce by the states would be the result. That in the regulation of interstate commerce by the general government and of intrastate commerce by the state governments there result inconveniences and anomalies, such as is con

270 Five Per Cent Case, 31 I. C. C. 351.

271 Hans Rees' Sons v. S. Ry. Co., 30 I. C. C. 585.

272 Corporation Com. of Okla. v. A., T. & S. F. Ry. Co., 31 I. C. C. 532, 540, 541.

tended to exist here, might be conceded; but such facts, if they exist neither deprive us of the power nor relieve us from the duty of performing the obligations imposed upon us by laws of Congress authorized by the Constitution of the United States. Were we at liberty and inclined to abdicate the authority and abandon the duty imposed upon us by accepting the sum of state rates as a measure of interstate rates, the difficulty would not be removed."

66

Where the claim was made that interstate rates could be increased upon proof that intrastate rates were higher than the interstate rates proposed to be advanced, the Commission said:273 Unquestionably the law of Minnesota presents a situation to the carriers which makes it necessary for them either to adjust some interstate rates to the mileage rates prescribed by that law, to leave their intrastate and interstate rates out of line or to suffer material reductions below the intrastate rates fixed thereunder. While we may consider this fact, 'Congress does not directly or indirectly interfere with local rates by adopting their sum as the interstate rate,' L. & N. R. R. Co. v. Eubank, 184 U. S. 27, 42 and we cannot say that merely because a higher intrastate rate exists that an increase of an interstate rate to meet the state-made rate is justified, even though the transportation conditions as to distance and territory are similar. Nor do the facts here presented require that we consider the application of the decision of the Supreme Court in the Shreveport Case, H. E. & W. T. Ry. Co. v. United States, 234 U. S. 342.”

The cases discussed show the rule which, until the decisions now to be referred to were rendered, was followed by the Commission. Where a gateway was sought to be closed for interstate traffic although left open for intrastate traffic, the Commission held that the tariff proposing the change should be canceled. While some of the language used in the opinion is apparently not consistent with prior decisions of the Commission, the order can be justified on the ground that the proposed tariff was unlawful under Section 1 of the Act.274

273 Rates on Beer and Other Malt Products, 31 I. C. C. 544.

274 Class Rates between Stations in Louisiana, 33 I. C. C. 302.

In discussing live-stock rates, the Commission, without reference to any of the cases cited above, said:275 "The incongruity between the proposed interstate rates and intrastates rates is a circumstance which goes vitally to the propriety of the rates under suspension. To dispose of this issue it is necessary to have before us the facts and circumstances surrounding the establishment of these intrastate rates." In the Western Advance Rate case of 1915,276 the majority of the Commission, Mr. Commissioner Harlan and Mr. Commissioner Daniels dissenting, applied the rule that lower intrastate rates may justify denying increases in interstate rates in the proposed increases in the rates on live-stock and packing-house products, but not to the proposed increases in the rates on coal and the increased carload minimum on grain products. The principles stated in the quotations above given cannot, when taken from their setting, be harmonized. The Commission does not apply the rule stare decisis and, considering what was done in the several cases rather than what was said, it may be stated that when a carrier seeks to justify increases in its rates and the claim is made or the fact appears that there exist lower intrastate rates on the same commodity in the same general territory, the safe course is to make full proof showing the reasons for the existence of the lower rates and explaining why they have not been increased. In all cases where this relationship of interstate rates higher than intrastate rates exists, the protesting shippers should present the fact supported by such proof as is available. When the proof is made, the Commission, upon consideration of "all the facts and circumstances," will exercise its "flexible limit of judgment," permitting or denying the increases, as may seem just and proper in each case. A definite and uniform rule like that stated in the Live Poultry case, supra, is advisable and in Danville, Va., Class and Commodity Rates, 38 I. C. C. 742, was stated by Mr. Commissioner Harlan. This correct rule seems to have been accepted and former cases applying a

275 Live Stock Rates from Colorado, 35 I. C. C. 682, dissenting opinion, pp. 689-691.

276 Western Rate Advance Case

1915, 35 I. C. C. 497. For the discussion in the dissenting opinion, see pp. 654, et seq.

contrary rule ignored in a second Live Poultry Case, 49 I. C. C. 228, 237. The correct rule is stated, the Commission concluding: "This ruling we have since followed."

§ 309. The Weak and the Strong Roads.-Rates between the same points must, as a practical matter, be the same over all lines connecting the points; otherwise the line maintaining the lowest rates would receive all the business. When rates in a general and related territory are increased the increases must, to be of any benefit to the carriers, apply to all carriers serving the territory. It not infrequently occurs that in the general territory there are carriers whose need for additional revenue is indubitable; other carriers may be earning a fair return on their investments, while as to others still the need for additional revenue is uncertain. To consider the weak roads or the strong roads only would manifestly be unfair either to the public or to the investor in railroad property. Under such circumstances, it has been the rule of the Commission to measure the need for additional revenue by the condition of a road which is fairly representative of the general situation. This is manifestly proper, as each road, the weak and the strong, is necessary to the public service, and to destroy the weak road because there may be a road in the same territory which needs less revenue, benefits a few, but injures the many. Perhaps it might be proper that there should be regulation limiting the construction of a road where the territory is already sufficiently served by existing transportation facilities; but so long as the law permits the construction of roads and denies the right to pool freights, justice will permit the needs of the roads so constructed to be considered in prescribing rates for a related section. In the general rate advance cases heretofore heard by the Commission, these principles have been announced, and in the Western Advance Rate case of 1915, 35 I. C. C. 497, 560, 561, the authorities are collated.

In Transportation Act, 1920, Congress recognized the principles stated in this section by the enactment of Section 15a of the Interstate Commerce Act relating to "fair return" on "aggregate value," and by the enactment of other provisions requiring certificates of convenience and necessity before lines may be constructed or extended.

§ 310. Other Orders. The procedure in prescribing through routes and joint rates may be on complaint or without complaint, and so with the procedure to determine the maximum to be paid a shipper for services rendered or facilities furnished in connection with transportation.278 In each case there must be a hearing.

§ 311. Service of Orders of the Commission. Every order of the Commission shall be forthwith served upon the designated agent of the carrier.279

Every carrier must designate in writing an agent in the city of Washington, District of Columbia, upon whom service of all notices and processes may be made and file such designation with the Secretary of the Commission, and, in default of such designation, service of any notice or other process in any proceeding before the Commission may be made by posting such notice or process in the office of the Secretary of the Commission.280

The Commission has an official seal, which the law prescribes shall be judicially noticed.281

§ 312. Rehearings by the Commission. The Commission has authority to suspend or modify its orders upon notice, the manner of acting and the kind of notice being left to its discretion. Section 16a gives the Commission power to grant rehearings under such general rules as it may prescribe, but unless specially permitted otherwise, the order must be obeyed pending such rehearing. This section was added by the amendment of June 29, 1906, but the power has been exercised by the Commission since its organization.

In re Petition of Produce Exchange,282 a rehearing was denied the petitioner, who was not a party on the original hearing. In Myers v. Penn Co.283 the rehearing was denied, the petition not showing that any material testimony had been overlooked or misapprehended and no error of law

277 Sec. 15 of Act; Sec. 496, post. 278 Sec. 15 of Act; Sec. 500, post. 279 Sec. 16 of Act; Sec. 524, post. 280 Sec. 6, par. 2 of Act June 18, 1910; Sec. 632, post.

281 Sec. 17 of Act; Sec. 531, post. 282 Re Petition of Produce Exchange, 2 I. C. C. 588, 2 I. C. R. 412. 283 Myers v. Pennsylvania R. Co.,

2 I. C. C. 573, 2 I. C. R. 403, 544.