vested right in an undue preference. Mere lapse of time cannot be permitted to rob a locality of its right to relief from a schedule which in view of changed conditions would be a manifest discrimination if continued.54 Το remove an unjust preference an advance in rates may be permitted 55 or a reduction may be ordered. 56 A reduction may also be suspended when the effect of such suspension will be to prevent an unjust discrimination.57 In case of any such changes the burden is then on the carrier to adjust its rates in such a way as to meet the conditions that will arise in consequence thereof, 58 and the Commission in ordering the change does not thereby give its approval to the necessary readjustment.59 When an undue discrimination is made to appear, the Commission will not be deterred from ordering a change by fear of disrupting commercial conditions, 60 or by the fact that it will lead to a disturbance of long-standing adjustments,61 or interfere with a general scheme adopted by several roads entering the same territory.62 But a long-established rate has a certain presumption in its favor, and the Commission will give much weight to rates to which commercial conditions have adjusted themselves,63 and will pro

54 Mississippi River Case, 28 I. C. C. 47.

55 Tantz Bros. & Co. v. L. V. Ry., 17 I. C. C. 167.

56 Kindel v. N. Y., N. H. & H. Ry., 15 I. C. C. 555; Scott Paper Co. v. Penn. Ry., 26 I. C. C. 601.

57 Board of Trade of Chicago v. I. C. Ry., 26 I. C. C. 545.

58 Baer Brothers' Mercantile Co. v. M. P. Ry., 17 I. C. C. 225; Chattanooga Feed Co. v. A. G. S. Ry., 22 I. C. C. 480.

59 In re Advances on Manganese Ore, 25 I. C. C. 663.

60 Middlesboro Board of Trade v. L. & N. Ry., 27 I. C. C. 14.

61 Kansas City Transportation Bureau v. A., T. & S. F. Ry., 15 I. C. C.

491; Columbia Grocery Co. v. L. & N. Ry., 18 I. C. C. 502; Milburn Wagon Co. v. L. S. & M. S. Ry., 22 I. C. C. 93; Indianapolis Freight Bureau v. C., C., C. & St. L. Ry., 26 I. C. C. 53; Wickwire Steel Co. v. N. Y. C. & H. R. Ry., 27 I. C. C. 168. 62 Black Mountain Coal Land Co. v. Southern Ry., 15 I. C. C. 286.

63 Ohio Allied Milk Product Shippers v. E. Ry., 21 I. C. C. 522; Chattanooga Feed Co. v. A. G. S. Ry., 22 I. C. C. 480; Chamber of Commerce of New York v. N. Y. C. & H. R. Ry., 24 I. C. C. 55; Winsor Coal Co. v. C. & A. Ry., 52 Fed. 716. But compare Matthews v. Board of Corp. Commissioners, 106 Fed. 7.

ceed with caution when a change of one rate will necessitate a widespread readjustment.64 The carrier also must pay respect to existing conditions; and where an industry has been required to pay for a long period of time rates of freight on raw material which bear certain relations to rates charged to competitors at other points, a marked change in such rate relations in favor of competing industries cannot be made without an attendant presumption of undue discrimination.65

§ 762. Discrimination explained by local circumstances. Circumstances may, however, so explain the difference between the rates compared as to deprive the lower of any bearing on the higher. "It is earnestly contended by counsel for the appellant that the rates at the longer-distance points being shown to be reasonably remunerative, and the rates at the shorter-distance points being admitted to be higher, the latter must, of logical necessity, be found to be unreasonably high, and therefore unreasonable and unjust, and such as give an undue preference to the longer-distance points, and subject the shorter-distance points to an undue and unreasonable prejudice and disadvantage. It will be perceived that this argument excludes all consideration of the force of competition, and ignores its presence at the longer-distance points and its comparative absence from the shorter-distance points. What is a reasonable action, or a reasonably remunerative rate for carriage, at a given time and place, necessarily has relation to the circumstances and conditions bearing upon the actor or upon the carrier at the time and place." 66 As will be seen in the subsequent discussion, competition is the circumstance which is most commonly relied on to justify discrimination; but any of the circumstances which were discussed

64 Southwestern Shippers' Traffic Ass'n v. A., T. & S. F. Ry., 24 I. C. C. 570.

65 Howard Mills Co. v. Mo. Pac. Ry., 12 I. C. C. 258; Detroit Chem

ical Works v. M. C. Ry.,
357.

13 I. C. C.

66 McCormick, J., in Interstate Com. Comm. v. Western & A. R. R., 93 Fed. 83.

in former chapters as affecting the distance-charge would be of equal pertinence. An apparent discrimination may therefore upon an examination of all the circumstances prove to be a reasonable and equitable adjustment.

§ 763. Distance as a factor in rate making.

In comparing rates from two points to a common destination, distance is the first factor to consider, though it is not controlling nor always the most important. As has often been stated, rates are not made on a ton-mile basis, and they cannot be expected to bear an exact proportion to the distance.67 Rates may sometime be made on an arbitrary mileage basis; but the commerce of the country is now established on a different basis, and the Commission at this time declines to undertake such a revolution as a change to a mileage basis would involve.68 The Commission has held that in the case of long hauls, ranging from 650 to 1245 miles, a considerable addition in mileage could well be overlooked, especially where the necessity exists of maintaining points of production and consumption on an equality with their competitors.69 If, however, the localities are neighboring ones and the conditions substantially the same, distance should govern.70 Spokane was right in

67 LaCrosse M. & J. Union v. C., M. & St. P. Ry., 2 Int. Com. Rep. 9, 1 I. C. C. 629; Business Men's Association v. C., S. P. N. & O. Ry., 2 Int. Com. Rep. 41, 2 I. C. C. 52; Business Men's Association v. C. & N. W. Ry., 2 Int. Com. Rep. 48, 2 I. C. C. 73; Lincoln Board of Trade v. B. & N. Ry., 2 Int. Com. Rep. 95, 2 I. C. C. 147; Poughkeepsie Iron Co. v. N. Y. C. & H. R. Ry., 3 Int. Com. Rep. 248, 4 I. C. C. 195; James & M. B. Co. v. C., N. O. & T. P. Ry., 3 Int. Com. Rep. 682; Board of Railway Commissioners v. A., T. & S. F. Ry., 8 I. C. C. Rep. 304; Kansas City Transportation Bureau v. A., T. & S. F. Ry., 16 I. C. C. 195; Greater

Des Moines Committee v. C., M. & St. P. Ry., 18 I. C. C. 73; Omaha Grain Exchange v. C. & N. W. Ry., 19 I. C. C. 424; Interstate Commerce Commission v. Union Pac. Ry., 222 U. S. 541, 32 Sup. Ct. 108, 56 L. ed. 308.

68 Wichita Board of Trade v. A. & S. Ry., 29 I. C. C. 376.

69 Lumber Rates Texas, etc., to Oklahoma and Missouri, 28 I. C. C. 471. See also William Co. v. U. S. & P. Ry., 16 I. C. C. 482.

70 James v. E. T., V. & G. Ry., 2 Int. Com. Rep. 609, 3 I. C. C. 225; Eau Claire Board of Trade v. C., M. & St. P. Ry., 4 Int. Com. Rep. 65, 5 I. C. C. 264; Hill v. N. C. & St. L.

its contention that a schedule which permits merchandise to be hauled from the east over the Cascade mountains to Seattle and back again to the consumer on the east side of that range must be wrong."1 In any case the relative difference should not be arbitrary or unreasonable.72 The comparative distance should be tested by the distance over the shortest available route from the place of shipment to the point in question.73

§ 764. Difference between through and local rates.

As a general rule the through rate should be less than the sum of the intermediates on account of the fewer terminal services involved.74 Hence it follows that a through rate over several roads may be proportionally smaller than the local rate over one of the roads; and in the division of a through rate one road may, therefore, properly accept a smaller amount than it would charge for a carriage to or from its own terminus. Such a propor

Ry., 6 I. C. C. Rep. 343; Brewer v.
L. & N. Ry., 7 I. C. C. Rep. 224;
In re Alleged Violation of Act, 8 I. C.
C. Rep. 290; Union Tanning Co. v.
Southern Ry., 26 I. C. C. 159; Edgar
& Sons v. L. & N. Ry., 26 I. C. C.
181; Cherokee Lumber Co. v. A. C.
L. Ry., 27 I. C. C. 438; Traffic Bu-
reau of Nashville v. L. & N. Ry., 28
I. C. C. 533; Kansas Wholesale
Grocery Co. v. A. & W. Ry., 32 I. C.
C. 139.

71 City of Spokane v. No. Pac. Ry., 19 I. C. C. 162.

72 Toledo Produce Exchange v. L. S. & M. S. Ry., 3 Int. Com. Rep. 830, 5 I. C. C. 166; Gerke Brewing Co. v. L. & N. Ry., 4 Int. Com. Rep. 267, 5 I. C. C. 596; Rea v. M. & O. Ry., 7 I. C. C. Rep. 43.

73 Milwaukee Chamber of Commerce v. C., M. & St. P. Ry., 7 I. C. C. Rep. 481.

74 Montgomery Freight Bureau v. W. Ry. of A., 14 I. C. C. 150; Williams Co. v. V., S. & P. Ry., 16 I. C. C. 482; Winona Carriage Co. v. Penn. Ry., 18 I. C. C. 334; Bott Bros. Mfg. Co. v. C., B. & Q. Ry., 19 I. C. C. 136; Railroad Commission of Nevada v. N. C. O. Ry. & S. V. Ry., 22 I. C. C. 205; Bluefield Shippers' Ass'n v. N. & W. Ry., 22 I. C. C. 519; Lumbermen's Exchange of St. Louis v. A. & S. R. Ry., 24 I. C. C. 220; Railroad Commission of Oregon v. So. Pac. Ry., 24 I. C. C. 273; Appalachia Lumber Co. v. L. & N. Ry., 25 I. C. C. 193; In re Advances on Potatoes, 25 I. C. C. 247; Jubitz v. So. Pac. Ry., 27 I. C. C. 44; Washington Milling Co. v. N. & W. Ry., 27 I. C. C. 546; Iowa State Board v. A. E. Ry., 28 I. C. C. 193; Boston Chamber of Commerce v. A., T. & S. F. Ry., 28 I. C. C. 230.

tional rate cannot be used as a conclusive standard by which to measure the reasonableness of the intermediate rate,75 nor is it an undue preference against its own terminus.76 Therefore, the inland portion of export rates may, without undue discrimination, be less than the domestic rate," and conversely, a carrier may lawfully make an import rate from a port in the United States to an interior destination less than its domestic rate over the same route.78 But in order to justify such a practice, it must appear when the commodity was delivered to the domestic carrier that it was intended for export. Otherwise the domestic rate must be charged." A shipper's "state of mind in relation to the goods-that is, his intention to export them and his partial preparation to do so"-does not make them export traffic.80 But the rates to a given port may not vary because the ultimate destination of the goods is different.81 As between two points on a connecting line, it would seem that the carrier should not

75 Southern Illinois Millers' Ass'n v. L. & N. Ry., 23 I. C. C. 672; Southwestern Shippers' Traffic Ass'n v. A., T. & S. F. Ry., 24 I. C. C. 570; Wichita Board of Trade v. A., T. & S. F. Ry., 25 I. C. C. 625; New Pittsburgh Coal Co. v. H. V. Ry., 26 I. C. C. 121; Board of Trade of WinstonSalem v. N. & W. Ry., 26 I. C. C. 146; Pulp and Paper Manufacturers' Ass'n v. C., M. & St. P. Ry., 27 I. C. C. 83; Sandstone, Minn.-Missouri River Building Stone Rates, 28 I. C. C. 269.

76 Parsons v. Chicago & N. W. Ry., 63 Fed. 903, 11 C. C. A. 489, affirmed, 167 U. S. 447, 42 L. ed. 231, 17 Sup. Ct. 887; Tozer v. United States, 52 Fed. 917, 4 Int. Com. Rep. 245; Crews v. Richmond & D. R. R., 1 Int. Com. Rep. 703, 1 I. C. C. 401; McMorran v. Grand Trunk Ry., 2 Int. Com. Rep. 604, 3 I. C. C. 252.

77 Texas & Pac. Ry. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. ed. 940, 16 Sup. Ct. 666; Kemble v. Boston & A. R. R., 8 I. C. C. Rep. 110; Re Export and Domestic Rates, 8 I. C. C. Rep. 214, modifying the view earlier expressed in Detroit Board of Trade v. Grand Trunk Ry., 2 Int. Com. Rep. 199, 2 I. C. C. 315; New York Produce Exch. v. New York C. & H. R. R., 2 Int. Com. Rep. 553, 3 I. C. C. 137; Erickson Co. v. C., M. & St. P. Ry., 29 I. C. C. 414.

78 Joseph Ullman v. Adams Express Co., 14 I. C. C. 340; New Orleans Board of Trade v. I. C. Ry., 23 I. C. C. 465.

79 Port Arthur Milling Co. v. T. & S. F. Ry., 28 I. C. C. 696.

80 Coe v. Erroll, 116 U. S. 517, 29 L. ed. 715, 6 Sup. Ct. 475.

81 New Orleans Board of Trade v. I. C. Ry., 23 I. C. C. 465.