or milling-in-transit charges, or in the granting of transit privileges at one point which are denied at another, or in the allowance of elevator charges at one point and not at another, or in the granting of round-trip and week-end fares to one point which are refused to others, 10 or in making joint or through rates at one point and not at another, or in performing a switching service at one point which is refused at another, 12 or in attempting to make the rate depend on whether the goods were brought to the place of shipment by the defendant carrier. 13 Where the rate to an intermediate point is not shown to be unreasonable in itself and there is no competition between such point and a farther distance point enjoying a lower rate from the same point of origin, section 3 is not violated. 14 Nor can a complaint alleging undue prejudice. against a city in that it is deprived of joint rates be sustained when the joint rates have been canceled at the points alleged to have been unduly preferred.15 No discrimination can be found in favor of a point to which the commodity involved never moved, 16 nor can discrimination against a distributing point be predicated merely upon the fact that the combination of in-bound and out-bound rates on such distributing point exceeds the combination on a competitive distributing point.17 An undue discrimina 11 Coal Rates on the Stony Fork Branch, 26 I. C. C. 168. 12 Alan Wood, Iron & Steel Co. v. P. Ry., 22 I. C. C. 540. 13 Bascom Co. v. A., T. & S. F. Ry., 17 I. C. C. 354. 14 Kellogg Toasted Corn Flake Co. v. M. C. Ry., 24 I. C. C. 604. 15 Baker Commercial Club v. O. W. R. R. & N. Co., 25 I. C. C. 281. 16 Consumers' Ice Co. v. A., T. & S. F. Ry., 18 I. C. C. 277. 17 In re Advances on Knitting Factory Products, 25 I. C. C. 634. tion against a given point may be effected as well by a joint rate as by a one-line rate; and the carrier that is a party to a joint rate is no less responsible when the discrimination under such rate can be controlled by it, than it would be in similar circumstances under its own one-line rate, 18 but it is not responsible for rates made by a connecting road.19 If a joint rate is made with a carrier in a foreign country, and the portions of the combination rate made by the American carrier are just and reasonable, any discrimination that exists must be due to the foreign carrier, over whom the Commission has no jurisdiction.20 Where one railroad is owned by another, although operated entirely separately, the Commission is supposed to regard the two railroads as one in determining whether the rates established by them unduly discriminate between different sections.21 In other words, the test of discrimination is the ability of one of the carriers participating in a through route to put an end to the discrimination by its own. act. 22 § 769. Discrimination resulting from intrastate rates—the Shreveport case. The discrimination with which the Commission has had most frequent occasion to deal was that resulting from the act of the carrier. In fact it had become almost axiomatic that if the carrier was not a free agent,-if its action was forced by conditions which it could not control, or was compelled by public authority, then the resulting discrimination was not one for which the carrier could be held responsible. Hence in a proceeding attacking a rate adjustment between various competitive coal fields to a large number of consuming centers, the Com 18 Rates from Walsenburg Coal Field, 26 I. C. C. 85. 19 Crews v. R. & D. Ry., 1 I. C. C. R. 703, 1 I. C. C. 401. 20 Fullerton Lumber & Shingle Co. v. B. B. & B. C. Ry., 25 I. C. C. 376. 21 Receivers' & Shippers' Ass'n of Cincinnati v. C., N. O. & T. P. Ry., 18 I. C. C. 440. 22 Elevator Allowances at St. Louis and East St. Louis, 30 I. C. C. 696. mission held that if a purely State rate to those centers was involved, it was powerless to make an affirmative order, although it might properly note the existence of discrimination.23 This was bound to give rise to an awkward situation, for where jobbing centers are situated near State lines, an advance of the interstate charge and the retention of the existing charge on State shipments must necessarily result in discrimination against the former.24 The whole matter has now been settled in a most satisfactory manner by the recent decision of the Supreme Court in the Shreveport case.25 Complaint was made that a carrier operating between Dallas, Texas, and Shreveport, Louisiana, made rates eastward from Dallas to other Texas points much lower than the rates from Shreveport to those points, although the distance from Shreveport might be considerably less. For instance, the rate on wagons from Dallas to Marshall, Texas, a distance of 147.7 miles, was 36.8 cents, while from Shreveport to Marshall, a distance of 42 miles, it was 56 cents. The defense of the carrier was that its rates between Texas points were fixed by the Texas Railroad Commission, and that such rates were outside the jurisdiction of the Interstate Commerce Commission. The latter held that while intrastate rates might be beyond its control, the resulting discrimination against points in other States was not; and it ordered that all rates between Dallas and Shreveport be put upon a distance basis and so adjusted as to avoid discrimination. The carrier appealed on the ground that since the discrimination found by the Commission to be unjust arose out of the relation of intrastate rates maintained under State authority to interstate rates that have been upheld as reasonable, its correction was beyond 23 Wilmington Tariff Ass'n v. C. P. & V. A. Ry., 9 I. C. C. 48; Andy's Ridge Coal Co. v. Southern Ry., 18 I. C. C. 405; Saunders & Co. v. Southern Express Co., 18 I. C. C. 415. 24 In re Rates for Single Packages, 22 I. C. C. 328. 25 Houston & Texas Ry. v. United States, 234 U. S. 342, 58 L. ed. 1341, 34 Sup. Ct. 833. the Commission's power. This contention was not sustained. The Supreme Court, speaking through Mr. Justice Hughes, said, "Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule." Congress has "the power to foster and protect interstate commerce, and to take all measures necessary and appropriate to that end, although intrastate transactions of interstate carriers may thereby be controlled." The court also found that section 3 of the Act vested the Commission with power to make the order in question. This decision is directly in line with the previous decisions of the court holding that interstate commerce is a unit subject in all its parts to Federal control. 770. Discrimination by means of rate adjustments. The rules against discrimination apply not only to rate schedules imposed for the first time, but also to all advances or reductions in rates. It is obvious that rates may be so related to each other that to change one without changing the others would necessarily result in an unjust discrimination.26 Hence where rates are too low and an increase is justified, the advance should be made in such a manner as not to discriminate.27 It is also recognized that rates may be advanced for the express purpose of equalizing rates in effect over other roads. 28 This interdependence of rates makes it necessary when passing upon the propriety of an increase in rates to inquire whether such 26 Davenport Commercial Club v. Y. & M. Ry. Co., 20 I. C. C. 19; Lumbermen's Exchange of St. Louis v. A. & S. R. Ry., 24 I. C. C. 220. If rate from New York to C. F. A. points is discriminatory as compared with the rate to same points from Detroit, the adjustment may be rectified only by an increase in the Detroit rate or a cut in the rate from 27 In re Advances on Ice, 24 I. C. C. 660; In re Advances on Oil, 25 I. C. C. 349. 28 Omaha-Wisconsin Grain Rates, 28 I. C. C. 602. increase would result in an undue discrimination, 29 and a carrier may properly ask whether an enforced reduction to one point will not entail reductions to other points which it cannot afford to make.30 But if the rates of an existing schedule do not bear a just or equitable relation to each other, the fact that advances or reductions would disturb the existing relation is not a conclusive argument against the change. 31 On the other hand, the effect which a given rate, if ordered, will have upon the whole schedule of rates cannot be ignored by the Commission, and the consequences which it foresees may well cause it to hesitate to require a change. To a petition for the establishment of carload rating on cotton-piece goods between the Mississippi and Missouri rivers and not elsewhere, the Commission answered that to make such an order would throw out of balance the relation of rates on cotton-piece goods throughout the country-a consequence which it might well hesitate to incur.32 In such cases, therefore, the necessity for relief must be clear and imperative. In dealing with certain commodities, especially those of low grades, it has long been the custom of carriers to group a number of stations in a wide expanse of territory and place the whole under one rate. 33 This involves, of course, a considerable disregard of distance and varying degrees of inequality, but this is not of necessity unreasonable when the situation is viewed from every standpoint.34 The chief justification of the practice lies in the fact that it places all producers in the group on the same footing at a market. 35 A group rate, however, must not be so arranged as to produce an undue discrimination. To place 29 Grain Rates in C. F. A. Territory, 28 I. C. C. 549. 30 Columbia Chamber of Commerce v. So. Ry., 28 I. C. C. 339. 31 Fairmont Creamery Co. v. A., T. & S. F. Ry., 28 I. C. C. 661. 32 Taylor Dry Goods Co. v. Mo. Pac. Ry., 28 I. C. C. 205. 33 Kansas City Transportation Bureau v. A., T. & S. F. Ry., 16 I. C. C. 195; Moise Bros. Co. v. C., R. I. & P. Ry., 16 I. C. C. 550. 34 Chicago Lumber & Coal Co. v. T. S. Ry., 16 I. C. C. 323. 35 Ferguson Saw Mill Co. v. St. L., I. M. & S. Ry., 18 I. C. C. 396. |