but to the rate as a whole. Where an unreasonable joint through rate has been collected, and the only question involved is damages upon past shipments, the liability of the parties to such rate is joint and several.56 And indeed a through rate for transportation over a line composed of two or more separate roads greater than would be reasonable and sufficient if the same transportation were over a single road is not in all cases unjust. For the Commission has often recognized that rates over a two-line haul may properly exceed what would be reasonable rates for same distance and under same conditions over a one-line haul. 58 As between two joint tariffs, naming different rates between the same points, the one properly concurred in is the legal rate, though it names higher charges than the other.59 As a matter of rate structure a through rate is often made by adding rate to basing point, with an “abitrary.” 60

§ 875. Joint rate lower than combination.

It is permissible for two carriers to combine upon a joint through rate over both lines, which shall be less than the sum of their separate rates.61 In other words, it is entirely proper that two carriers should combine to form a single route, join in one haul, and name a single rate for the haul. It is not only permissible, but extremely desirable, that this should be done; and the lower through rate thereby secured is quite justifiable. The through rate is almost universally less in proportion to distance than the local rate; the carriers can afford to make it lower; if they were compelled to measure the one by the other, there would be no inducement to form through

55 People's Fuel Supply Co. V. Grand Trunk W. Ry., 27 I. C. C. 24. 56 Webster Grocer Co. v. C. & N. W. Ry., 21 I. C. C. R. 20.

57 Loup Creek Colliery Co. v. Virginian Ry., 12 I. C. C. 471.

58 Maricopa County Commercial Club v. S. P. Co., 22 I. C. C. R. 429.

59 Kennedy & Co. v. St. L. S. W. Ry., 22 I. C. C. R. 277.

60 Aransas Pass Channel & Dock Co. v. G. H. & S. A. Ry., 27 I. C. C. 403.

61 St. Louis Hay & Grain Co. v. Illinois Cent. R. R., 11 C. C. Rep. 486.

lines, and shippers would be annoyed by having to deal with a succession of local roads instead of with one road acting for all. But if the through rate is less in proportion than the local, some of the carriers, if not all of them, must accept for their division of the through rate a sum less than the local rate. This is very manifest. It is well known, also, that many influences, such as competition on the through haul, affect the making of a through rate that may not bear at all, or if at all in less degree, upon the local rates.63 62

§ 876. Concurrence of carriers concerned.

In order to be considered as properly in force, through routes and joint rates must be voluntarily established." It would be improper for one road to establish a joint rate from a point on another road without the concurrence of the latter.64 A joint rate over several lines not concurred in by such connecting lines is in direct contravention of the rules of the Commission made under section 6.65 Where no joint through rate is thus in effect, the combination of separately established rates via route of movement constitutes the through rate.66 An initial line publishing what purports to be a joint tariff, but which is not a legal tariff because not concurred in by its connections, is liable in damages for whatever amount shippers suffer.67 For an initial line, publishing joint rates lower than combination without securing concurrence of connections, must protect such rate to a shipper who made a contract based on the lower rate.68 While the fact that a through route extends over two railroads may lead to a lower rate than

02 Lippman v. Illinois Cent. R. R., 2 Int. Com. Rep. 414, 2 I. C. C. 384. 63 Craig Lumber Co. v. V. Ry., 19 I. C. C. R. 114.

64 Coal Rates on the Stony Fork Branch, 26 I. C. C. 168.

65 De Camp Bros. & Yule Iron, Coal & Coke Co. v. V. & S. F. Ry., 22 I. C. C. 274.

66 Fish & Co. v. N. Y. C. & St. L. R. R., 19 I. C. C. R. 452.

67 Edison Portland Cement Co. v. D., L. & W. R. R., 22 I. C. C. R. 382.

68 De Camp Bros. & Yule Iron Coal & Coke Co. v. V. & S. W. Ry., 22 I. C. C. R. 274.

if it were over a single line, it may justifiably have the opposite effect; the rate may be justifiably lower between two termini when the route is over a single road than when it is over two roads.69 Though not increased because of the joint carriage, the rate may well be maintained at the sum of the local charges of the carriers; and no objection can be raised to such a rate. No one has a right to demand that the through rate be a reduced rate.70

§ 877. Share of separate carrier as evidence.

Although in the case of a joint rate it is the entire rate, and not the proportionate part which each carrier receives on the division, which directly interests the shipper, yet that division is not without significance in determining what are reasonable rates for the whole distance on the lines in question; and he is entitled to inquire into such division when he complains that the joint rate is unlawful, for the amount so received by the different carriers may throw light upon the reasonableness or justice of the aggregate charge.71 But plainly a railroad may charge more for transporting a local passenger between the two termini than it receives from transporting a through passenger over the same distance, in the division of the through rate with other railroads.72 While a division of a through rate long accepted by a carrier may often be pertinent evidence, it is not a sound final test of the reasonableness of the through rate itself. Nor is the rate per ton-mile the generally accepted basis in this country for making up interstate rates.73 A carrier may deem it good

69 Corporation of Birmingham v. Manchester S. & L. Ry., 10 Ry. & Can. Tr. Cas. 62.

70 King v. New York, N. H. & H. R. R., 3 Int. Com. Rep. 272, 4 I. C. C. 251.

71 Parkhurst v. Pennsylvania R. Co., 2 I. C. C. Rep. 131, 2 Int. Com. Rep. 78; Railroad Commission v. Savannah, F. & W. R., 5 I. C. C.

Rep. 13, 3 Int. Com. Rep. 688; Trammell v. Clyde S. S. Co., 5 I. C. C. Rep. 324, 4 Int. Com. Rep. 120; Warren-Ehret Co. v. Central R. R., 8 I. C. C. Rep. 598.

72 Union Pacific Ry. v. United States, 117 U. S. 355, 29 L. ed. 920, 6 Sup. Ct. 772.

73 Bulte Milling Co. v. C. A. R. R., 15 I. C. C. 351.

business policy to secure a part of a through haul on a large volume of traffic, and to accept a division which is much lower than local rates, and if no violations of law are created, no valid objection can be made against such division.74

§ 878. Through rate given although transit is broken.

A very important feature in modern railroading is the permission given to the owners of goods in transit to have the advantages of the through rate upon paying a very small additional premium, although the transit is interrupted for a time to do something to the commodities in question at some intermediate point, to prepare them for market, or even to entirely change their form by manufacture of some sort.75 Thus the railroads not uncommonly grant the privilege of cleaning in transit, of bagging in transit, of compressing in transit, and of milling in transit.76 Shippers are not entitled as a matter of right to mill grain in transit and forward the milled product under the through rate in force on the grain from the point of origin to the place of ultimate destination." But the allowance of the privilege by a carrier to shippers in one section must be without wrongful prejudice to the rights of shippers in another section served by its line.78

§ 879. Policing of transit privileges.

The most thorough discussion of this problem of privileges in transit is in an early opinion of the Commission,79

74 New Albany Furniture Co. v. M. J. & K. C. R. R., 13 I. C. C. 594. 75 Koch v. Pennsylvania Ry., 10 I. C. C. Rep. 675.

76 For the service of the carrier in handling reconsignments where transit is broken, the total cost may be higher than the through rate where the transportation is not interrupted. St. Louis H. & G. Co. v. I. C. R. R., 11 I. C. C. 486.

77 Diamond Mills v. B. & M. R. R., 9 I. C. C. Rep. 311.

78 A fair price may be charged by the carrier for transit privileges, sufficient not merely to recoup its bare cost but a fair profit as well. Spregle v. S. Ry., 25 I. C. C.

71.

79 Re Alleged Unlawful Rates for Cotton, 9 I. C. C. Rep. 121.

in regard to the practice of "floating cotton," the essential transportation feature of which was carrying the cotton to a compress, receiving it again in the compressed state, and transporting it to destination at the through rate in force from the point of origin. It was held that the carrier may, as part of a contract for through shipment, allow the cotton to be stopped off for the purpose of grading and compression; but the privilege enters into and becomes part of the service covered by the rate, and should be specified in the published tariffs.81 The Commission said in substance that this cotton is in no possible construction at the compress point for any other purpose than a temporary one in transit; and that although an indispensable element in every through shipment would seem to be a contract for such through service, an agreement between the parties at the inception of the carriage that the freight was to go to some destination beyond to be designated later was enough.82

§ 880. Proportional rates.

A proportional rate is a part or remainder of a through rate, and as such must be taken in its relation to the whole rate.83 Recently the Commission has held the withdrawal of proportional rates from upper Mississippi River crossings while leaving them in effect from lower crossing not to be justified.84 To a certain extent the Commission recognizes the propriety of proportional rates, which differ from corresponding local rates, and has acted upon those rates when established by the carrier. It has said that a proportional rate, applying on through traffic might well be less than

85

80 See Re Rates & Practices of Mobile & O. R. R., 9 I. C. C. 373.

81 See the general discussion of all these matters in the Transit Case, 25 I. C. C. 130.

82 The same matters were discussed in the Transit Case, 26 I. C. C. 204.

83 Boney & Harper Milling Co. v. A. C. L. R. R., 28 I. C. C. 383.

81 Grain Rates in C. F. A. Territory, 28 I. C. C. 549.

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