be lines connecting with it, in order to have the situation in which the section applies."1

$ 884. Extent of these requirements.

Contracts by a railroad company with other companies for the establishment of through routes and through rates for the continuous carriage of interstate traffic do not violate section 7 of the Act prohibiting a combination to prevent the carriage of freight from being continuous.12 Nor is it violated by a refusal of the connecting carrier to take the goods at the valuation agreed on by the first carrier. 13 What is an undue or unreasonable preference or advantage under section 3 of the Act is a question of fact, but, subject to militating circumstances, rates ought to be relatively equal and reasonable; 14 and the carrier has no right to make rates so as to overcome the natural advantages of one place over another, or so as to build up one place or section at the expense of another.15 The point where traffic is interchanged in through routing is a matter for the carriers to determine in first instance unless they disagree.16 So far as undue preference in serving localities is concerned facilities may be denied in any manner, as by an unreasonable arrangement of time schedules. 17 The provisions of the section apply not merely to the carriers themselves, but with equal force to their officers and employees; therefore the Act is violated by employees who by concerted action strike in order to avoid receiving cars from a connecting carrier. 18

In Freight Bureau v. Cincinnati, N. O. & T. P. Ry., 4 Int. Com. Rep. 592, 6 I. C. C. 195.

12 Kentucky & I. Bridge Co. v. Louisville & N. R. R., 37 Fed. 571, 2 Int. Com. Rep. 351, 2 L. R. A. 289. 13 Pennsylvania R. R. v. Hughes, 191 U. S. 477, 48 L. ed. 268, 24 Sup. Ct. 132.

14 State v. Adams Express Co., 171 Ind. 138, 85 N. E. 337.

15 Morris Iron Co. v. B. & O. R. R. Co., 26 I. C. C. 240.

16 Ch. of C. of Newport News v. Southern Ry., 23 I. C. C. 345.

17 New York & N. Ry. v. New York & N. E. R. R., 50 Fed. 867, 4 Int. Com. Rep. 116.

18 Toledo, A. A. & N. M. Ry. v. Pennsylvania Co., 54 Fed. 746, 5 Int. Com. Rep. 545.

§ 885. Demand for connecting service.

A carrier cannot be compelled to receive or deliver traffic at a point where another company has made a new connection with its roads, but has not provided proper facilities.19 The provision is merely negative; it does not affect either a contract or a State statute giving another carrier the right to use tracks and terminal facilities. 20 "Terminal facilities" as used in the Act refers to facilities for interchanging traffic between connecting lines. 21 At the time of the passage of sections railroads were going so far as to refuse to accept or deliver traffic on any terms if it came by a connecting line which for some reason they desired to freeze out. This the Act was intended to correct and did correct, whether the common law would require so much or not. But the courts will not assume that the independence of railroads in making such arrangements as they pleased, short of palpable disregard of their legal duties, should be destroyed by any forced construction of the Act. 22 It should be noted, however, that a connecting carrier without discrimination may always refuse to render service unless its charges are tendered it or secured to it, although it does not generally insist upon. prepayment; 23 and, of course, it may refuse in taking over from one connection to advance the previous charges, although it does this in its dealings with other connections.24

19 Kentucky & I. B. Co. v. Louisville & N. R. R., 37 Fed. 571, 2 Int. Com. Rep. 102, 2 L. R. A. 289.

20 Iowa v. Chicago, M. & S. P. Ry., 33 Fed. 391, appeal dismissed; Chicago, B. & Q. R. R. v. Iowa, 145 U. S. 631, 36 L. ed. 857, 12 Sup. Ct. 978.

21 Chicago F. P. C. Co. v. Chicago & N. W. Ry., 8 I. C. C. Rep. 316.

22 Oregon Short Line & U. N. Ry. Co. v. Northern Pacific Ry. Co., 61 Fed. 158.

23 Little Rock & M. Ry. Co. v. St. Louis, I. M. & S. Ry. Co., 59 Fed. 400; Little Rock & M. Ry. Co. v. St. Louis S. W. Ry. Co., 63 Fed. 775, 27 U. S. App. 380, 26 L. R. A. 192, 11 C. C. A. 417, affirming 59 Fed. 400.

24 Southern Indiana Exp. Co. v. United States Exp. Co., 92 Fed. 1022, 35 C. C. A. 172; Gulf, C. & S. F. Ry. Co. v. Miami S. S. Co., 86 Fed. 407, 52 U. S. App. 732, 30 C. C. A. 142.

§ 886. Compulsory interchange of business.

In a recent terminal case 25 the Commission found that the respondent company was so far committed by its course of business to the furnishing of terminal facilities to other railways entering the city, that it should be regarded as a public terminal, open to other lines upon the same conditions. The only ground, it would seem, upon which this decision could be rested was that, as this company had taken it upon itself to furnish a terminal, its facilities were at the disposal of other carriers, otherwise the action of the Commission would have been in the face of the explicit limitation of section 3 protecting a common carrier from invasion of its own facilities by another carrier.26 It should be noted, however, that the Commission apparently felt in this case, as it has said squarely since, that the provisions of section 3 of the original Act have been made of less force by the Amendments beginning in 1906. The Commission now has power to order through routes and establish through connections from any point on any line under its jurisdiction to any point on any other trackage subject to the Act. Its doctrine now goes to the extent of holding that the public interest requires that any shipper from any one system should be able to get his goods properly transported at reasonable rates to any point on any other system. But it should be noted that even in these provisions for through service there is the limitation that the originating carrier should not in the route established be required to short haul itself.

25 St. L., S. & P. R. R. v. Peoria & P. W. Ry., 26 I. C. C. 226. Compare with these a later opinion in which it was said that a connecting carrier could not demand at a switching charge merely the utilization of the terminal trackage of a rival system. Waverly Oil Wks. v. Pa. Ry., 28 I. C C. 621. See § 176, supra.

26 Morris Iron Co. v. B. & O. R. R. Co., 26 I. C. C. 240. Carriers should establish through routes and joint rates so that there may be the freest movement of traffic without the necessity of reshipment. Enterprise Fuel Co. v. Penna. Ry., 16 I. C. C. 219.

§ 887. Through arrangements once not obligatory.

At common law one public service could not be compelled to enter into arrangements with another for continuous service as a single unit for a single rate. Through arrangements were left altogether to such private agreements as the parties should negotiate. This is well explained in the leading case of the Atchison, Topeka & Santa Fe Railroad Co. v. Denver & New Orleans Railroad 27 where the Supreme Court squarely held that a railroad might enter into through traffic agreements with one railroad, prorating its through rate, and at the same time refuse to enter into a similar agreement with another railroad traversing the same territory as the first and having the same terminus. "He puts himself in no worse position, by extending his route with the help of others, than he would occupy if the means of transportation employed were all his own. He certainly may select his own agencies and his own associates for doing his own work." 28

§ 888. Carrier might formerly select route.

It follows that, as far as legal obligation goes, the carrier itself has entire control over the situation until by legislation some commission has been given jurisdiction to take such action as may be required, and has thereupon issued orders in the exercise of the powers conferred upon it. In the case of Southern Pacific Ry. v. Interstate Commerce Commission, 29 the United States Supreme Court held legal the policies then pursued by the Pacific railroads for picking out their through connections beyond their terminals as might best suit their own interests. As the court clearly said in its decision: "The important facts that control the situation are that the carrier need not agree to carry beyond its own road, and may agree upon joint through tariff rates

27 110 U. S. 667, 28 L. ed. 291, 4 Sup. Ct. 185.

28 A carrier need not prorate with one connection upon the same terms

or not, as seems best for its

that it does with another. Samuels v. Louisville & N. Ry. Co., 31 Fed. 57. 29 200 U. S. 536, 50 L. ed. 585, 26 Sup. Ct. 330.

§ 886. Compulsory interchange of business.

In a recent terminal case 25 the Commission found that the respondent company was so far committed by its course of business to the furnishing of terminal facilities to other railways entering the city, that it should be regarded as a public terminal, open to other lines upon the same conditions. The only ground, it would seem, upon which this decision could be rested was that, as this company had taken it upon itself to furnish a terminal, its facilities were at the disposal of other carriers, otherwise the action of the Commission would have been in the face of the explicit limitation of section 3 protecting a common carrier from invasion of its own facilities by another carrier. 26 It should be noted, however, that the Commission apparently felt in this case, as it has said squarely since, that the provisions of section 3 of the original Act have been made of less force by the Amendments beginning in 1906. The Commission now has power to order through routes and establish through connections from any point on any line under its jurisdiction to any point on any other trackage subject to the Act. Its doctrine now goes. to the extent of holding that the public interest requires that any shipper from any one system should be able to get his goods properly transported at reasonable rates to any point on any other system. But it should be noted that even in these provisions for through service there is the limitation that the originating carrier should not in the route established be required to short haul itself.

25 St. L., S. & P. R. R. v. Peoria & P. W. Ry., 26 I. C. C. 226. Compare with these a later opinion in which it was said that a connecting carrier could not demand at a switching charge merely the utilization of the terminal trackage of a rival system. Waverly Oil Wks. v. Pa. Ry., 28 I. C C. 621. See § 176, supra.

26 Morris Iron Co. v. B. & O. R. R. Co., 26 I. C. C. 240. Carriers should establish through routes and joint rates so that there may be the freest movement of traffic without the necessity of reshipment. Enterprise Fuel Co. v. Penna. Ry., 16 I. C. C. 219.