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§ 941. Where no preference justifiable.

942. Basis of prorating cars.

943. Respective requirements compared.

944. Cars needed by railroads.

945. Private facilities considered in the apportionment.

$ 910. Provisions of the Act.

No provisions giving the Commission jurisdiction to order the rendering of service as such were in the original Act; the beginning of these powers was in the 1906 amendments. According to a fundamental clause now inserted in section 1 it is provided that the jurisdiction of the Commission over railroads shall include all bridges and ferries, and shall also include switches and spurs, tracks and terminal facilities and freight depots, and train yards and station grounds and railway trackage, whether owned outright or operated under agreement. The Act defines transportation as including cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported. By express provision of the Act as amended it is made the duty of every carrier subject to the jurisdiction of the Commission to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto; and to provide reasonable facilities for operating such through routes and to make reasonable rules and regulations with respect to the exchange, interchange, and return of cars used therein, and for the operation of such through routes, and providing for reasonable compensation to those entitled thereto. Furthermore, by section 15, as has been said, the Commission has full power over the provision of such facilities and the charges for such services by the carrier and over the scheduling thereof and allowances therefor when not performed by the carrier itself; and in the case of

through service the determining of the route which shall be offered, and the divisions between the carriers of the joint rate.

§ 911. Extension of service facilities.

Later in section 1 it is provided that the Commission shall have jurisdiction to compel any common carrier subject to the provisions of the Act, upon application of any lateral, branch line of railroad, or of any shipper tendering interstate traffic for transportation, to construct, maintain, and operate upon reasonable terms a switch connection with any such lateral, branch line of railroad, or private side track which may be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish sufficient business to justify the construction and maintenance of the same; and shall furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper, provided that this shall not apply to passenger railways not committed to carrying freight. It should be added that by section 8 as recently amended by the Panama Act the Commission has special powers to compel the construction and maintenance of physical connections between rail lines and steamship docks on substantially the same terms as to practicability of construction and probability of profit, the Commission having power to order the extension of railroad trackage to serve water terminals, or to order the connection of railway trackage of water terminals with the railroad systems serving the port, on such terms as to respective payments by the parties involved in the connecting service as to it may seem proper.

Topic A. Duty to Render Service

§ 912. General obligation to serve all.

One who is engaged in public calling must by virtue of his public duty serve many whom he is very unwilling to

serve, for one reason or another. A company cannot capriciously discriminate between passengers on account of their nativity, color, race, social position, or their political or religious beliefs. Whatever discriminations are made must be on some principle, or for some reason, that the law recognizes as just and equitable, and founded in good public policy. What are reasonable rules is a question of law, and is for the court to determine, under all the circumstances in each particular case. It is fundamental with the Commission that every carrier owes a duty to the entire public, and each owes a particular duty to persons and communities which it directly serves and which are dependent upon it.21 As the Commission has said comprehensively, equality between great and small is one of the underlying principles of the Act.22

§ 913. Extent of federal supervision.

A common carrier in interstate commerce is free to exercise all its rights under the common law to the full extent, unless such exercise has been made unlawful by the Act.23 Many of the older court decisions, it should be noted, were rendered prior to the amendments to the Act, making it the duty of the carrier to provide transportation and to furnish facilities therefor under the supervision and direction of the Commission. Any regulation or practice that withdraws from a shipper the equal opportunity of taking advantage of the rates offered by a carrier, is held to be a regulation or practice, "affecting rates," within the meaning of that phrase as used in section 15.24 But it is well settled that carriers have the right to transport certain commodities under reasonable rules and regulations respecting their receipt, carriage and delivery.25 And in general it

21 See Advance in Rates Cases of 1910, 20 I. C. C. 243.

22 Harbor City Wholesale Co. of San Pedro v. S. P. Co., 19 I. C. C. 323.

23 McElvain v. Railroad, 151 Mo. App. 126, 151, 131 S. W. 736.

24 St. L., S. & P. R. R. v. P. & P. U. Ry., 26 I. C. C. 226.

25 Rail & River Coal Co. v. B. & O. R. R., 14 I. C. C. 86.

may be said that the control of service is by degrees coming under the jurisdiction of the Commission by a course of extension by amendments to the Act quite parallel to the history of the development of the powers of the Commission over rates.26

§ 914. Rulings of the Commission.

It is the right of a carrier to decline to receive for transportation any merchandise not plainly marked.27 Inferior, insecure tags may be prohibited; but no justification was found for a rule which required metal eyelets at an additional expense of 15 cents per 100. That certain perishable freight should at times be refused for sufficient reason-as because of risk-has seemed reasonable; but the Commission is not convinced of the reasonableness of refusing to receive green hides when carriers have the right, under tariff provisions, to delay shipment for suitable equipment. 28 Packages containing fragile articles consisting wholly or in part of, or contained in glass, must be plainly marked to indicate contents. And in the revision of the practices of the express companies, it was recognized that the rules might be positive on the requirement of safe packing.29 But a rule has been condemned which provided for higher rate on packages not properly marked. 30 The law requires carriers to observe and enforce reasonable regulations and practices affecting the receipt, handling, transporting, and delivery of property.

§ 915. Different treatment constitutes discrimination.

It is apparently established beyond question as to common carriers that as no one has a right to have service without prepayment there could be no complaint made if some are given service without requiring prepayment of

26 National

Petroleum Ass'n V.

L. & N. R. R., 15 I. C. C. 473.

27 Ellsworth Produce Co. v. U.

P. R. R., 17 I. C. C. 182.

28 Western Classification Case, 25 I. C. C. 442.

29 In re Express Rates, 24 I. C.C.380. 30 C. H. Algert Co. v. D. & R., 18 I. C. C. 21.

them, while others are obliged to pay in advance.31 The cases go far in holding a carrier not liable for demanding prepayment of freight for goods addressed to certain consignees while accepting goods addressed to other consignees without prepayment.32 It is a carrier's right to demand prepayment on all shipments; but it may not distinguish in the rates charged between persons who pay in advance and those who do not.33 It may be provided by a rule that a shipper who refuses to furnish a return address should be required to prepay express charges. 34 And a rule of the carrier that no cars would be received from connecting lines for switching unless all freight charges were prepaid was not condemned.35 While carriers may provide by definite tariff provisions free from undue discrimination, for the advancement of storage or transfer charge, the Commission is without authority to compel them to do so.36

§ 916. Scope of present jurisdiction.

The power over service is often of even greater importance than the rate itself. But the Commission has said very recently that, generally speaking, it has no power whatever to order a railroad to operate its trains in ways

31 Randall v. Railroad, 108 N. C. 612, 13 S. E. 137; Brown & B. Coal Co. v. Grand Trunk Ry. Co., 159 Mich. 565, 124 N. W. 528.

Consequently a carrier may take goods from one connecting carrier with which it is closely allied, not only not demanding its charges in advance, but also advancing to the preceding carrier the accrued charges while refusing both favors to a rival connection. Southern Indiana Exp. Co. v. United States Exp. Co., 92 Fed. 1022, 35 C. C. A. 172.

32 Gamble-Robinson

Commission

Co. v. Chicago & N. W. Ry., 168
Fed. 161, 94 C. C. A. 217.

There may be prepay stations at

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