duties were defined in the original act of 1887 when "transportation" was stated to include "all instrumentalities of shipment or carriage." The court said at page 226:

The duty which attached to "instrumentalities" of the act of 1887 attached to the things covered by its comprehensive generality-to the things declared in the amendment of 1906, that is, to "cars," "vehicles," "facilities." And this duty, under the act of 1887, we have seen, had, in the opinion of the Commission, the sanction only of the common law. Under the amendment the most that can be said is that the duty is particularized. Its sanction is not enlarged.

Applying the same reasoning to paragraphs 10 and 11 of the present act, it would seem that these new sections only "particularize." While the term car service is defined as "including special types of equipment," it seems clear that, following the thought of the court as indicated above, all this was included under the "comprehensive generality" of the act of 1887 and, of course, if the court held that under such phraseology as the act contained in 1916 there was no duty to furnish special equipment other than the common law duty, then it would seem that the duty to furnish special cars still is governed by the common law.

Nor does it seem that the authority conferred on the Commission by paragraph 21 overcomes the deficiency in this respect, in the present legislation. Under paragraph 21 the Commission receives the power, after a hearing, to authorize or require a carrier by railroad subject to the act, a party to the hearing, to provide itself with safe and adequate facilities for performing as a common carrier its car service. It seems clear that this power to require a railroad to provide itself with equipment is necessarily coupled with the duty of such railroad to furnish equipment as that duty is set out in paragraph 11. If, as has been pointed out, the duty under paragraph 11 might, following the case cited, be held to be no more comprehensive than the duty under the act of 1887 and to depend on the common law, then the authority of the Commission to require the railroads to provide themselves with equipment is likewise limited to what the carriers. under the common law could be required to furnish. In fact, paragraph 21 employs the very phrase, “performing as a common carrier" its car service.

The court, in the cited case, after holding that the amendments to the act with respect to furnishing cars had only "particularized" and had not extended the authority of the Commission and that the duty to furnish equipment was controlled by the common law, held further that the duty under the common law to furnish equipment was necessarily determined by the particular holding out to the public; and that since, in the particular case, the carrier, though publishing a tank car rate on oil, limited its common law duty to furnish equipment with which to fulfill its common carrier obligation by providing in connection with such rate that it would not undertake to furnish tank cars.

If the reasoning of the cited case is followed, it would seem that the carriers can escape any obligation to furnish certain equipment which is required if the rates applicable to a movement in such equipment are to be availed of, if in connection with such rates, they provide in their tariffs that the type of car required will not be furnished.

If all doubt is to be removed and if it is the purpose of Congress to repose in the Commission the authority to decide when carriers must in the public interest provide equipment to safely and adequately transport all freight which they hold themselves out to carry, then paragraph 11 should be amended making it the duty of every carrier by railroad subject to the act to furnish "safe and adequate car service to enable them to perform the transportation for which they publish rates, fares or charges." A carrier. could not then escape the duty to furnish special equipment necessary before a particular shipper might avail himself of the special rates applicable to a certain commodity when moving in such equipment.

This matter is much more fundamental than it may seem on its face. It is of vital interest to the independent shippers, so-called, who have not acquired or who, because of their small capital, cannot acquire special cars of their own. Before they can enjoy the rates which their larger competitors can use, they, too, must acquire sufficient capital to purchase cars of their own. There is little doubt but that this situation was intended to be reached by the amended car service sections. But it seems equally clear that the ruling of the Supreme Court in the case cited might well be held not yet to have been overcome, and that it will not be overcome until the act is amended as pointed out.

Paragraphs 15 and 16 are the emergency sections. Before the Commission can exercise any power conferred in these sections, an "emergency” must exist or a certain carrier for some reason must be unable to transport the traffic offered it. The Commission is to be the judge of whether or not an emergency does exist or of the inability of the particular carrier to transport the traffic offered it. But it would seem that any order niade under these sections must recite as a necessary premise either that an emergency does or did exist or that the particular carrier was or is unable to transport traffic offered it.

It would seem that the responsibilities of the Commission under the powers conferred by these sections to direct the operation of the railroads. of the country during a general car shortage in any section of the country or during a war or in any of the other emergencies that might arise, is complete. And from the fact that, in paragraph 17, the Commission, with specific reference to paragraphs 15 and 16, is authorized to carry these powers into excution through such agent cr agents as the Commission may designate, it would seem that this authority of the Commission during an emergency or in the event a particular carrier is unable

properly to transport freight offered it, is not a passive jurisdiction, but one that authorizes the Commission to take the initiative.

Paragraphs 18 to 22, inclusive, are new and confer on the Commission a jurisdiction not before imposed. Broadly interpreted, these sections do not permit a carrier subject to the act to make an extension of its line by construction or lease or to construct a new line without the certificate of the Commission stating that the public convenience and necessity warrant such extension, and likewise no part of the line or the operation thereof may be abandoned without such certificate.

From paragraph 20 it would seem that the Commission, in so far as carriers subject to the act are concerned, is the only authority for issuing such a certificate, although the particular construction or abandonment is situated entirely within one state.

It should be noted that there is no requirement under these sections with respect to a newly organized railroad company and such a company desiring to construct a line of railroad is not required to secure a certificate from the Commission before it can proceed with such construction. If a carrier which is already subject to the act undertook the same construction, it could not proceed without such a certificate. A question may, therefore, arise as to whether, if an old carrier desires to build a new line, it may not incorporate a new railroad company for this purpose and whether, if it does so, this new company will have to secure a certificate before it can proceed with its construction.

Paragraph 21 imposes the important jurisdiction on the Commission to require carriers to extend their lines as well as to provide themselves with safe and adequate facilities for performing as common carriers their car service. There is one limitation on this power, that is that the Commission must be satisfied that the expense of extending the line or the acquisition of equipment will not impair the ability of the particular carrier to perform its common carrier duties to the public. The duty to provide themselves with "safe and adequate facilities for performing as a common carrier its car service as that term is used in this act," in reality, it would seem, adds nothing to the effectiveness of the duty of the carriers in paragraph 11 to furnish safe and adequate equipment. The same deficiency exists in the phrasing of this provision as was pointed out in connection with paragraph 11. Under the case there cited, the common carrier duty may be limited by publishing a notation in the tariffs that special cars will not be furnished, though special rates for a movement in such special equipment are published. If the common carrier duty can legally be so limited, then the obligation to do that thing as a common carrier only exists where a particular carrier has failed to limit, by its tariffs, its ordinary common carrier duty to furnish equipment to transport the freight which it holds itself out to carry when it publishes rates applicable thereto.

Here, too, there should be an amendment, it would seem, specifying that the Commission should have the power to require a carrier to provide itself with safe and adequate car service for performing the transportation for which it publishes rates, fares or charges. Then it would be certain that, regardless of any notation to the contrary, when a carrier published a rate applicable for the transportation of freight in a special sort of equipment, the carriers could be required to provide themselves by lease or purchase with that sort of car in adequate numbers. Until the act is so amended, however, it would seem that this obligation may be escaped by the publication of such a notation in the tariffs, as was done by the Pennsylvania Railroad in the case cited.

Paragraphs 23 and 24 carry forward into the new act similar provisions in section 1 of the old act.

It might be noted in concluding the review of section 1, that the Commission, in publishing the amended act, has taken out two provisions which formerly appeared as a part of section 1 and transposed them to a position under the heading of "Miscellaneous Acts and Additional Provisions," appearing at page 79 of its publication dated April 1, 1920, page 148 of the Appendix hereto. These provisions are the ones excepting Porto Rico. from the application of the valuation and safety appliance acts, and concerning the free transportation of the trustees, officers and agents of the Cincinnati Southern Railway.

SECTION 2

See Appendix, Page 87, for text of both
the former and present Acts.

Section 2 was amended by the transportation act, to prohibit unjust discrimination in the transmission of intelligence. This section as it appeared in the old act seemed to apply only to the transportation of passengers or property.

SECTION 3

See Appendix, Page 87, for text of both
the former and present Acts.

Section 3 has been changed in certain important particulars. The section is now composed of four numbered paragrahs. Paragraph 1 of the new act carries forward verbatim the first paragraph of the old act.

Paragraph 2 is new. It provides that after July 1, 1920, no carrier by railroad may deliver or relinquish possession at destination of any freight transported by it until all tariff rates and charges have been paid, except under such rules and regulations as the Commission may from time to time. prescribe to assure prompt payment of all such charges and to prevent unjust discrimination. This provision will bring about a marked departure

from past practices and, unless the Commission intervenes and prescribes regulations to cover the matter, may result in great inconvenience in the handling of freight usually delivered on industry tracks.

Under this provision the carrier cannot make delivery until all tariff charges are paid. Just how the carriers can or will change their operating practices with respect to carload freight for industry delivery is a question. It may be that the carriers will have to hold such cars in their break-up yards until the industry can be notified and it, in turn, can send a messenger down to the freight office to pay the charges. Such a practice might further congest the freight terminals-a problem that is becoming more and more aggravated as the volume of the country's traffic increases from year to year.

From the shipper's point of view the uniform payment of charges before delivery seems objectionable, because no opportunity is afforded for checking the freight bills. On the other hand, the carriers complain that under past practices large sums of money in the aggregate have been owed them under the credit system, and that the delay in receiving payment for the transportation performed has become a burden.

Under the common law the carrier has a lien on the goods transported to cover the payment of the transportation charges, but this lien is lost. when the goods are delivered without the payment of the charges. Where settlements are made monthly, it seems that it is not so much the losses due to bad accounts that concern the carriers as the cost of money to run on while the sum due and outstanding is held by the shippers.

Under the present legislation the matter is placed entirely within the discretion of the Commission. If the Commission does not act before July 1, 1920, then no carrier may deliver any freight until charges are paid. The Commission could harmonize the two positions and perhaps will, by providing regulations under which certain limited credit can be extended under such rules that no shipper will be discriminated against. This provision was designed, no doubt, to protect certain shippers from undue prejudice that might arise where to one shipper is extended credit while to another it is not, and to this end the whole matter was specifically made subject to such rules as the Commision should prescribe and was not intended, it would seem, to become a burden in any way on the commerce of the country.

Paragraph 3 carries forward into the new act a similar provision in the old act. There is a change in language which makes the provision of the new act applicable only to carriers engaged in transportation of passengers and property, whereas the provisions of the old act applied to all common carriers subject to the act which under the terms of the old act included pipe lines, telephone and telegraph companies, express and sleeping car companies, as well as railroads. This change was appropriate,