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way, and for that reason was found in 10 I. C. C. R. 226, not to be justified by a difference in the cost to the carrier, and that the higher rate was discriminatory against the small shippers.

§ 210 (159). Different forms of discrimination.-Any special rate, rebate, drawback or other device whereby discrimination is effected, is prohibited. Thus there may be discrimination in any accessory service charge, as in demurrage, see Michie v. R. R. Co., supra, where charge of discrimination was not sustained in the service of cars, 9 I. C. C. R. 207; in the manufacturer's rate on coal, 5 I. C. C. R. 466, 4 Int. Com. Rep. 157; in rebates for the use of live stock or private cars, 4 I. C. C. R. 630, 3 Int. Com. Rep. 502; or in the exaction of unreasonable rent for private cars, 4 I. C. C. R. 131, 3 Int. Com. Rep. 162. All forms of secret rates and drawbacks are prohibited, 1 I. C. C. R. 480, 1 Int. Com. Rep. 764. Discrimination may be effected by unjust classification, 4 I. C. C. R. 535, 3 Int. Com. Rep. 460; or by commissions paid to soliciting agents, 2 I. C. C. R. 513, 2 Int. Com. Rep. 340; also combination rates less than tariff rates are illegal, 2 I. C. C. R. 1, 2 Int. Com. Rep. 1. Any form of discriminating preference is in violation of the statute, 2 I. C. C. R. 90, 2 Int. Com. Rep. 67.

Discrimination violative of this section may be effected through underbilling the weight of freight, or giving it a false classification, whereby less compensation is paid by one person than by another for a like and contemporaneous service. In the report of the commission upon this subject, supra, in 1888, it was said that this method of discrimination had been extensively employed, and it reviews the evidence taken by the commission in their investigation. Under the recommendation of the commission, section 10 of the act was amended, imposing penalties upon the shipper who by false classification, false weighing, or false report of weight, or by other devices, knowingly or wilfully obtain transportation of their property at less than the regular rate. See infra, section 10. As to discrimination in billing at net weight, see 4 I. C. C. R. 87, 3 Int. Com. Rep. 131; 9 I. C. C. R. 440.

Another form of discrimination is in the use of private cars, as where freight cars are either owned by the shipper or a private car line. See supra, § 155. The commission says in

its annual report for 1904 that the private car may be of advantage to the carrier by enabling it to provide equipment for special service during limited periods, and the equipment is likely to be more adequate for the public, than for the carrier to undertake to own the cars itself or to secure them from its own connections. Concessions however were made in the use of such charges to particular shippers, which amounted to the payment of a rebate, and when the owner of the car became a dealer in the commodity transported, the fact of ownership gave him an important advantage over his competitor.

A contract of a lumber company with a railroad by which it agreed to build a tie hoist for loading ties on the railroad company cars, and to haul the ties to a certain point for eight dollars and a half a car and return ten per cent.-when the freight was received to apply on the cost of the hoist, the rate given being materially less than the published rate, this was held by the court of appeals of the fourth circuit to be an illegal discrimination and unenforcible. See C. & O. R. R. v. Standard Lumber Co., 174 Fed. 107, 1909. Though the refusal of an interstate carrier to furnish cars for the shipment of cross ties, while furnishing them to others for interstate shipments to save freight, constituted a discrimination, and that as cross ties were included in the term "lumber," it would constitute a discrimination for the railroad to place them in another classification, see American T. T. Co. v. Kansas City Southern, 175 Fed. 28, in the circuit court of the fifth circuit, 1909.

§ 211. Discrimination in restricted rates.-In 20 I. C. R. R. p. 426, the commission reaffirmed its conference rulings (see rules 34 and 225, conference rulings bulletin No. 4) that railroad tariffs which named rates for the transportation of coal for railroad use more than the rates applicable to the transportation for commercial coal between the same points, was an unjust discrimination and unlawful. It ruled that a tariff providing for reduced rates on coal used for steam purposes, or that the carrier would refund part of the regular carrier charge on the presentation of evidence that the coal was so used, was improper and unlawful, that is to say, that the carrier had no right to attempt to dictate the uses to which commodities transported by it shall be put in order to enjoy a transportation rate. The carriers were, therefore, ordered to desist from maintaining tariffs which

contained rates applicable wholly upon shipments for a particular consignee, or when the commodity transported is for the particular use or rates that are restricted to the use of certain shippers and not open to all shippers alike.

It was also ruled that a carrier may not, as shipper over the lines of another carrier, be given any preference in the application of tariff rates on interstate shipments; but it may lawfully and properly take advantage of legal tariff joint rates applying to a convenient junction or other points in its own line, provided such shipments are consigned through to such points from point of origin and are in good faith sent to such billed destination. In this construction of section 2 the commission cited the Wight case, supra, and also the case of Pa. R. R. Co. v. International Coal Mining Company, 173 Fed. 1, where the courts condemned the charging of a higher rate on so-called free coal than on contract coal. See also Mitchell Coal & Coke Co. v. P. R. R. Co., 81 Fed. 403. On this subject see also 11 I. C. C. R. 104; 16 I. C. C. R. 246, 512.

The Commissioner Prouty dissented, agreeing that the rate could not be varied according to the use to which the article is put, but he thought the movement of coal for railroad fuel supply so different from the movement of coal for private use that a different system of rate making could properly be applied to its transportation.

§ 212. Discrimination through industrial tap lines and plant facilities. The discrimination effected through allowances made by regular carriers to so-called tap lines and plat facilities, whether formally organized as railway corporations or not, has been extensively considered by the commission. Thus in 17 I. C. C. R. 338, the Star Grain & Lumber Co. case, it was ruled that the commission could not recognize as common carriers under the act any of the lines, that did not publish tariffs in ample form, or concur properly in the lawful carriage of other lines, or did not file annual reports and keep their accounts in accordance with the form prescribed by the commission, or that did not in all respects comply with the law. That even if the tap line or industrial line was duly incorporated and complied with the act in these respects, the commission would look to the substance and not to form, in cases where the line was only a facility of a mill or its proprietors. Any allowances or division made to

or with the tap line that was owned or controlled directly or indirectly by the lumber mill, or its officers or proprietors, and beyond the logs that it hauled to the mill had no traffic except such as it might pick up as a mere incident to serve the mill as a plant facility, would be discrimination or a preference and an unlawful departure from published rates. In this case Commissioner Prouty filed a separate opinion, stating that he did not concur in the belief that none of the tap lines were bona fide common carriers, and that many of the tap lines had developed into real common carriers. See also 19 I. C. C. R. 50, and 18 I. C. C. R. 517, where the tap line was constructed and used exclusively for the company owning the timber. The allowances therefore to the company were clearly unlawful.

The principle announced in these cases of so-called tap lines in the lumber districts was applicable to any industrial or plant facility. Thus in 14 I. C. C. R. 237, the commission ruled that a manufacturing plant of the General Electric Company of Schenectady, which enclosed twelve miles of broad guage switching track and seven miles of narrow guage electric switching track, with its own motors and engines, and a force of men, particularly the internal switching, which would be seriously interfered with by the switching of the railroad if permitted access to the plant, was not entitled to compel the railroad to extend its transportation obligations and to accept and deliver cars within the enclosure to meet the requirements of the industry.

The case of the Crane Iron Works at Catasaqua was considered in 15 I. C. C. R. 248 and 17 I. C. C. R. 514, where the company prayed for an allowance of two dollars per car as its share of a through rate on the Philadelphia & Reading Railroad. But the commission ruled that whether the Crane Company was a common carrier or not, the service performed by the railroad was a plant facility and the expenses should be borne entirely by the complainant.

As to what constitutes a common carrier under the act, see supra, § 137. A common carrier may be sometimes a plant facility. That is, it may be properly organized and may do business as a common carrier, and yet be in effect a plant facility of its owner. In such case the allowance of any sum in excess of a fair proportion of a through rate would be a discrimination violative of the section.

§ 213 (160). Discrimination through interest in connecting company.-Another device for effecting discrimination is through the making of a joint rate with a connecting railroad controlled by the shipper out of proportion to the value of the service and constituting in effect a rebate to the shipper. This was illustrated in the Hutchinson Salt case, 10 I. C. C. R. 1, where the commission found that the connecting railroad did not own any equipment or rolling stock and was not in any way engaged as a common carrier, and that the granting of the division of the through rate to this connecting company was a mere subterfuge to give a concession in the rate and was an unlawful discrimination. In another salt case involving the transportation of salt westward from points in Michigan, where a similar charge was made as to the alleged interest of the salt producer in a boat line on Lake Michigan, 10 I. C. C. R. 148, the commission found on investigation of the facts that the share of the through rate allowed to the boat line was not so disproportionate as to amount to a rebate, and therefore that the discrimination was not established. Discrimination through the devices of a connecting railroad in the division of joint rates was further discussed by the commission in 10 I. C. C. R. 385, in an opinion filed Nov. 3, 1904, wherein the commission reported the results of investigation of the divisions allowed the terminal lines in and about the city of Chicago. It was found that certain connecting railroads were practically controlled by certain large shippers, and that the amourts allowed as divisions of the through rates were so excessive as to constitute in effect rebates to such shippers, but as no specific charge had been formulated, and the investigation was a general one, no order was made. The commission ruled that to the extent that these divisions exceeded the reasonable charge for the performance of the service, they were an unlawful preference and discrimination in favor of the shipper owning the railroad. On this subject see also the report of the commission for 1904, pages 19 to 23.

§ 214 (161). Discrimination by carrier in favor of itself as a shipper. A carrier can no more discriminate in favor of itself as producer and shipper than in favor of any other shipper, said Judge Cooley in 4 I. C. C. R. 296, and 3 Int. Com. Rep. 302.

There is a difficulty in determining the fact of discrimination

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