Cases of alleged discrimination in relative rates between competing cities have been investigated in different sections of the country. As in the case of alleged unreasonable rates, the conclusions of the commission are not adjudications, and as the commission observed in the case of the Boston differential, they do not preclude the commission itself from reinvestigation. A rate, which is relatively reasonable at one time, may become through changed conditions relatively unreasonable.

§ 244. Preference in demurrage charges.-Undue preference between competing cities, or between competitors in business, may be shown in the allowance of demurrage; that is, in allowing time unreasonably small in one place and unreasonably long in another, 8 I. C. C. Rep. 351. See also 7 I. C. C. Rep. 591. The commission may afford relief from the imposition of demurrage charges upon a showing that the complainant is so subject, either to unjust discrimination or to the payment of unreasonable charges, 13 I. C. C. Rep. 571. After allowing a reasonable time for unloading cars, the carrier may impose such charges for further detention as will afford a speedy relief to its equipment, 16 I. C. C. Rep. 116. Where a railroad extends the time of free delivery at one place, they must treat alike all points similarly situated, see 16 I. C. C. Rep. 497. The commission, however, has no jurisdiction over the question of whether the demurrage charges exacted by the carrier constitute a lawful lien upon the property, 13 I. C. C. Rep. 571. The right of a railroad to exact demurrage charges while the cars are standing on a siding owned and operated by the railroad, which was constructed for the use of complainant, is not affected by the fact that the cars are owned by the complainant.

§ 245. Uniform demurrage rules recommended.-The commission in its 23rd annual report (1909) calls attention, p. 13, to the adoption of a uniform code of car demurrage rules by the National Association of Railway Commissions, an association comprising the membership of all the state railroad commissions of the United States. A report was made to this association showing that the transportation system of the country was very much embarrassed by the undue holding of cars by shippers and receivers of freight. A code of rules was prepared by this asso

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ciation, the most characteristic features of which are the tendency of limiting "free-time" to the actual requirements of the consignor and consignee and the refusal of recognition to rules. which are employed as instruments of discrimination. The code thus adopted by the National Association has been endorsed by the Interstate Commerce Commission. The commission says in this report that it has been estimated by competent authority that the general adoption and enforcement of demurrage rules allowing the smallest measure of free time consistent with the needs of the public is equivalent to the addition of 100,000 cars for the country's available car supply. The commission says also "Co-operation between the federal and state railroad commissioners with a view to securing the maximum of transportation efficiency and at the same time assuring equal services to shippers and receivers in all parts of the county, so far as they may be possible, augurs well for the future government regulation."'

§ 246. Different forms of undue preference.-It may be stated generally that any form of discrimination between persons or localities in the performance of any of the duties of a carrier, whether such duties are imposed by the common law, or by statute, or by contract, would be violative of this section. Thus the failure to publish through rates to a particular town, while such through rates are established and published to other points on the road, operates as an unlawful discrimination against that town. 9 I. C. C. R. 221.

In any of the so called "accessorial services" which may be rendered by the carrier, there must be no unjust preference of localities or individuals in providing such services. Any injustice resulting from the allowance and non-allowance by the carriers of such privileges and facilities is violative of section 3, as well as of section 2. See 7 I. C. C. R. 556.

The differential between carload and less than carload rates may be unjustly prejudicial to localities, as well as unjustly discriminative as between individuals. See 9 I. C. C. R. 318, and section 2, supra.

Where the circumstances and conditions of the localities are dissimilar, there can be no unjust preference under section 3, as there can be unjust discrimination under section 2. See

Grand Haven Cartage Case, supra. Thus it is not an unjust discrimination against a town situated on a branch line to charge it a higher rate than an intermediate point on the through line, even though such intermediate point enjoys the same rate as the terminal point. 5 I. C. C. R. 44 and 3 Int. Com. Rep. 706.

In 4 I. C. C. R. 131 and 3 Int. Com. Rep. 162, the commission ruled that the acquisition and consolidation by a carrier under one system or arrangement of different competing lines of road serving the same territory in the carriage of competitive traffic to the same markets did not allow it to take advantage of the privilege to deprive the public of the benefits of fair competition, nor afford warrant for oppressive discrimination for its own interests, such as equalizing profits of the several divisions; but that its duty to the public required that its service must be alike to all who were situated alike.

A carrier in order to build up and foster industries on its line cannot lawfully refuse to carry the products of like industries located on connecting lines. 15 I. C. C. R. 620; 12 I. C. C. R. 183; 13 I. C. C. R. 460.

It was held in Foster v. C., C., C. & St. L. R. Co., 56 Fed. 434, that the action of a railroad passenger agent guaranteeing that a theatrical troupe to whom he sold a party rate ticket should arrive at its destination in a given time, was not a giving of an undue or unreasonable preference, and the guarantee was held valid and enforcible.

§ 247. Undue preference in allowance for grain elevator service. The commission in several cases had considered the matter of allowance by the railroads to the owners and operators of elevators. Thus, it ruled, 12 I. C. C. R. 112, that it was an unlawful preference to furnish at certain cities on its line elevator allowance or other free services in connection with the elevation, transfer, mixing, cleaning, clipping, drying, weighing, storage, loading out or shipment of grain which were not at the same time granted or furnished in like or equivalent service or allowance to the same degree of extent at another city on the line.

It was also ruled, 12 I. C. C. R. 85, that a carrier could construct and operate an elevator itself or furnish elevation by arrangement with the owner of an elevator; and the amount of

compensation paid by the varrier, owner, or an elevator rendering this service, was of no concern to shippers or other carriers unless it operated to affect the rates charged by the carrier of the grain traffic or by some device a portion of the allowance is returned by the shipper and thus becomes a rebate; but it was not a rebate when the allowance did not exceed the actual cost.

In the matter of the allowance by the Union Pacific Ry. Co. to Peavey & Co., 14 I. C. C. R. 315, 317, 510, it was ruled that the allowance made to the company for the cost of clearing the commercial benefits growing out of the mixing, treating, storing. weighing, or specting of the grain, was an undue preference and unlawfu. This latter order was taken into court; and in Peavey & Cr. v. Union Pacific R. Co., et al., 176 Fed. 409 (1910), it was held by the judges of the 8th circuit that this order was beyond the power of the commission and was therefore enjoined, as in effect it prohibited all compensation to the owner or operator of the elevator for elevation and transfer in transit. In this opinion the court said that the amendment of 1906 had continued the non-regulation and practice of allowing reasonable compensation for elevation and transfer in transit to shippers who are also owners of elevators; and the clear limitation in that amendment of the power of the commission to the determination of the reasonableness of allowances then made was an implied and effective prohibition of the commission forbidding the allowance to the shippers or owners of reasonable compensation for elevation and transfer in transit of grain through their elevators. The court said further the allowance was not a rebate because it was not a concession from the public schedules, but an allowance in accordance with them.

The payment of elevator charges was involved in a later case in the circuit court of appeals, 8th circuit, in Union Pacific R. Co. v. Updyke Grain Co., 178 Fed. 223 (April, 1910). The tariffs of the railroad offered compensation for elevation of grain in transit on condition that cars delivered by it loaded to elevators or connecting lines should be returned to it empty within forty-eight hours after their delivery. The rules which governed the switching and disposition of cars provided that foreign cars and cars belonging to the companies, which had a direct connection with the switching territory, should be delivered or sent to their owners, so that the complainants, who were the owners of

Aff'd (modified), by sup. ct. (Nov. 1911), 32 S. Ct. 22. Supra, § 151.

elevators upon railroad tracks other than those of the Union Pacific Company, could not possibly return such cars of that company after they were unloaded, while Peavey & Co., which had an elevator on the tracks of the Union Pacific Company, could deliver such cars back to such company immediately after they were unloaded; and the Union Pacific Company paid it compensation for elevating the grain unloaded from these cars where it refused to pay the complainants any compensation for unloading cars of like character. The court held that this course of proceeding approached an undue prejudice of omplainants, who were awarded damages in reparation; but where the delay in the return of the cars was not due to the Union Pacific Company but to the companies having connecting lines, it was held that the complainants were not entitled to any damages. In this case the court said elevation of this nature is a part of transportation which railroad companies are required to furnish on request. They have the legal right either to funish it themselves or to hire others to provide it. Since they have the right to employ others to provide elevation, they also have the indispensable right to prescribe the terms upon which they will make this employment, provided always those terms are neither unjust nor discriminatory.

In 12 I. C. C. Rep. 85, the commission defined elevation as unloading grain from cars or grain carrying vessels into a grain elevator and unloading it out again after a period not to exceed ten days; that the term as used in the statute, did not include treatment, grading, or cleaning of the grain, and that retention beyond ten days became storage. For discussion of subject of elevation, see 15 I. C. C. R. 90; 15 I. C. C. R. 341; 16 I. C. C. R. 337.

§ 248. Undue preference in wharfage rights.-The jurisdiction of the commission extends to the case of a corporation created to carry on, comformably to a municipal ordinance and confirmatory statute intended to secure public shipping facilities, a wharfage business at a seaport, and to furnish terminal facilities for a railroad and steamship system of which it forms a part, and by which it is controlled through a holding company; and a lease to a shipper of one of the piers and improvements thereon belonging to a terminal company, which relieves him from payment of all wharfage and storage charges other