tion in times of car shortage, and in the far reaching preference and discriminations set forth in the answer of the commission, which were taken as true, as the cause was submitted on bill and answer, the subject was clearly within the sweeping provision of section 3 of the act prohibiting preferences and discriminations, and the order was within the comprehensive powers conferred by the amendatory act of 1906. The divergence and even conflict in the systems of coal car distribution in times of shortage enforced by the different railroad systems illustrated by such cases as Logan Coal Co. v. Penn, R. Co., 154 Fed. 497; U. S. ex rel. Pitcairn Coal Co. v. B. & O. R. Co., 165 Fed. 113, and cases therein cited, and also Majestic Coal & Coke Co. v. Ill. Cent. R. Co., 162 Fed. 810; and divergence of the systems illustrated a complexity of the subject which required and justified the broad discretion imposed in the Interstate Commerce Commission to make the uniform rulings required to prevent preferences and discriminations in the commerce of the country.

Subsequently to this decision of the supreme court in 1910 the system of coal car distribution practiced on the Pennsylvania railroad was condemned by the commission, see 19 I. C. C. R. 356, and the commission adhering to its previous ruling that the owner of private cars was entitled to their exclusive use, and that foreign railway fuel cars assigned to a particular mine could not be delivered to another mine, again ruled that all such cars must be counted against the distributive share of the mine receiving them, and held that the defendant's rule providing that the capacity in tons of such assigned cars should be deducted from the rate capacity of the mine receiving them and that the remainder was to be regarded as the rated capacity of the mine in the distribution of all unassigned cars, was unlawful and discriminatory. The commission said that the law not only gave the shipper a right to an equal or a justly ratable use of the facilities of an interstate carrier, but the assurance that no other shipper shall fare ratably better at the hands of the carrier. The utmost obligation of the carrier under the law was to equip itself with sufficient cars to meet the requirements of a mine for actual shipment. See also 20 I. C. C. R. 52.

In these cases there was a difference of opinion, in the commission not only on the power to award damages to a complainant, see infra, § 387, but also on the method of rating lines. The

minority contended that the physical capacity of the mine was the only proper basis for car distribution, while the majority adopted the rule of considering not only physical capacity but the commercial output.

§ 252. Discrimination by carrier in its own favor.-As the carrier may not discriminate in favor of itself in violation of section 2 when it is both a carrier and a shipper, so it may not discriminate by the unjust preference in certain localities by the same means, see supra, section 2. Such a preference was involved in the matter of coal car distribution considered in the preceding section; and it was upon the ground that the supreme court would not interfere with the administrative order of the commission made for the purpose of securing equality and preventing an undue preference, that the system of car distribution sustained in that case was enforced.

In Commission v. Chesapeake & Ohio R. R. Co., supra, a contract by a carrier for the delivery of the coal belonging to the first at a fixed price was held to operate to give the purchaser an undue preference in violation of section 3, and the contract was therefore illegal and unreasonable, and its further performance was enjoined. See supra, section 2.

It was held by the supreme court in the Illinois Central Coal Car Distribution Case, supra, § 251, that a railroad company is not at fault for failure to deliver all the coal cars called for in times of shortage, if the equipment of the coal cars was reasonably adequate to meet all normal conditions, although it became insufficient at times because of extraordinary circumstances against which it was in reason impossible to pro

vide.

§ 253. Undue preference in private cars.-The subject of the use of private cars and their abuse in causing undue preference has been the subject of frequent discussion by the commission, both in its decisions and reports. The act has been amended, see section 1, supra, in accordance with the recommendations of the commission, so that the private cars by whomsoever owned, used in transportation and refrigeration, and all the facilities of transportation used in interstate commerce, are under the

control and regulation of the commission. While the owner of the private cars is thus under the control of the commission, the carrier is none the less responsible for all the necessary incidents of transportation and is bound to furnish them to all without discrimination and without undue preference.

In 9 I. C. C. Rep. 1, the commission said that the carrier could refuse to haul private cars at all, or to only haul those of a certain class and refuse to haul others of a little different or substantially different class. In this case the private car was that of a commercial salesman and was stocked with his samples of men's clothing and furnishings. The commission said that in comparison with the private car services rendered for pleasure journeys and theatrical companies, the service was so different and unusual as to justify a greater compensation, or even the refusal of the car altogether.

As to tank cars, which have been the subject of frequent discussion in the decisions of the commission, see 4 I. C. C. Rep. 131, and 3 Int. Com. Rep. 162, the commission said it was the carrier's duty to equip its road with the instrumentalities of carriage suitable to the traffic, and to furnish them alike to all, and its duty to furnish equipment could not be transferred to nor acquired by shippers. Where it accepted and used cars owned by shippers and others, in legal contemplation, it adopted them as its own for the purpose of rates and carriage. The carrier could not by any device, such as the payment of unreasonable rent, avoid the duty of equal charges for equal service. See also 1 I. C. C. Rep. 503, and 1 Int. Com. Rep. 722; 6 I. C. C. Rep. 295.

The carrier, however, has the right to fix its rates according to the cost of the service rendered, as between the transportation in tank cars and barrels. See Penn. Refining Co. v. W. N. Y. & P. R. Co., supra.

It was said also by Judge Cooley in an early case, 1 I. C. C. Rep. 503, and 1 Int. Com. Rep. 722, that it is properly the business of the carrier to supply the rolling stock for the freights it offers and purposes to carry, and that if the diversity and peculiarities of traffic are such that this is not practical, the consignors must supply it themselves, and that the carrier must not allow his own deficiencies in this particular to be the means

of competing to the disadvantage of those who make use of the traffic and the facilities it supplies, citing Railroad Co. v. Pratt, 22 Wall. 123, 22 L. Ed. 827 (1875).

This subject was discussed by the commission in the California Fruit Case, 9 I. C. C. Rep. 182, where it is said that it must be conceded that the leasing of equipment by carriers of refrigerator cars, afforded opportunities for unfair advantage, but that carriers were allowed by the law to procure equipment for business by lease as well as by purchase, and they were not prohibited from leasing from a shipper, nor are they compelled to lease from all shippers because they do from one. As to the reasonableness of charges for private cars and for refrigeration, see § 154 et seq., supra; and as to unjust discrimination upon shippers in connection therewith, see § 210, supra. See also extended discussion of the subject of private cars by the commission in its annual deport for 1904, prior, however, to the amendment of the act, placing such cars under the jurisdiction of the commission.

§ 254. Demurrage and other charges on privately owned cars. The commission has ruled upon the subject of privately owned cars, 13 I. C. C. Rep. 378, that where the cars are owned by shippers and hired by the carriers on a mileage basis, they are subject to demurrage when such cars stand upon the tracks of the carrier, either at the point of origin or at the point of destination, but are not so subject when upon either the private track of the owner of the car, or the private track of the consignee. The carrier must charge demurrage in all cases where demurrage is imposed by tariff provision upon its own equipment, except where the privately owned car is upon the privately owned siding or track and the carrier is paying or is responsible for no rental or other charge upon such car. The privately owned car, in the sense in which that expression is used, is the car owned by an individual firm or corporation for the transportation of the commodities which they produce or in which they deal.

§ 255. The commerce court on demurrage charges upon private cars. In Procter and Gamble Co. v. United States et al., the United States commerce court (July 20, 1911) affirmed the

order of the commission dismissing the complaint of the petitioner seeking to set aside the order of the commission which had refused to declare illegal exaction of demurrage charges made by a railroad company against the private cars of the company after they had been delivered to the company and were standing on its private tracks. The court said it was not necessary to decide whether the railroad could refuse or be required to haul private cars. Whatever may be its duty in that regard, such terms can be imposed as a condition of hauling them as have a reasonable relation to the service in which they are employed. The railroads were entitled to require that there should be a reasonably dependent supply and that the cars should not be withdrawn at will to serve the private purposes of the owner, but should be kept in active and steady use, and to that end that they should be on a footing in this respect with other cars. The purpose of the demurrage was to force the cars back into use, and delay was made expensive so that it might be made an object to the shipper which could not afford to disregard. The exaction of demurrage from private cars the same as others was therefore neither arbitrary nor unjust nor violative of the owner's rights.

§ 256 (192). Exclusive use of excursion or sleeping cars of one owner. The same principle applies in cases of special classes of cars, such as excursion and sleeping cars for passengers. A railroad company may acquire cars of any class, by construction, by purchase, or by contract for their use, and no one can compel a railroad company to select among these several modes or to contract with all carriers. This principle was applied by the commission in 3 I. C. C. R. 577, and 2 Int. Com. Rep. 792, in ruling that it was not unjustly preferential for a railroad company to refuse to haul the excursion cars of one car company, when it had a sufficient supply of excursion cars for its business from other company with whom it had contracted.

§ 257 (193). Leasing of cars does not carry right of exclusive use by owner.-It is the duty of a carrier to equip its road with the means of transportation, and in the absence of exceptional conditions those means must be open impartially to all shippers of like traffic.