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that the lesser rate charged for the longer haul is not wholly unremunerative and has been forced upon the carriers by competition at the longer distance point, it must result that a discrimination springing alone from a disparity in rates cannot be held, in legal effect, to be the voluntary act of the defendant carriers, and as a consequence the provisions of the third section of the Act forbidding the making or giving of an undue or unreasonable preference or advantage will not apply.” East Tennessee, etc., R. Co. v. Interstate Commerce Commission, (1901) 181 I'. S. 1.

Switching facilities and service. — A common carrier subject to the Act is guilty of giving an unlawful preference or advantage where it denies switch connections and service to one person, place, locality, or kind of traffic, and affords such facilities and services to others similarly situated. Interstate Stock-Yards Co. 1. Indianapolis Union R. Co., (1900) 99 Fed. Rep. 473.

Pro rata allotment of cars. - It is the duty of a railroad company, when its supply of coal ears is short, to prorate the supply on hand, without unjust discrimination, among all the shippers of coal. U. S. v. Norfolk, etc., R. Co., (1901) 109 Fed. Rep. 831.

Discrimination in favor of car company. It is not unlawful for a carrier to transport stock in cars of a particular car company at a less rate than is charged for stock shipped in the cars of another company, where the cars of the former company are adapted for use both as stock cars and as coal cars while the cars of the latter company are not so adapted, as in such case the circumstances

and conditions are not substantially similar. C. S. 1'. Delaware, etc., R. Co., (1889) 40 Fed. Rep. 101.

Permitting shipper to use his own cars may amount to an unlawful preference or advantage. V. S. 1. Delaware, etc., R. Co., (1889) 40 Fed. Rep. 101. See also U. S. 1'. Norfolk, etc., R. ('o., (1901) 109 Fed. Rep. 831.

Requiring prepayment of charges from some persons and not from others does not amount to giving an unjust or unreasonable preference or advantage. Little Rock, etc., R. Co. 1. St. Louis Southwestern R. Co., (C. C. A. 1894) 63 Fed. Rep. 775, affirming 59 Fed. Rep. 400.

Compressing cotton in transit. - Where a carrier gives through rate on cotton it is not a violation of sections 2 and 3 to give the same through rate with the privilege of having the cotton stopped at an intermediate point where it is compressed at the expense of the carrier, where the rate is open to all alike. Cowan v. Bond, (1889) 39 Fed. Rep. 54.

Discrimination in delivery at stock yards. - It is the duty of a carrier of live stock to provide reasonable facilities for the unloading and care of such stock; and where it has done so, either by building stock yards of its own or by contract with a stock-yards company, its refusal to deliver stock to other stock yards in the same city is not an unlawful discrimination. Central Stock-Yards Co. 1. Louisville, etc., R. Co., (C. C. A. 1902) 118 Fed. Rep. 113, citing Covington Stock Yards Co. v. Keith, (1891) 139 U. S. 128; Butchers', etc., Stock-Yards Co. 15. Louisville, etc., R. Co., (1895) 67 Fed. Rep. 41, 31 U. S. App. 252.

FACILITIES FOR INTERCHANGE OF TRAFFIC. Construction and operation of clause. — In Discrimination under first paragraph. the construction of the clause requiring The first paragraph of the above third seccarriers to afford equal and reasonable facili tion prohibiting unjust preference or advan. ties for the interchange of traffic between tages applies to connecting carriers as well as connecting lines, English authorities carry to other persons and localities, Oregon little weight, as the provisions of the English Short-Line, etc., R. Co. v. Northern Pac. R. statute are not similar. Oregon Short-Line, Co., (1892) 51 Fed. Rep. 465. etc., R. Co. v. Northern Pac. R. Co., (C. C. But an unjust preference or advantage in A. 1894) 61 Fed. Rep. 158, citing Little Rock, respect to localities does not constitute an etc., R. Co., v. St. Louis, etc., R. Co., (1890) unlawful discrimination against a connect41 Fed. Rep. 559, and Kentucky, etc., Bridge ing carrier serving such localities. Oregon Co. v. Louisville, etc., R. Co., (1889) 37 Fed. Short Line, etc., R. Co. v. Northern Pac. R. Rep. 567.

Co.. (C. C. A. 1894) 61 Fed. Rep. 158. Three carriers involved. - The discrimina Reasonable and proper facilities. Only tion prohibited must be between two or more reasonable and proper facilities need be carriers other than the offending carrier, as furnished. Oregon Short-Line, etc., R. Co. it is not unlawful for a carrier to prefer 1. Northern Pac. R. Co., (C. C. A. 1894) 61 itself as against any connecting line. Tironn Fed. Rep. 158. R., etc., Co. 1. Oregon Short Line, etc.. R. In determining what are reasonable and Co., (C. C. A. 1893) 57 Fed. Ren. 673; Little proper facilities, the interests of the road Rock, etc., R. Co. 1. East Tennessee, etc., required to furnish them must be considered. R. Co., (1891) 47 Fed. Rep. 771, 49 Am. & Oregon Short-Line, etc., R. Co. v. Northern Eng. R. Cas. 23.

Pac. R. Co., (C. C. A. 1894) 61 Fed. Rep. The fact that one company owns an interest

158. in the stock of another is no excuse for dis An interstate carrier is not required to criminating in favor of such road as against treat all its connecting carriers in precisely other roads. New York, etc., R. Co. v. New the same manner without reference to its York, etc., R. Co., (1891) 3 Int. Com. Rep. own interests. Little Rock, etc., R. Co. r. 542, 4 Int. Com. C. Rep. 702. Distinguished St. Louis Southwestern R. Co., (C. C. A. in Little Rock, etc., R. Co. v. East Tennessee, 1894) 63 Fed. Rep. 775. etc., R. Co., (1891) 47 Fed. Rep. 771.

The term “facilities" does not include car

are

re

equipment for the transportation of traffic Line, etc., R. Co. 1'. Northern Pac. R. Co., over the carrier's own road. U. S. v. Dela (C. C. A. 1894) 61 Fed. Rep. 158. ware, etc., R. Co., (1889) 40 Fed. Rep. 101. “ The meaning of this clause is clear. It

Similar and dissimilar circumstances and simply declares that the preceding provision conditions. - Equal facilities

not of the section shall not be deemed to give the quired where the circumstances are dissimilar. right to one carrier to use the tracks or terLittle Rock, etc., R. Co. v. St. Louis South minal facilities of another carrier in the like western R. Co., (C. C. A. 1894) 63 Fed. Rep. business. It has reference to the effect of 775; Oregon Short-Line, etc., R. Co. v. North the Act of Congress, and nothing else. If the ern Pac. R. Co., (1892) 51 Fed. Rep. 465, defendant company, by a contract with the citing Kentucky, etc., Bridge Co. 1. Louis city of Dubuque, has bound itself to allow ville, etc., R. Co., (1889) 37 Fed. Rep. 624; other companies to use part of its tracks or Little Rock, etc., R. Co. 1. St. Louis, etc., R. terminal facilities, this clause of the Act of Co., (1894) 59 Fed. Rep. 403; Atchison, etc., Congress does not affect such a contract, or R. Co. v. Denver, etc., R. Co., (1883) 110 U. the enforcement thereof. So, also, if the state S. 667.

of Iowa has provided by proper statute that Discrimination may be justified by dis different companies may have a joint or similar circumstances and conditions. Au common use of certain terminal facilities the gusta Southern R. Co. 1. Wrightsville, etc., rights of the several companies to such joint R. Co., (1896) 74 Fed. Rep. 522.

use are not affected by the provisions of the A connecting through line may be preferred Interstate Commerce Act, but the same must to a connecting local line. Little Rock, etc., be measured and determined by the statutes R. Co. v. East Tennessee, etc., R. Co., (1891) of the state.” Iowa v. Chicago, etc., R. Co., 47_Fed. Rep. 771, 49 Am. & Eng. R. Cas. 23. (1887) 33 Fed. Rep. 396.

Right of equal facilities reciprocal. -- The It is not a violation of the statute for a right and duty to furnish equal facilities are carrier to allow a connecting carrier the use reciprocal. Little Rock, etc., R. Co. v. East of its tracks or terminal facilities and to Tennessee, etc., R. Co., (1891) 47 Fed. Rep. refuse to allow a similar use by other con771.

necting carriers. Oregon Short Line, etc., R. Only at terminal points. — The duty to Co. v. Northern Pac. R. Co., (1892) 51 Fed. furnish equal and reasonable facilities for the Rep. 475; St. Louis Drayage Co. v. Louisinterchange of traffic is limited to furnishing ville, etc., R. Co., (1894) 65 Fed. Rep. 39; Little such facilities at terminal points. U. S. v. Rock, etc., R. Co. v. St. Louis Southwestern Delaware, etc., R. Co., (1889) 40 Fed. Rep. R. Co., (C. C. A. 1894) 63 Fed. Rep. 775; 101.

Kentucky, etc., Bridge Co. v. Louisville, etc., A road making a physical connection with R. Co., (1889) 37 Fed. Rep. 571. See also an established line at other than a terminal infra, this note, Duty to arrange for joint point must itself first furnish facilities for through transportation. the interchange of traffic, before it has a right The burden of proof is upon the complainto demand an interchange of traffic at such ing carrier to show a discrimination within point. Little Rock, etc., R. Co. v. St. Louis, the statute. Oregon Short Line, etc., R. Co. etc., R. Co., (1894) 59 Fed. Rep. 403, citing v. Northern Pac. R. Co., (1892) 51 Fed. Rep. Kentucky, etc., Bridge Co. v. Louisville, etc., 465. R. Co., (1889) 37 Fed. Rep. 567. See also Duty to arrange for joint through transAtchison, etc., R. Co. v. Denver, etc., R. Co., portation. -- The duty to furnish equal and (1883) 110 U. S. 667.

reasonable facilities for the interchange of Discrimination in rates and charges. — Dis traffic with connecting lines does not require crimination in rates and charges as between connecting carriers to enter into an arrangeconnecting carriers under substantially simi ment between themselves for joint through lar circumstances and conditions is unlawful. transportation, and they cannot be compelled Cutting v. Florida R., etc., Co., (1887) 30

to do so.

Such arrangements are left solely Fed. Rep. 663; Augusta Southern R. Co. v. to the voluntary action of the carriers themWrightsville, etc., R. Co., (1896) 74 Fed. selves. Little Rock, etc., R. Co. v. St. Louis, Rep. 522.

etc., R. Co., (1890) 41 Fed. Rep. 559; Little Through tickets. The statute does not Rock, etc., R. Co. v. East Tennessee, etc., R. require a carrier to sell through tickets over Co., (1889) 3 Int. Com. C. Rep. 1; Interstate its own and connecting lines. This is a right Commerce Commission v. Western, etc., R. which arises only out of private contract be Co., (C. C. A. 1899) 93 Fed. Rep. 83; St. tween the carriers. Chicago, etc., R. Co. v. Louis Drayage Co. v. Louisville, etc., R. Co., Pennsylvania ('o., (1887) 1 Int. Com. Rep. (1894) 65 Fed. Rep. 41; Little Rock, etc., R. 357, i Int. Com. C. Rep. 86. Applied in Co. v. St. Louis, etc., R. Co., (1894) 59 Fed. Kentucky, etc., Bridge Co. 1. Louisville, etc., Rep. 405; Cincinnati, etc., R. Co. v. Interstate R. Co., (1889) 37 Fed. Rep. 567.

Commerce Commission, (1896) 162 U. S. 184; Use of tracks and terminal facilities. – By Chicago, etc., R. Co. 1. Osborne, (1892) 10 express provision of the statute itself it can U. S. App._430, 52 Fed. Rep. 912; Little not be construed as requiring a carrier to Rock, etc., R. Co. 1o. St. Louis Southwestern give the use of its tracks or terminal facili. R. Co., (C. C. A. 1894) 63 Fed. Rep. 778; Centies to another carrier engaged in like busi tral Stock Yards Co. 1. Louisville, etc., R. ness. Little Rock, etc., R. Co. v. St. Louis, Co., (C. C. A. 1902) 118 Fed. Rep. 113. etc., R. Co., (1894) 59 Fed. Rep. 402; Ken This construction of the statute is based tucky, etc., Bridge Co. v. Louisville, etc., R. largely upon the fact that the Act Co., (1889) 37 Fed. Reg. 567; Oregon Short modeled upon the English Traffic Acts, and

was

the provision in the English Act requiring Co. 1. St. Louis, etc., R. Co., (1894) 59 Fed. such arrangement for through transportation Rep. 402, and the case is practically orerruled in certain cases was omitted, thus evincing by Prescott, etc., R. ('o. 1. Atchison, etc., R. the intention of Congress not to adopt that Co., (1896) 73 Fed. Rep. 438. feature of the law. Little Rock, etc., R. Co. Carriers may select their own agencies by 1. St. Louis Southwestern R. Co., (C. C. A. which through traffic shall be forwarded to or 1894) 63 Fed. Rep. 781; Little Rock, etc., R. from points beyond their own lines. PresCo. 1'. East Tennessee, etc., R. Co., (1889) 3 cott, etc., R. Co. v. Atchison, etc., R. Co., Int. Com. C. Rep. 9; Kentucky, etc., Bridge (1896) 73 Fed. Rep. 438, explaining New Co. v. Louisville, etc., R. Co., (1889) 37 Fed. York, etc., R. Co. r. New York, etc., R. Co., Rep. 567; Little Rock, etc., R. Co. v. St. (1892) 50 Fed. Rep. 867, which it practically Louis, etc., R. Co., (1890) 41 Fed. Rep. 559. overrules; St. Louis Drayage Co. 1'. Louisville,

Discrimination between connecting lines. etc., R. Co., (1894) 65 Fed. Rep. 39; Little The matter of joint through transportation Rock, etc., R. Co. 1. St. Louis, etc., R. Co., being left to the voluntary action of the (1890) 41 Fed. Rep. 563. carriers involved, it is not an unlawful Advancing charges or giving credit. — It is discrimination for carrier to arrange not an unlawful discrimination for a carrier for joint through transportation with to advance charges or give credit to certain certain connecting carriers and to refuse connecting carriers and to refuse to do so to make similar arrangements with other to others. Gulf, etc., R. Co. v. Miami Steamconnecting carriers. Little Rock, etc., R. ship Co., (C. C. A. 1898) 86 Fed. Rep. 407; Co. 1'. St. Louis Southwestern R. Co., (C. C. Little Rock, etc., R. Co. v. St. Louis SouthA. 1894) 63 Fed. Rep. 775, affirming 59 Fed. western R. Co., (C. C. A. 1894) 63 Fed. Rep. Rep. 400; Gulf, etc., R. Co. v. Miami Steamship 775, affirming 59 Fed. Rep. 400; Southern Co., (C. C. A. 1898) 86 Fed. Rep. 407; Pres Indiana Express Co. 1'. U. S. Express Co., cott, etc., R. Co. v. Atchison, etc., R. Co., (1898) 88 Fed. Rep. 662, affirmed (C. C. A. (1896) 73 Fed. Rep. 439; Kentucky, etc., 1899) 92 Fed. Rep. 1022; Oregon Short-Line, Bridge Co. v. Louisville, etc., R. Co., (1889) etc., R. Co. 1. Northern Pac. R. Co., (1891) 37 Fed. Rep. 567, citing Atchison, etc., R. Co. 15 U. S. App. 479, 61 Fed. Rep. 158, (1892) 1. Denver, etc., R. Co., (1883) 110 U. S. 51 Fed. Rep. 465. 668, decided under a similar provision in the Duty to draw cars of other companies. — statute of Colorado.

A carrier is not required to transport traffic In New York, etc., R. Co. v. New York, etc., in the cars of other companies where it has R. Co., (1892) 50 Fed. Rep. 867, it was held cars of its own equally available for the purthat when a railroad connects with two com pose. Oregon Short Line, etc., R. Co. 1. petitors, under substantially similar condi Northern Pac. R. Co., (1892) 51 Fed. Rep. tions, even at points a little apart, if it makes 465; Little Rock, etc., R. Co. 1. St. Louis, through rates with one it must make the etc., R. Co., (1894) 59 Fed. Rep. 407, (C. C. same with the other; but this was not fol A.) 63 Fed. Rep. 775. lowed, although cited in Little Rock, etc., R.

Sec. 4. [Long and short haul charges -- exceptions authorized.] That it shall be unlawful for any common carrier subject to the provisions of this act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier within the terms of this act to charge and receive as great compensation for a shorter as for a longer distance:

Provided, however, That upon application to the Commission appointed under the provisions of this act, such common carrier may, in special cases, after investigation by the Commission, be authorized to charge less for longer than for shorter distances for the transportation of passengers or property; and the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this act. [24 Stat. L. 380.]

as used in various parts of the Interstate CONSTRUCTION

Commerce Act, and the term "line" as used Construction. — Generally, as to the con in section 4. Interstate Commerce Commisstruction of the long and short haul provi sion 1. Cincinnati, etc., R. Co., (1893) 56 sion, see Texas, etc., R. Co. 1. Interstate Fed. Rep. 925, 54 Am. & Eng. R. Cas. 365. Commerce Commission, (1896) 162 U. S. “ The use of the word 'line' is significant. 220.

Two carriers may use the same road, but Meaning of the term “line." - There is a each has its separate line. The defendant clear distinction between the term “ railroad " may lease trackage rights to any other rail

AND

OPERATION

IN

GENERAL

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road company, but the joint use of the same 903, citing Chicago, etc., R. Co. v. Osborne, track does not create the same line, so as to (1892) 10 U. S. App. 430, 52 Fed. Rep. 912, compel either company to graduate its tariff 53 Am. & Eng. R. Cas. 18, reversing (1891) by that of the other." Chicago, etc., R. Co. 48 fred. Rep. 49, 49 An. & Eng. R. Cas. 12; 1. Osborne, (C. C. A. 1892) 52 Fed. Rep. Tozer 1'. U. S., (1892) 52 Fed. Rep. 917, 53 912, 53 Am. & Eng. R. Cas. 18, rerersing Am. & Eng. R. Cas. 14; U. S. V. Mellen, (1891) 48 Fed. Rep. 49, 49 Am. & Eng. R. (1892) 53 Fed. Rep. 229; Interstate ComCas. 12; quoted with approral in Interstate merce Commission 1. Alabama Midland R. Commerce Commission 1. Cincinnati, etc., R. Co., (1895) 69 Fed. Rep. 227. Co., (1893) 56 Fed. Rep. 925.

A combination of carriers for through Charge may violate each of first four sec transportation constitutes

“ line” tions. — A greater charge for a shorter than which is independent of the component lines, for a longer haul may be illegal not only and hence the charges made by the throug:1 under the above section, but also under sec line do not constitute a violation of the tion 1, as being unreasonable or unjust; and statute by the local and component lines and under section 2, as constituting an unjust

vice versa. Interstate Commerce Commisdiscrimination; and under section 3, as con sion 1'. Cincinnati, etc., R. Co., (1893) 56 Fed. stituting an undue and unreasonable prefer Rep. 937; Chicago, etc., R. Co. v. Osborne, ence or advantage. See notes to sections 1, (1892) 52 Fed. Rep. 912, 10 U. S. App. 2, and 3, passim.

430, reversing (1891) 48 Fed. Rep. 49; Junod The principle of the third and fourth sec v. Chicago, etc., R. Co., (1891) 47 Fed. Rep. tions is the same.

Interstate Commerce Com 290. See also supra, this note, as to meaning mission v. East Tennessee, etc., R. Co., (1993)

of word “line." 85_Fed. Rep. 107.

The joint rate established over a joint Equal charge for longer and shorter hauls. through line may be less than the sum of The above section only prohibits a greater

the local rates, or even less than the local charge for a shorter than for a longer haul. rate of either company over that part of its An equal charge does not violate this section road constituting a part of the joint line, of the statute, and is not illegal unless it without violating the long and short haul amounts to an unjust discrimination or an clause found in the fourth section. Parsons undue preference or advantage within the r. Chicago, etc., R. Co., (C. C. A. 1894) 63 prohibition of the second or third sections of Fed. Rep. 903, citing Chicago, etc., R. Co. v. the act. Detroit, etc., R. Co. 1. Interstate Osborne, (1892) 10 U. S. App. 430, 52 Fed. Commerce Commission, (1896) 74 Fed. Rep. Rep. 912. 803, 43 U. S. App. 308; Texas, etc., R. Co. Two or more connecting carriers cannot v. Interstate Commerce Commission, (1896) make a joint rate from one point to another 162 U. S. 197; Interstate Commerce Commis point which is less than the joint rate to an sion v. Brimson, (1894) 154 C. S. 447. intermediate point, but they may make a

Equality of charges for a longer and a joint rate to a point without the local rates shorter haul is legal only when the circum of either company to intermediate points being stances and conditions are so substantially affected thereby. The local rate might be different as to justify the discrimination. greater than the joint rate without th.s being Detroit, etc., R. Co. 1. Interstate Commerce à violation of the fourth section. U. S. v. Commission, (1896) 74 Fed. Rep. 803, 43 U. Mellen (1892) 53 Fed. Rep. 229, quoted with S. App. 308; Texas, etc., R. Co. v. Interstate approval in Interstate Commerce CommisCommerce Commission, (1896) 162 U. S. sion v. Cincinnati, etc., R. Co., (1893) 56 197; Interstate Commerce Commission v. Fed. Rep. 925. Brimson, (1894) 154 U. S. 447.

Free cartage not within statute. - This It has been said that an equal charge can section has in view only the transportation of be justified only by circumstances which passengers and property by rail, and when would justify a greater charge for a shorter property transported as interstate commerce than for a longer haul. Detroit, etc., R. Co. reaches its destination by rail at lawful t. Interstate Commerce Commission, (1896) rates, having regard to rates charged upon 74 Fed. Rep. 803, 43 U'. S. App. 308.

similar transportation to other points on the Group rates. — Charging equal rates to or line, it does not concern the Interstate Comfrom stations of a longer and shorter haul merce Commission whether the goods after included in a single group for the purpose arrival are carried to their place of deposit of making rates is not a violation of the above i vehicles furnished by the railway company section. Detroit, etc., R. Co. 1. Interstate free of charge, or in vehicles furnished by Commerce Commission, (1896) 74 Fed. Rep. the owners of the goods; and the same rule 803, 43 U. S. App. 308, affirmed 167 U. S. 639, applies to the transportation of passengers. citing Imperial Coal Co. 1. Pittsburgh, etc., Interstate Commerce Commission v. Detroit, R. Co., (1888) 2 Int. Com. C. Rep. 618. etc., R. Co., (1897) 167 U. S. 633.

As to the legality of group rates under other sections of the act, see

SIMILARITY

CIRCUMSTANCES

notes to previous sections.

Local and joint through rates. — The local Effect of dissimilarity. — The prohibition rate between two points on the same road may of a greater charge for a shorter than a be higher than the joint through rate for a longer haul is expressly confined to cases longer haul, including in port the road ba. where the circumstances and conditions are tween the local points. Parsons v. Chicago, substantially similar. Accordingly, where the etc., R. Co., (C. C. A. 1894) 63 Fed. Rep. circumstances and conditions are substan.

OF

AND

CON

DITIONS.

tially dissimilar, this section of the statute Similarity of conditions a question of fact. has no application. Missouri Pac. R. Co. v. - Missouri Pac. R. Co. 1. Texas, etc., R. Co., Texas, etc., R. Co., (1887) 31 Fed. Rep. 862; (1887) 31 Fed. Rep. 862; Osborne v. ChiLouisville, etc., R. Co. v. Behlmer, (1900) cago, etc., R. Co., (1891) 48 Fed. Rep. 49; 175 U. S. 648; Interstate Commerce Commis Interstate Commerce Commission v. Alabama sion v. Alabama Midland R. Co., (1897) 168 Midland R. Co., (1897) 168 U. S. 144; CinU. S. 173, (1895) 69 Fed. Rep. 227; Inter cinnati, etc., R. Co. v. Interstate Commerce state Commerce Commission 1. Cincinnati, Commission, (1896) 162 U. S. 184, etc., R. Co., (1897) 167 U. S. 479; Inter Presumption and burden of proof. — Where state Commerce Commission v. East Tennes a greater charge is made for a shorter than a see, etc., R. Co., (1898) 85 Fed. Rep. 117; longer haul, there is no presumption against Interstate Commerce Commission 1'. Western, the carrier that the circumstances are subetc., R. Co., (1898) 88 Fed. Rep. 192; Cin stantially similar and hence that the charge cinnati, etc., R. Co. v. Interstate Commerce is unlawful, but on the contrary the burden Commission, (1896) 162 U. S. 184; Inter of proof is upon the party complaining to state Commerce Commission v. Cincinnati, show that the circumstances and conditions etc., R, Co., (1893) 56 Fed. Rep. 925; Junod are substantially similar. Junod v. Chicago, v. Chicago, etc., R. Co., (1891) 47 Fed. Rep. etc., R. Co., (1891) 47 Fed. Rep. 290; Detroit, 290; Interstate Commerce Commission V. etc., R. Co. v. Interstate Commerce CommisNashville, etc., R. Co., (C. C. A. 1903) 120 sion, (C. C. A. 1896) 74 Fed. Rep, 839, citing Fed. Rep. 934.

Interstate Commerce Commission V. CinDegree of dissimilarity. — According to the cinnati, etc., R. Co., (1893) 56 Fed. Rep. 925; best considered cases any substantial dis Interstate Commerce Commission v. Atchison, similarity of circumstances and conditions etc., R. Co., (1892) 50 Fed. Rep. 295; and renders the above express provision as to long Osborne 1. Chicago, etc., R. Co., (1891) 48 and short hauls wholly inapplicable. Inter Fed. Rep. 49, rerersed (1892) 52 Fed. Rep. state Commerce Commission v. Western, etc., 912, 10 U. S. App. 430, but upon other points. R. Co., (1898) 88 Fed. Rep. 195, citing with In cases of doubt, the doubt should go in approval Matter of Louisville, etc., R. Co., favor of the application of the statute, and (1887) 1 Int. Com. C. Rep. 57; Interstate the conditions should be taken as substanțially Commerce Commission 1. Atchison, etc., R. similar. Missouri Pac, R. Co. v. Texas, etc., Co., (1892) 50 Fed. Rep. 300; Behlmer v. R. Co., (1887) 31 Fed. Rep. 862, 31 Am. & Louisville, etc., R. Co., (1896) 71 Fed. Rep. Eng. R. Cas. 76, followed in Pittsburgh, etc., 839; Interstate Commerce Commission v. Ala R. Co. v. Racer, (1892) 5 Ind. App. 209, and bama Midland R. Co., (1897) 168 U. S. 144; quoted in Interstate Commerce Commission and disapproving Interstate Commerce Com V. Cincinnati, etc., R. Co., (1893) 56 Fed. mission v. East Tennessee, etc., R. Co., (1898) Rep. 925. 85 Fed. Rep. 107, wherein it was held that Circumstances to be considered. - In dethe decision in the Alabama Midland rail

termining the legality of a greater charge for road case did not go so far as this, but that a shorter than a longer haul, the interests of even under that decision the dissimilarity in the public, shippers, consumers, and carriers conditions must be proportionate to the must all be considered. Louisville, etc., R. difference in rates; and criticising the views Co. v. Behlmer, (1900) 175 U. S. 648; Texas, of the commission in Savannah Bureau of etc., R. Co. v. Interstate Commerce CommisFreight, etc., v. Charleston, etc., R. Co., sion, (1896) 162 U. S. 197. See also similar (1897) 7 Int. Com. Rep. 479.

cases under other sections of act. It has been held, however, that the mere That the smaller charge for the longer haul existence of dissimilar circumstances and con is of great importance to the longer distance ditions does not render this section inopera point, in enabling its merchants to build tive unless the dissimilarity is so great as to up a great trade that would otherwise be lost, justify the discrimination involved in charg is no justification for such discrimination. ing a greater sum for a shorter than a longer Behlmer v. Louisville, etc., R. Co., (C. C. A. haul. Interstate Commerce Commission v. 1897) 83 Fed. Rep. 898. East Tennessee, etc., R. Co., (1898) 85 Fed. Competition between rival carriers. – ComRep. 107, distinguishing Interstate Commerce

petition between rival carriers affecting Commission V. Alabama Midland R. Co., rates to the further but not the nearer (1897) 168 U. S. 144. But see Interstate

point must be considered in determining Commerce Commission v. Western, etc., R. the similarity of circumstances and Co., (1898) 88 Fed. Rep. 186, wherein this ditions, and it may be sufficient to justify case is disapproved.

a greater charge for the shorter than the This conflict of opinion is, perhaps, not longer haul. Atchison, etc., R. Co. v. Denver, very material, for if the discrimination of a etc., R. Co., (1883) 110 U. S. 683; Ex p. greater charge for a shorter than a longer Koehler, (1887) 12 Sawy. (U. S.) 446, 31 haul is not in proportion to the dissimilarity Fed. Rep. 315; Missouri Pac. R. Co. Texas, of conditions the rate may be declared illegal etc., R. Co., (1887) 31 Fed. Rep. 862; Junod under section 1, as being unjust or unreason V. Chicago, etc., R. Co., (1891) 47 Fed. Rep. able, or under section 2, as being an unjust 290; Interstate Commerce Commission discrimination, or under section 3, as being Atchison, etc., R. Co., (1892) 50 Fed. Rep. an undue preference or advantage. Inter 295, 50 Am. & Eng. R. Cas. 93; Interstate state Commerce Commission v. Western, etc., Commerce Commission v. Cincinnati, etc., R. R. Co., (1898) 88 Fed. Rep. 186; Louisville, Co., (1893) 56 Fed. Rep. 925; Behlmer v. etc., R. Co. v. Behlmer, (1900) 175 U. S. 648. Louisville, etc., R. Co., (1896) 71 Fed. Rep.

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