an unreasonable one), while none is made for the tank containing the oil. It might be different if plaintiffs desired tank cars and defendants failed to furnish them on demand.

We are of opinion and conclude that the Morse private-wire service is not shown to be unjustly discriminatory or unduly prejudicial to users of respondents' public telegraph service.

The abuses to which we have referred seem chiefly to be, first, the restoration of private wires after interruption before the needs of the general public are adequately cared for, and, second, the sending of what are known as "contraband" messages.

With regard to the first, we recognize the fact that we have "no control whatever" over the operation or physical maintenance of carriers subject to the act. The New England Investigation, 27 I. C. C., 560, 616. But respondents' services, other than those specified in the act, can be recognized as a legitimate exercise of the power to classify only where they are just and reasonable. We are not to be understood as considering just and reasonable any classification which operates to restrict to a few persons equipment necessary for the efficient service of the public. In this connection it is proper to state that the provisions in the contract of one respondent that in time of interruption to the private wires, the public wires can be used at half the regular rates is unduly preferential and must be eliminated.

The second point raises a problem in which the practical and legal questions presented are complicated in the extreme. In the last analysis the status of "contraband" messages can be determined only in a court of competent jurisdiction. Yet the question is squarely presented to us and it seems only fair to the parties to dispose of it in so far as we can.

The analogy between the private-wire lessees and forwarders of freight has been urged upon us. In what is known as the Forwarders Case, Int. Comm. Comm. v. Del. L. & W. R. R., supra, the Supreme Court sustained our holding that mere ownership of goods tendered for transportation can not be made a test of the duty to carry or a basis for fixing charges; and that under the act to regulate commerce a carrier can not refuse to transport carload lots at carload rates because the goods do not actually belong to one shipper or are shipped by a forwarding agency for account of others. This principle is obviously sound, but, as stated above, great care should be taken in applying rules for the regulation of railroads to that of telegraph companies. In forwarding a carload of freight the property is delivered to the carrier in one lot; the property passes into its possession; the quantity is definitely known and is paid for on the basis of quantity, subject to an established minimum weight; and the right to ship an aggregated lot of shipments as a carload lot is restricted

by the established rules governing mixed carload shipments. In the case of private-wire service the messages are sent at various times; no property passes into the hands of the telegraph company; the quantity can be known to the carrier only after the messages have been transmitted and then only by censoring the messages; the messages have no tangible value; and usually their value would be known only to the sender and recipient.

In the case of private-wire service it seems entirely proper and, from a practical standpoint, necessary in the interest of the public to apply some reasonable restrictions to the service. To concede the analogy of the Forwarders Case to the private-wire service would overlook the fact that the application of the doctrine to the latter service would more nearly resemble renting at fixed rates to certain persons freight cars in which they might transport for themselves and others whatever articles they desired, unknown to the carriers and regardless of the charges on such articles when shipped by others. Moreover, the holding in the Forwarders Case rests directly on the inhibition of section 2 of the act against charging one person more than another for doing "a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions." 220 U. S., 235, at p. 253. Section 2 is by its terms restricted to "the transportation of passengers or property.

We are of opinion and conclude that respondents are justified in inserting in the contract for private-wire service a provision restricting the use of the instruments and facilities provided to the transmission of messages concerning the business of the lessee or lessees and providing that messages shall not be transmitted for other persons or firms. As shown above such provisions are now embodied in respondents' contracts, but it is said that they are not enforced. While section 6 of the act does not require telegraph and telephone companies to publish and file their charges for interstate transmission of messages, other sections require that such charges shall be just and reasonable, and neither unduly preferential nor unduly prejudicial. The nonenforcement or discriminatory enforcement of any rule affecting the service may well result in violations of these provisions of the act. Phillips v. Grand Trunk Ry., 236 U. S., 662. So long as a provision remains a part of the contract it should be enforced. This is not to say that we consider it unlawful for two or more persons to unite in securing private-wire service. But where this is done all should be named as lessees.

While recognizing the propriety of the so-called Morse privatewire service as a separate class of service available to the public upon reasonable compensation, it is not to be inferred that we ap

prove the existing relation between the charges for such service and those for messages sent through respondents' commercial offices. Whatever may be the defects in the examples set forth earlier in this report they obviously warrant the conclusion that respondents are furnishing the more valuable service at a relatively lower charge contrary to recognized principles of classification.

In Western Union Tel. Co. v. Call Pub. Co., supra, the court said, p. 100:

As a consequence of this, all individuals have equal rights both in respect to service and charges. Of course, such equality of right does not prevent differences in the modes and kinds of service and different charges based thereon. There is no cast-iron line of uniformity which prevents a charge from being above or below a particular sum, or requires that the service shall be exactly along the same lines. But that principle of equality does forbid any difference in charge which is not based upon difference in service, and even when based upon difference of service, must have some reasonable relation to the amount of difference, and can not be so great as to produce an unjust discrimination.

The Postal on brief says:

We do not hesitate to say that the present leased-wire rate is unreasonably low, as compared with the public-telegraph rate. There can be no doubt that the amount of telegraph business which can be sent over a leased wire during the day would cost very much more if sent at the public rate.

As pointed out, however, it is beyond our power to require respondents to increase their charges for private-wire service. And even did such power exist, we can not assume that these charges should be raised rather than that those for the sending of day messages should be reduced. The charges for messages other than by private wires are not in issue.

Few complaints concerning the rates and service of the three respondents have been filed with us, and consequently this field of regulation has been little touched. Moreover, we appreciate the fact that the Bell company proper furnishes directly no other form of telegraphic communication to the public; that it is not responsible for the commercial rates of its competitors; and that the relation, if any, between rates for telegraphic and telephonic communication may be difficult to establish. The Bell company in fixing its rates assumed a certain relation between the telephone and telegraph service to exist based upon the number of wires in the circuit.

We are convinced of respondents' desire to have their rates just and reasonable in themselves and properly related with respect to the various services performed. They should consider whether or not their rates for Morse private-wire service should be revised.

Passing now to the private-wire talking service furnished by the Bell company, we are unable to perceive any essential differences between this and the toll service rendered the general public by that

company. It is true that such service is rendered at stated times and for longer periods than is usual with toll messages, but this seems merely an application of the wholesale theory which we have so often condemned.

The Bell company on brief concedes that the cases of Hayes v. Pennsylvania Co., 12 Fed., 309, and United States v. Tozer, 39 Fed., 369, which "hold that quantity alone offers no basis for a difference in classification," are "undoubtedly good law."

Upon the record we are of opinion and find that the classification in this respondent's private-wire talking service of messages by telephone is not a just and reasonable classification, and that in maintaining this talking service the Bell company unduly prefers messages sent by private wire and the lessees of such wires and subjects to undue prejudice messages sent at the toll rates and the senders thereof.

By virtue of the President's proclamation dated July 22, 1918, all telegraph and telephone systems within the jurisdiction of the United States are now under federal control. The authority primarily to determine and initiate the character of services to be furnished by these systems, and the concomitant classification and charges, no longer rests with the private interests which are respondents in this proceeding, and the entry of an order would serve no useful purpose. Nevertheless, since this statement of facts so far as they have been developed and the incidental discussion may be beneficial in the form of a public report, we have deemed it expedient to promulgate this report.

50 I. C. C.

CASES DISPOSED OF BY THE COMMISSION WITHOUT PRINTED REPORT DURING THE TIME COVERED BY THIS VOLUME.

6077. FARRELL v. C., M. & ST. P. RY. CO. ET AL.

Rate on potatoes from Britton, S. D., to Drexel, Mo., via the C., M. & St. P. Ry. and K. C. S. Ry. P. W. Dougherty, D. L. Kelley, and J. J. Murphy for complainant. O. W. Dynes and J. G. Love for defendants. Dismissed for want of prosecution, June 14, 1918.

8880. SKIPWORTH & CO. ET AL. v. S. RY. Co. et al. Rates on cotton from points in Georgia on the line of the Augusta Southern Railroad Co. to Augusta, Ga., and reforwarded to Rockwell, N. C. W. S. Creighton for complainants. L. Green and C. B. Northrop for defendants. Dismissed on request of complainants, July 22, 1918. 9020. MULTIPLE CAR LOT RATES. Order of Commission requiring carriers to show cause why an order should not be entered requiring them to cease and desist from maintaining tariffs providing for rates applicable only on multiple car lots or on certain quantities in excess of a single car lot. All objectionable multiple car lot rates having been canceled, proceeding discontinued, July 6, 1918.

9286. CALIFORNIA WHOLESALE POTATO DEALERS Asso. v. S. P. Co. Delay in providing the necessary equipment and distribution of Pacific Fruit Express cars, for the movement of potato and onion crops from points in Oregon, Nevada, and California, to interstate markets. Percy Small for complainant. F. H. Wood, C. W. Durbrow, G. D. Squires, and F. B. Austin for defendant. Dismissed on request of complainant, July 15, 1918.

Rates on coal

A. L. Vogl for

9304. BIG HORN COLLIERIES Co. v. C., B. & Q. R. R. Co. et al. from Crosby, Wyo., to points in Nebraska, Iowa, and South Dakota. complainant. J. F. Vallery for defendants. Dismissed on request of complainant, May 22, 1918.

9680. BAYWAY CHEMICAL Co. et al. v. C. R. R. Co. of N. J. et al. Rates on shipments of a commodity described as "products of the distillation, at high temperature in the carbureting portion of the water gas process, of gas oil," the latter being a petroleum product. E. L. Dimick for complainants. A. H. Elder, W. H. Oakes, and R. N. Collyer for defendants. Dismissed on request of complainants, July 15, 1918.

9772 and Subs. 1, 2, and 3. MARTIN v. N. Y., N. H. & H. R. R. Co. Demurrage charges or so-called heater storage charges, in addition to the regular car demurrage charges at Harlem River local station. A. W. Rinke and H. L. Davis for complainant. C. M. Sheafe, jr., for defendant. Dismissed on request of complainants, June 11, 1918.

9893. HENNESSY Co. v. B., A. & P. Ry. Co. et al. Rates on sugar from San Francisco, Oakland, Crockett, and Potrero, Cal., to Butte, Mont. O. W. Tong for complainant. O. W. Dynes, S. H. E. Freund, H. A. Scandrett, G. H. Smith, J. O. Moran, C. W. Bunn, D. F. Lyons, F. H. Wood, C. W. Durbrow, G. D. Squires, F. B. Austin, and M. S. Dean for defendants. Dismissed on request of complainant, July 15, 1918. 9951. PACIFIC COAST STEEL Co. v. G. N. Ry. Co. et al. Rates on scrap iron and steel from Chicago, Ill., Milwaukee, Wis., and St. Paul and Duluth, Minn., and points west thereof, to Seattle, Wash. S. J. Wettrick for complainant. F. V. Brown, L. B. DuPonte, S. J. Henry, and O. P. Kellogg for defendants. Dismissed on request of complainant, June 11, 1918.

9999. SAVAGE TIRE Co. v. ERIE R. R. Co. et al. Class rates on nickel-plated brass valves and parts thereof, from New York, N. Y., to San Diego, Cal. O. T.