sending the freight across to the dock of the Navigation Company. While the boats of the Narragansett Company are not running, the Navigation Company transports this freight by the Newport and Jamestown Ferry Company, paying that company its regular charge of 3 cents per hundred pounds, drays the freight from the dock of the ferry company at Newport to its own dock, and sends it along by its steamers to destination.

By this route, which is now in operation, fish are received in Jamestown in the afternoon and leave Jamestown during the winter not later than 5 o'clock, during the summer as late as 7 or 8 o'clock, arriving in New York by the boats of the navigation company the next morning. This service between Jamestown and New York is reliable and satisfactory so far as the physical transportation is concerned. The shipper of fish can send his commodity with the same certainty by this route that he could by the Enterprise company. During the winter the time is about the same; during the summer it is a trifle better.

Considerable quantities of fish are shipped from Newport to Philadelphia, and the New England Navigation Company has through arrangements and a joint through rate with the Pennsylvania Railroad Company. The local rate of the Navigation Company on fish from Newport to New York is 19 cents per hundred pounds. The local rate of the Enterprise company from Jamestown to New York is 134 cents per hundred pounds.

When fish destined for Philadelphia arrive at the dock of the navigation company they are taken by drays to the pier of the Pennsylvania Company upon the Hudson River and delivered to that company at that point. When fish are taken by the Enterprise company for Philadelphia they are drayed across the city in exactly the same way and are delivered to the Pennsylvania Company at the same point and in the same manner. It appeared that occasionally fish were lightered by the navigation company directly to the Jersey side, but this mode of procedure was very unusual and may be disregarded. The drayage charges across the city of New York are 4 cents per hundred pounds.

The Pennsylvania Company loads these fish upon its cars at its pier upon the New York side, and lighters the cars from there to its terminal upon the Jersey City side. The train in which they move to Philadelphia leaves New York at 3 o'clock in the afternoon. The quantity moved is, almost without exception, in gross, more than one carload and often several carloads, but the consignments are comparatively small, and as a practical matter the carload rate is never applied. So far as the service is concerned, it costs the Pennsylvania Company exactly the same, whether the fish are brought there by the navigation

company or the Enterprise Company, and so far as the Pennsylvania Company is concerned, that company could discharge the service with precisely the same cost and convenience if the fish were brought there by half a dozen companies, instead of by one, aside from the fact that it might be somewhat more convenient if the fish were drayed to its pier upon the Hudson River by one company and as one consignment, instead of by several companies.

The through rate on fish from Newport to Philadelphia via the joint line of the defendants is 34 cents per 100 pounds; from Jamestown, 37 cents per 100 pounds, being an addition of 3 cents per 100 pounds for the ferry charge from Jamestown to Newport. The through charge from Jamestown to Philadelphia via the Enterprise Company is 39 cents per 100 pounds, which is made up of the 13 cents from Jamestown to New York City, 4 cents for drayage across the city of New York, and 22 cents, the regular first-class rate from New York to Philadelphia, which is applied to shipments of fish in less than carload lots. The Pennsylvania Company receives for its service, when the fish are brought to New York by the Enterprise Company, its full local rate of 22 cents. When it transports fish under its joint through tariff with the New England Navigation Company it receives for exactly the same service in the division of the rate with that company 7 cents per 100 pounds.

The New England Navigation Company and the Pennsylvania Railroad Company file and post a joint through tariff naming this rate of 37 cents from Jamestown to Philadelphia. The ferry company is named as a party to this through route, but it does not concur in the tariff.

This complaint was filed December 21, 1906.

At common law, the establishment of through routes and joint rates between different carriers was entirely a matter of contract. The original act to regulate commerce provided in its third section that common carriers subject to its provisions should afford reasonable facilities for the interchange of traffic between their respective lines; but under the decisions of the courts and the Commission this provision in no respect modified the common law. Railroad Commission of Kentucky v. Louisville & Nashville Railroad Co., 10 I. C. C. 173, 188, and cases there cited.

The amendment of June 29, 1906, makes it the duty of carriers subject to the act to establish through routes and just and reasonable rates applicable thereto, and invests this Commission with authority, under certain conditions, to put in operation such through routes and joint rates where the carriers have refused to do so.

The fifteenth section of the amended act provides, not that the Commission shall, but that it may, after hearing upon complaint, establish

through routes and joint rates. It seems plain that the intention of the statute was to confer upon this body certain discretionary power under which it might inquire whether, in the interest of the public, the through route asked for ought to be established. Manifestly, rail lines leading from New York ought not to be required to enter into through arrangements with every ship which sails into that port, sʊ the first inquiry would seem to be one of fact. Under all the circumstances, ought the Pennsylvania Railroad Company to be required to make a joint rate with the complainant for the handling of these fish from Jamestown to Philadelphia and intermediate points?

This question we are inclined to answer in the affirmative. The Enterprise Transportation Company is not a sporadic affair, transacting an insignificant and uncertain business. It has paid in capital stock of $400,000, has maintained for some time a regular service between Fall River and New York, carried last year 100,000 passengers, and handles over its pier in New York several thousand tons of freight per week. It carried from Jamestown during the year 1906 about 4,000 tons of freight, a large part of which was fish. The Enterprise Company is a competitor of the New England Navigation Company. The law favors and commercial considerations require reasonable competition of this sort; but plainly the Enterprise Company can not sustain itself against its rival if it is compelled to stop at New York and allowed no facilities beyond.

It often happens that fish can be more conveniently landed by the fishermen at Jamestown than at Newport, owing sometimes to the locality in which they are taken and sometimes to the state of the weather. Considerable quantities are now marketed through that port and greater quantities would be handled there if the facilities for transportation were better. The testimony indicates that even under present conditions the Enterprise Company delivers at some seasons of the year from 50 to 200 barrels of fish per day to the Pennsylvania Railroad for transportation beyond New York. We think that the establishment of this through route would be of distinct benefit to Jamestown, and to the fishermen who have occasion to use that port. If, therefore, it were entirely within our discretion to refuse or grant this petition we should deem it our duty to grant it.

Congress has, however, placed upon the right of the Commission to establish such through routes a very important limitation. The fifteenth section empowers the Commission to act "provided no reasonable or satisfactory through route exists." The defendants in this case urge that there is between Jamestown and New York a reasonable and satisfactory through route and that, therefore, the Commission has no jurisdiction to entertain this complaint.

We have recently held that a through route may exist, although there is no joint rate applicable to transportation over that route.

The defendants insist that this kind of a through route is sufficient to divest the Commission of jurisdiction under the fifteenth section, and that it is clearly without power to act upon this petition, inasmuch as there is in effect a through route by which fish can be and are daily transported from Jamestown to Philadelphia as a through shipment. Since fish can in fact be billed through between these points, they insist that the only question which can be raised upon this proceeding touches the physical convenience of this route. If, they say, the service between Jamestown and Philadelphia is satisfactory, then the Commission is without jurisdiction in the premises.

If this is the question, then we must find in favor of the defendant; for there can be no doubt that the transportation itself from Jamestown to New York via the Navigation Company is exactly as satisfactory, and perhaps during the summer months even more satisfactory, than via the Enterprise Company, since the fish can leave Jamestown at a slightly later hour in the evening and arrive in New York at a slightly earlier hour in the morning. So far as Philadelphia is concerned the service is precisely the same by either the Navigation Company or the Enterprise Company, since the train for Philadelphia does not leave New York until 3 o'clock in the afternoon, and fish reaching New York by either route can be easily delivered at the Pennsylvania pier in time for loading by that train.

We apprehend, however, that the real question before us is not whether the physical carriage of the fish from Jamestown by the Navigation Company is satisfactory, but whether there exists via that line any legal through route whatever between these points. It will be remembered that the fish are carried from Jamestown to Newport by a ferry company at the regular rates of that company, and that this ferry company does not concur in and is in no legal sense a party to the through tariff.

It is certainly doubtful whether, as claimed by the defendants, a through route over which no joint rate applies is the kind of a through route whose existence, under the fifteenth section, will divest this Commission of jurisdiction. Such a route is a de facto arrangement. No legal notice of it is required. It may be established and discontinued by the carriers at their pleasure. The shipper at the initial point has no means of ascertaining from tariffs there on file the cost. of the through transportation or the conditions which may be attached to it. There is certainly good ground for holding that the through route which the Commission should establish under the fifteenth section carries with it, under all circumstances, a joint rate, and that the kind of a through route which will divest the Commission of its jurisdiction in this particular must be as beneficial to the public as the route which the Commission may otherwise establish.

We do not, however, find it necessary to pass upon that question at this time. The sixth section provides "if no joint rate over the through route has been established the several carriers in such through route shall file, print, and keep open to public inspection, as aforesaid, the separately established rates, fares, and charges applied to the through transportation.'

If therefore there is a through route from Jamestown to Philadelphia, all the carriers in that route which are subject to the act to regulate commerce must either concur in a joint tariff or file their separately established charges for the portion of the transportation performed by them, and unless this is done there is no legal and therefore no satisfactory through route. The Newport & Jamestown Ferry Company performs a part of this service. It is not a party to the joint through rate, and it does not file and publish its separate schedules. If therefore that company is a common carrier subject to the act, there is at the present time no legal through route from Jamestown to Philadelphia. The basic question is this, Is the ferry company a common carrier which should file its tariff as such, or is it simply an agency which the defendants may use for the purpose of extending their line from Newport to Jamestown?

For the purpose of testing this question, let us assume that Newport is situated in one State and Jamestown in another, and that the two are connected by a bridge over which trains are regularly operated by the company owning the bridge for the transportation of freight and passengers for hire. Can it be doubtful that this bridge company is obliged to file and post the schedules under which this interstate transportation is handled? Can it make the slightest difference whether this line of railway operates over a bridge or a dump, whether it is 1 mile or 50 miles in length?

Let us assume, now, that instead of this ferry a bridge connects Jamestown and Newport, both within the State of Rhode Island. The bridge company may transport passengers and merchandise locally between these two points without the filing of a tariff; but it is plain that if it enters into a through arrangement with the New England Navigation Company or with the New York, New Haven & Hartford Railroad Company by which freight is taken up at Jamestown and carried as a through proposition to New York, it must either join in a through rate from Jamestown to. New York or must publish its own charges which are applicable to this through interstate transportation. So of this ferry company. Being a water carrier it would not be subject to the act to regulate commerce and would rest under no obligation to publish or observe its tariff rates, whether its transportation were State or interstate, until it entered into some arrangement with a rail carrier for the interstate transportation of passengers or of