and in the absence of a statute, they were not obliged to furnish equal facilities to all express companies. The regulation of such matters, said the court, was legislative and not judicial. $108. Under common control, management or arrangement for a continuous carriage. The rulings of the Commission as to what constitutes a common control, management or arrangement for a continuous carriage have been affirmed by the courts. The test of subjection to the act is through routing in interstate commerce. When a carrier unites with one or others in making a rate for interstate traffic and a through bill is issued therefor, it is subject to the act. In C., N. O. & T. P. R. Co. v. Commission, 162 U. S. 184, 40 L. Ed. 935, the Supreme Court held that a railroad company whose road was wholly within the bounds of a single state which had voluntarily engaged as a common carrier in interstate commerce by making an arrangement for the continuous carraige of goods through another state, was subject as to such traffic to the provisions of the act. An express agreement for a through rate is not required, but the successive receipt and forwarding in the ordinary course of business by two or more carriers in interstate traffic under through bills, or any arrangement for a continuous carriage over their lines, constitutes assent to such common arrangement for the carriage with the meaning of the

act.

When there is a through bill of lading for a continuous carriage, it is immaterial that one of the roads party to the through bill received the sole benefit of the rate on its own line. Such a case was presented to the Supreme Court in L. & N. R. Co. v. Behlmer, 175 U. S. 648, 44 L. Ed. 309, where the court said that the contention under this state of facts that the carriers did not constitute a continuous line bringing them within the control of the act to regulate commerce was no longer open to controversy in that court. See also United States v. Seaboard Railway Co., 82 Fed. Rep. 563.

A local switching company is not subject to the act where it makes no contracts of through shipment, but imposes a separate trackage charge upon the other companies for the use of its tracks in local transportation. But where such a company does become a party to such a contract for through shipment, it becomes as to such business subject to the act. See C., M.

& St. P. R. Co. v. Becker, 32 Fed. Rep. 849. As to the evidencing of contracts for through shipments, see the ruling of the Commission in 2 I. C. C. R. 553, and 2 Int. Com. Rep. 393.

Through routing by arrangement for continuous interstate traffic is a matter of contract between the carriers, and there is no provision for either the courts or the Commission enforcing the making of such contracts; 3 I. C. C. R. 592 and 2 Int. Com. Rep. 806. See infra, section 3, "Interchange of Facilities."

§ 109 Transportation through a state.-Commerce be-. tween points in the same state, but which, in the being carried from one point to another is carried through another state, is interstate commerce and subject to the act. This was definitely determined by the supreme court in Hanley v. Kansas City Southern Railway Co., 187 U. S. 617, 47 L. Ed. 333 decided January 1903, where the court affirmed the judgment of the circuit court of Arkansas enjoining the railroad commissioners of Arkansas from fixing and enforcing rates upon that part of the route within the state of Arkansas of a shipment beginning and ending in the state of Arkansas. The court held that there could be but one rate fixed by one authority and that the case was analogous to that of navigation on the high seas between ports of the same state. The court distinguished this case from that of a tax which was sustained in Lehigh Valley Ry. Co. Pennsylvania, 145 U. S. 192. 36 L. Ed. 672 which was in respect of the receipts of the proportion of the transportation within the state. A tax may be thus apportioned according to mileage, but when a rate is established, it must be established as a whole. This was the view that had been sustained by the Commission in several cases, 7 I. C. C. R. 92, and. overrules United States v. Lehigh Valley R. Co., 115 Fed. Rep. 372, and several state decisions which had been based upon the decision in the Lehigh Valley Case.

§ 110. Interstate electric railroads. It was ruled by the Commission, 7 I. C. C. R. 83, though the question does not seem to have been adjudicated in the courts, that a line of electric railroad lying partly in the District of Columbia and partly in the state of Maryland, was subject to the act, although it was constructed on public highways and was essentially a suburban road for the convenience of urban and suburban passengers.

Two of the Commissioners dissented on the ground that the

terms of the act were not broad enough to include street railways.

§ 111. Receivers, lessees and purchasers pendente lite.When railroad corporations are subject to the act, their receivers are also subject to its prohibitions, requirements and regulations. 6 I. C. C. R. 1; 6 I. C. C. R. 378; see also Erb v. Morash, 177 U. S. 584, 44 L. Ed. 897. Lessees of such corporations and purchasers at foreclosure sales are bound by the orders of the Commission made pending such foreclosure. Interstate Commerce Commission v. W., N. Y. & P. R. Co., W. D. of Pa. 82 Fed. Rep. 192.

It was ruled by the Commission in 6 I. C. C. R. 378, that a railroad company subject to the Act, could not by leasing its road, free itself from liability for practices made illegal by the act, nor after resuming possession of its property, pending proceedings against it to enforce such statutory provisions, claim exemption from liability during the time of the lease.

$112. Foreign commerce.-The act includes traffic "from any place in the United States to any adjacent foreign country," and "from any place in the United States "through a foreign country to any other place in the United States," and also "from any place in the United States to a foreign country and carried from such place to a port of trans-shipment," or "from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States, or an adjacent foreign country."

The Supreme Court said in the Import Rate case, 162 U. S. 197, 40 L. Ed. 940, after quoting this part of the section.

"It would be difficult to use language more unmistakably signifying that congress had in view the whole field of commerce (excepting commerce wholly within a state) as well that between the states and territories as that going to or coming from foreign countries."

The jurisdiction of the Commission extends to only that part of the through import or export rate which applies to the inland proportion received by the carrier. As to effect of competition in import and export rates making dissimilar circumstances and conditions under sections 3 and 4, see p. 217. infra. As to publications of import and export rates, see 8 I. C. C. R. 214; 10 I. C. C. R. 55.

It was contended in a recent case before the Commission (10 I. C. C. R. 63), that when traffic is transported from a point within the United States to a point in a foreign country, not adjacent, upon a though bill of lading, such transportation is not within the purview of the act. It is true that the section does not include by any comprehensive language all transportation between points in the United States and points. in foreign commerce, but states in detail what traffic is included. This contention would exclude from the act the vast volume of commerce with countries not adjacent, and the Commission said that the question was really decided by the Supreme Court in the Import Rate case in the language quoted above, though the exact point was not before the court, and therefore held that traffic transferred from a point within the United States to a point in a foreign country through a port of transhipment is within the first section.

§ 113. Place of incorporation of the carrier immaterial. The Commission has ruled that a foreign railroad corporation such as the Grand Trunk Railroad Company carrying on its traffic between the United States and Canada, was subject as to its business in the United States to the same rules and conditions as domestic carriers. 3 I. C. C. R. S9, and 2 Int. Com. Rep. 497; 4 I. C. C. R. 447, and 3 Int. Com. Rep. 417. But while a corporation engaged in interstate traffic in the states is subject to the act as to such traffic, the jurisdiction of the Commission is necessarily limited to the United States and does not extend to a question of alleged local discrimination in a foreign country as Canada. 10 I. C. C. R. 217.

114. The intention of interstate shipment is not sufficient. Transportation is not made interstate and subject to the jurisdiction of the Commission by the intention of the shipper that when the shipment is delivered by the carrier in the same state it shall be furthered transported by another carrier into another state, 1 I. C. C. R. 30, and 1. Inter. 607. Thus, fruit delivered to a consignee at Jersey City under rates made to Jersey City on traffic originating in New Jersey though destined for the State of New York, is not interstate traffic and the Commission had no authority over such freight. 2 I. C. C. R. 142, and 2 Int. Com. Rep. 84.

This was the rule applied by the Supreme Court of the

United States in taxation cases, where it was held that the intent to export is insufficient to exempt from the taxing power of the state. Coe v. Errol, 116 U. S. 517, 29 L. Ed. 715.

§ 115. All instrumentalities of shipment or carriage.— The term "railroad" as used in the act expressly includes all bridges and ferries used and operated in connection with any railroad. It was held in the first important case arising under the act (Kentucky & Indiana Bridge Co. v. L. & N. R. Co. 37 Fed. Rep. 567, Circuit Court, Justice Jackson, afterwards of the supreme bench), that this inclusion of bridges and ferries as subject to the act did not apply where a bridge. was not operated by the bridge company, but by railroad companies under contract with the bridge company. In such cases the court said the bridge company was not, either in law or fact, a common carrier within the scope and meaning of the section. The railroad company using the bridge, and not the bridge company, was the common carrier.

It was ruled by the commission in 1 I. C. C. R. 495, and 1 Int. Com. Rep. 775, that a railroad company chartered by the state of Tennessee, owning a short road wholly in that state, neither operating its road nor owning any rolling stock, but used and operated as a means of conducting interstate traffic in coal by the companies owning a connecting interstate road, was one of the instrumentalities of interstate commerce and subject to the act.

§ 116. Delivery, cartage, storage and demurrage charges. The inclusion in the requirement of the reasonableness of charges for the services rendered in receiving, delivering, storing and handling property did not impose any additional duty upon the carrier in regard to the delivery or storage of property, and the carrier is not obliged under this section to deliver or store otherwise than is required by its common law duty as a carrier. These services, including any charges for demurrage and other terminal expenses, which have been included under the general term of accessorial services, are subject to the act, whenever rendered in connection with interstate traffic, as to the reasonableness of the charges under this section. It also follows that such services must be rendered without discrimination as between individuals in