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violation of section 2, and without undue preference as be. tween localities or kinds of traffic under section 3.

It was said by the Supreme Court in the Grand Haven Cartage case, Commission v. Railroad Co. 167 U. S. 633, 1. c. 645, 42 L. Ed. 306, that while cartage was not in general a terminal expense and not in general assumed by the carrier, the transportation as a rule being ended when the freight was received at the warehouse, that it was a reasonable exercise of the Commission's power to direct in a general order that the railroad companies should thereafter regard cartage as one of the terminal charges to be published in their schedules, as required under section 6 (As to ruling of the commission thereunder, see infra, sec. 6, and note, and 7 I. C. C. R. 1. c. 591).

The Circuit Court of Appeals, in the same Grand Haven Cartage case, in their opinion, 21 C. C. A. 103 and 74 Fed. Rep. 803, which was approved by the Supreme Court, called attention to the distinction between the American and English customs of delivery of goods by carriers. Free cartage had been developed in the acts of the English railways from their competition with the carrier companies who used their lines, but that no such conditions had been developed in the growth of our American system of transportation, where it was very exceptional for railroads to do the carting required for delivering and collecting the goods. The service was essentially a distinct and separate service from rail carriage and purely accessorial.

The fact that a railroad company for many years has paid the charge for hauling freight from wharves to its station. does not bind it to continue that practice, and, if not bound by contract, it may stop doing so at any time. (1 I. C. C. R. 107, 1. Int. Com. Rep. 363).

It was ruled by the Commission, 8 I. C. C. R. 531, that the making of demurrage charges to commence before the expiraion of a reasonable time for loading or unloading was a violation of the provisions of this section.

As to storage charges, it was ruled by the Commission, 10 1. C. C. R. 352, that a railroad freight depot and a public warehouse are not used for the same purposes, and a charge for storage in a railroad depot may properly be made higher than a public warehouse charge, with the object of compelling the

expeditious removal of the freight, without violation of this

section.

As to storage of grain in elevators at points of stoppage under milling in transit privileges, see 10 I. C. C. R. 309.

$117. Carriage of live stock and perishable property.The character of the property may impose upon the carrier a distinct obligation in the matter of delivery. Thus in the case of live-stock, the company is under a legal obligation to provide suitable and necessary means and facilities for receiving live-stock offered for shipment, and this duty cannot be efficiently discharged, at least in a town or city, without the aid of enclosed yards in which the stock offered for shipment may be handled with convenience and safety and without inconvenience to the public. The railroad company therefore cannot, in addition to the customary and legitimate charges for the transportation, make a special charge for merely receiving and delivering stock in and through the yards provided for the purpose. Covington Stockyards Co. v. Keith, 139 U. S. 12S, 35 L. Ed. 73. The court in this case applied the rule laid down in Northern Pennsylvania Railroad Co. v. Commercial National Bank of Chicago, 123 U. S. 727, 31 L. Ed. 287, that the undertaking of a carrier to transport livestock differed in some respect from the responsibility assumed in the cartage of ordinary goods and included the delivery of such live-stock, the difference referred to growing out of the nature of the particular property transported.

A railroad carrier could make an exclusive contract with a stock yards for delivery of live-stock provided no charge was made for delivering when taken by consignee within reasonable time. Covington Stock Yards v. Keith, supra; Butchers & Drovers Stock Yards Co. v. L. & N. R. Co., 14 C. C. A. 290, 31 U. S. App. 252, 67 Fed. Rep. 35; 10 I. C. C. R. 173; Central Stock Yards v. L. & N. R. Co. 192 U. S. 568, 48 L. Ed. 565. See, infra, section 3. In the case of the Union Stock Yards of Chicago (Commission v. C. B. & Q. R. Co., 186 U. S. 320, 46 L. Ed. 1182), the Supreme Court affirmed the Circuit Court of Appeals (43 C. C. A. 209, and 103 Fed. Rep. 249 ), in refusing to enforce an order of the Commission holding unreasonable the charge of $2 for the delivery of the livestock to the stockyards. It seems that prior to 1894 no separate

terminal charge was made; and the through rate existing prior to 1894 was presumed to have provided compensation for services for making deliveries to the stockyards. The court said that the defendants had the right to divide their rates, and that the terminal charge must be separately considered as a distinct charge, and if it was reasonable as a separate charge, it did not follow that it should be reduced when the through rate was reduced. The court therefore affirmed the decree of the Court of Appeals without prejudice to the Commission's right thereafter to commence proceedings to correct any unreasonableness in the rate resulting from the additional terminal charge as to any territory. As to reasonable charges for extra hazard to carrier in live-stock shipments, see 10 I. C. C. R. 327.

A railroad company accustomed to deliver cars of cattle at stockyards off its line by transporting them over a line belonging to a stockyards company, for which it pays a fixed sum per car, was held in Walker v. Keenan, 19 C. C. A. 668 and 73 Fed. Rep. 755, by the Circuit Court of the United States, seventh circuit, to be under no obligation to consignees whose business was located at the stockyards to supply unloading facilities at its own stations in a different part of the state, and hence was not bound in default thereof to deliver at the stockyards without a separate charge. It could on posting schedules to that effect, as required by section 6 of the Interstate Commerce Act, make a charge for the freight to the station and a separate terminal charge of a fixed sum per car for delivery to the stockyards. (Reversing 64 Fed. Rep. 992.)

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§ 118. Refrigeration in transit. When carriers undertake the transportation of perishable traffic requiring refrigeration in transit, the providing of ice and facilities for its transportation in connection with the traffic are incidental to the transportation, and the charge therefor is a charge in connection with the service and subject to the requirement of reasonableness contained in this section. This was ruled by the Commission in a case of a shipment of strawberries and vegetables from Charleston to Jersey City. 6 I. C. C. R. 295. Adequate refrigeration was held to be an incident of seaworthiness under a bill of lading for ocean transportation of dressed beef. See Martin v. Southwark, 191 U. S. 1, 48 L. Ed. 65 (1904).

The Commission has considered the question of the reasonableness of charges for refrigerator car service in recent cases. Thus the charges for refrigerator cars furnished by the Armour car line for freight traffic from points in Michigan were considered in 10 I. C. C. R. 360, and the complaint of the Georgia fruit growers for alleged unreasonableness of charges. for refrigerator car service in the transportation of peaches from Georgia to the north was investigated in 10 I. C. C. R. 255. The Commission ruled in these cases that the carrier was bound to furnish such cars by reason of their common law duty as carriers, but that they could provide such cars by purchase or by lease, and if by lease the lease could be made with one company. The Commission ruled, however, that the charges for refrigeration, however furnished, should be published as other charges and adhered to as other charges for transportation, and in the transportation of the freight the carrier must either furnish the ice for a reasonable price, or permit the shipper to do so.

In the Michigan case the Commission found that the charges for the leased cars were excessive and that the carriers by making these exclusive contracts with the owners of the cars, had in effect imposed upon the shippers unreasonable charges for the transportation, in violation of section 1.

In the Georgia case the Commission considered the exceptional conditions of refrigerator car service, such as the necessity for rapid transit, the expense of handling, the uncertainty of the crop, absence of return load, etc. Under these circumstances it was found that the minimum load rate in weight of eighty-one cents per one hundred pounds was not unreasonable, but that the regulation whereby the rate was increased. to the valuation placed by the shipper was unreasonable, as the difference in valuation was too slight to justify the discrepency. It was also ruled that the arbitrary charge made by the New York, New Haven and Hartford railroad company for cars was unreasonable.

The Commission considered this subject in connection with the general subject of private freight cars in its annual report for 1904, and said that a practical monopoly had been created in the use of private cars for the movement of certain commodities, especially in the movement of freight, which had

enormously increased to the public the cost of transportation. Practically the icing charge, it was said, is a part of the shipper's cost of transportation, as every shipper must use the railroad and the refrigerator car, and the car must be iced. The Commission said that the result of existing conditions was good service and an adequate car supply, and an enormous increase in the refrigeration charges, of which instances were given. The Commission contends that these exclusive contracts, when they result in unreasonable icing charges, are unlawful and that the failure of the carriers to publish such charges is also a violation of the statute. On the contrary, it has been contended by the private car lines that icing is a private service over which the commission has no jurisdiction under the present law. The Commission, therefore, recommends that great good will be accomplished by legislation which will leave no room for such contentions, and that the only complete remedy that could be afforded would be by investing the Commission, or some other tribunal, with power to inquire whether these charges were reasonable, and to make them reasonable if found unreasonable. The Commission said this could be accomplished in two ways: First, either by making the common carriers responsible in the matter of this special equipment and refrigerator service, if they were not uow responsible; and second, by bringing the car line companies which provide this refrig eration for interstate shipments under the jurisdiction of the Act to Regulate Commerce and making their charges subject to the determination of the Commission.

As to the effect of the Elkins law of 1903, infra, § 310, in bringing private cars under the jurisdiction of the Commission, see Parties subject to the act, supra, § 106.

As to discrimination through charges for refrigeration, and other private car service, see infra, section 2.

$119. Charges must be reasonable and just. The last paragraph of the first section, providing that all charges for any service rendered in the transportation of persons and property, shall be reasonable and just, and prohibiting and declaring unlawful every unreasonable charge for such service, is only an affirmance of the common law In England, a common carrier was bound to carry for a reasonable remuneration as he was bound to carry for all such persons and property

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