riers' duty in the matter of car equipment, 2 I. C. C. R. 90 and 2 Int. Com. Rep. 67.

$ 190. Discrimination by carrier in its own favor.-As the carrier may discriminate in favor of itself in violation of section 2, when it is both a carrier and a shipper, so it may discriminate by an unjust preference against certain localities by the same means. See supra, section 2.

Thus in Commission v. Chesapeake & Ohio R. Co., supra, the contract by the carrier with another carrier for the delivery of the coal belonging to the first at a fixed price, was held to operate to give the purchaser an undue preference, in violation of section 3, and that the contract was therefore illegal and uninforcible and its further performance was enjoined. See supra, section 2.

191. Unjust preference in private cars.-The same principle was applied by the Commission to the use of private cars. Thus in 9 I. C. C. R. 1, the Commission said that the carrier could refuse to haul private cars at all, or to only haul those of a certain class and refuse to haul others of a wholly or substantially different class. In either case however there should be no avoidable partiality. The railroad should therefore exclude from its road all such cars, or else prescribe in its tariffs the rates and rules under which they would be transported. In this case the private car was that of a commercial salesman and was stocked with his samples of men's clothing and furnishings. The Commissions aid that in comparison with the private car service rendered for pleasure journeys and theatrical companies, the service was so very different and unusual as to justify a greater compensation, and would justify the carrier in refusing the car altogether.

As to tank cars see 4 I. C. C. R. 131 and 3 Int. Com. Rep. 162, where the Commission said that it was the carrier's duty to equip its road with the instrumentalities of carriage suitable to the traffic and furnish them alike to all, and its duty to furnish equipment could not be transferred to nor required of shippers. Where it accepted and used cars owned by shippers or others, in legal contemplation, it adopted them as its own for the purpose of rates and carriage. The carrier could not by any device, such as the payment of unreasonable rent, evade the duty of equal charges for equal service. See also

1 I. C. C. R. 503, 1 Int. Com. Rep. 722, 6 I. C. C. R. 295; 2 I. C. C. R. 9, 2 Int. Com. Rep. 67.

It was said by Judge Cooley in an early case, 1 I. C. C. R. 503 and 1 Int. Com. Rep. 722, that it is properly the business of a carrier to supply the rolling stock for the freights he offers or proposes to carry, and if the diversities and peculiarities of traffic are such that this is not always practicable, and consignors must supply it themselves, the carrier must not allow its own deficiencies in this particular to be the means of putting to a particular disadvantage those who make use in the traffic. of the facilities it supplies, citing Railroad Co. v. Pratt, 22 Wallace 123, 22 L. Ed. 827.

In 9 I. C. C. R. 182, the California Fruit case, the Commission said that while it must be conceded that the leasing of equipment, by carriers, as refrigerator cars, afforded opportunities for unfair advantage, that carriers are left by the law to procure equipment for business by lease as well as by purchase, and they are not prohibited from leasing from a shipper, nor are they compelled to lease from all shippers because they do from one.

The subject of private cars has been considered in connection with section 1 of the act (see supra, § 118), as to the charging in excess of reasonable rates for refrigeration in consequence of the use of such cars, and the matter of unjust discrimination between shippers has been considered in connection with section 2 of the act (supra, § 159). See also the extended discussion of this subject by the commission in its annual report for 1904, page 10. In this report the Commission. says that the use of private cars may be divided into two general classes, those in which the property of the owner of the car is transported and those in which the owner is not interested in the contents of the car. In the first class the shipper owns the car, and it is ordinarily only used for the carriage of the property of the owner, and in the second class the cars are usually owned by some private car company which constructs the car, keeps it in repair and leases it to the railroad company. The Commission recommends legislation requiring parties furnishing such cars to be subject to the Act, and that all the charges therefor paid subject to the control of the Commission, and that the compensation for the use of the

cars should also be subject to the jurisdiction of the Commission.

§ 192. Exclusive use of excursion or sleeping cars of one owner. The same principle applies in cases of special classes of cars, such as excursion and sleeping cars for passengers. A railroad company may acquire cars of any class, by construction, by purchase, or by contract for their use, and no one can compel a railroad company to select among these sev eral modes or to contract with all carriers. This principle was applied by the Commission in 3 I. C. C. R. 577 and 2 Int. Com. Rep. 792, in ruling that it was not unjustly preferential for a railroad company to refuse to haul the excursion cars of one car company, when it had a sufficient supply of excursion cars for its business from another company with whom it had contracted.

$193. Leasing of cars does not carry right of exclusive use by owner.—It is the duty of a carrier to equip its road with the means of transportation, and in the absence of exceptional conditions those means must be open impartially to all shippers of like traffic.

The Commission said in one of the numerous tank line cases, 5 I. C. C. R. 415, 4 Int. Com. Rep. 162, that ownership of a car rented to a carrier for a full consideration did not of itself entitle the owner to the exclusive use of such car, and if he could stipulate for such use, it must be upon such terms as shall not constitute an unjust discrimination against shippers of like traffic excluded from use of the car. Where a carrier pays mileage for a car which it employs in the service of the shipper, it is the carrier, and not the party or company from whom the car is rented who furnished the car to the shipper, and in such case there is no privity of contract between the car owner and the shipper. 6 I. C. C. R. 295.

§ 194. Stoppage in transit privileges. The privilege of stoppage in transit, including the right of milling grain in transit or of compressing cotton, which the Commission sustained as a legitimate privilege extended by carriers, must not be so extended as to operate as an undue preference to localities or unjust discrimination between individuals. See supra, section 2. The commission said in 9 I. C. C. R. 373, that if stop-over privileges are granted for any purpose, all the facts and cir

cumstances connected therewith should be clearly stated in the published tariff so that the public generally may enjoy the benefits. In this case the grain was shipped through St. Louis with stop-over privilege in East St. Louis for cleaning, sacking, or any other purpose, the shipment afterwards carrying the proportional or balance of through rate from East St. Louis. The Commission in this case, however, condemned the practice of shipping to East St. Louis on a local rate for the purpose of "trying the market," and then shipping on a reduced proportional rate to a southern point. See also 7 I. C. C. R. 240, where a similar practice was condemned.

In the lumber "Tap-line" case, 10 I. C. C. R. 193 (supra, § 163), the Commission said that it might be urged with force that practices of this kind were not sanctioned by the act, and that it had intimated that view in 1 I. C. C. R. 401, 1 Int. Com. Rep. 703. The practice had become so general that vast amounts had been invested in industrial plants upon the faith of the continuance of these privileges; and no doubt their allowance had cheapened the cost of transportation and probably of manufacture. The Commission concluded that when once the principle of milling in transit was admitted it could be applied to the manufacture of logs into lumber.

In 1 I. C. C. R. 401 and 1 Int. Com. Rep. 703, the Commission ruled that the privilege of stoppage in transit should not be extended so as to give to the merchants of a town the privilege of shipping their goods from the point of purchase to their own locality, and thence to the place where the goods may be sold by them at the same rate at which they would have been charged if there had been but one shipment from the point of purchase to the point of final delivery.

195. Interference by State Railroad Commission with proportional tariff rates.-The term "proportional tariffs" has been given to freight rates applying upon shipments with stoppage in transit privileges, that is, where the commodities shipped originate beyond the place of shipment, when their ultimate destination is beyond the point to which the proportional rates apply. In a recent Texas case, it appeared that the State Railroad Commission had issued an order that the Chicago, Rock Island & Texas railroad company should cancel all its so-called proportional tariffs on grain products from and

to points reached by its railway, whether local or in connection. with any other lines of railroad. A bill was filed by the owner of a grain elevator at Fort Worth engaged in the purchase of grain from the country north of Texas for the purpose of shipping by export from the Gulf ports, alleging that these proportional tariffs had been filed with the Interstate Commerce Commission and relate wholly to interstate traffic. The Court held that the order of the State Railroad Commission was illegal and void, that it had no jurisdiction or control over the proportional tariff rates in question; and a temporary injunction was issued against the enforcement of the order so far as the Commission was concerned; the Court declining to grant any injunction against the railroad company, on the ground that it was fully able to respond in damages for any failure to carry out its contract. Rosenbaum Grain Co. v. C. R. & T. R. Co., 130 Fed. Rep. 46. The order granting the temporary injunction was affirmed in Circuit Court of Appeals. 130 Fed. Rep.

110.

$196. Sidetracks and connections.-Another form of alleged preference has grown out of the practice of building sidings and spurs for connecting the main track of a railroad with industrial enterprises, such as mills, furnaces and elevators.

Some states, as South Dakota, (R. S. So. Dakota, 1899, section 253), and Nebraska, (Laws of 1887, Ch. 60,) have made a statutory provision for such connections. The statute of the latter state was construed as authorizing the State Railroad Commission to require the railroad company to grant the right to erect an elevator upon the right of way at a specified point on the same terms and conditions which it had already granted to other persons the right to erect elevators thereat. The Supreme Court ruled in Missouri Pacific Railway Co. v. Nebraska, 164 U. S. 403, 41 L. Ed. 489, that this Nebraska statute so construed as requiring a railroad company to grant to the petitioners a right to build and maintain a permanent structure on their right of way was a taking by the State of the private property without the owner's consent for private use, and was violative of due process of law and the Fourteenth Amendment. The court however limited its decision to this point, and said that the question of the power of the legislature to compel the railroad company to erect and maintain an elevator for