the use of the public, or to compel it to permit all persons to enjoy equal facilities of access from their own lands to its tracks for the purpose of shipping or receiving grain or other freight was not involved, as the order of the Commission was not limited to the temporary use of the tracks nor to the conduct of the business of the railway company.

In Illinois, railroads were required by the State constitution, article 13, section 5, to permit connections to be made to their tracks so that any consignee of grain in bulk and any public warehouse, coal bank or coal yard may be reached by the cars on the railroad. In Chicago, etc., R. Co. v. Suffern, 129 Ill. 274, it was held that a railroad company was not justified in refusing to ship coal over its own railroad off of a switch road to the shipper's mine simply because the shipper also shipped on another carrier's line.

The question was considered in one of the LouisvilleStockyard cases, Butchers & Drovers Stockyard Co. v. Railroad Co., 14 C. C. A. 290, 1. c. p. 297, 67 Fed. Rep. 35, whether it was a discrimination which could be controlled or restrained by the courts for a railroad company to refuse to furnish a sidetrack or not to its customers and furnish such accomodations to another similarly situated. The Court said in an opinion by Justice Taft that this question was very difficult, both at common law and under the statute. It was held however not to be involved in the case before the Court, as there was such a difference between the business of the complainant and that of the other abutters upon the spur track as to make the refusal of the company to grant the sidetrack to the complainant entirely reasonable, this difference consisting of the fact that the complainants' traffic was live stock and that of the other abutters dead freight, making the conditions of deliveries and shipments entirely distinct.

In Harp v. C. O. & G. R. Co., (Ark.) 118 Fed. Rep. 169, the court held that a railroad was under no obligation to build a spur track to coal mines for private benefit of the owner, nor was it liable for damages for unlawful discrimination because of refusal to build such track, although it had assisted and permitted other spurs to be built. The judgment was affirmed in the Circuit Court of Appeals, but on another ground. 61 C. C. A. 405, 125 Fed. Rep. 445.

This decision was approved and followed in Robinson v. B. & O. Railroad Co., 129 Fed. Rep. 753, where it was held that the carrier in his right to make reasonable regulations for the delivery of freight was not compelled to receive coal at a siding where merchandise other than coal was received, merely because the place was more acceptable to a shipper, when it had designated the siding for receiving coal and the siding was not an unreasonable place.

In another stockyards case, that of the Interstate Stockyards Co. v. Railroad Company, 99 Fed. Rep. 473, the Court laid down the general proposition that a "common carrier of interstate freight cannot lawfully deny switch connection and service to one person, place or locality, or kind of traffic, which it affords to others similarly situated." This question however must be construed in connection with the special facts of the case, the alleged discrimination being by a city belt line which was required under the city ordinance and State statute to grant switch connections to all persons and to render service in respect to all freight upon equal and impartial terms. This road was enjoined from discontinuing the receipt of live stock from sidings which had been theretofore constructed and maintained.

Assuming that there can be no unjust preference in the refusal of switch connections unless the circumstances and conditions are similar, it is difficult to see how in any case the Court can compel a carrier to construct and maintain such a siding for private use in its own right of way at its own expense. Nebraska v. Missouri Pacific Ry. Co., supra. There seems to be no case where either the Commission or the Court has enforced the construction and maintenance of such switch connections. See 7 I. C. C. R. 194, where such an application was unsuccessfully made. The carrier is not bound in every instance to furnish under legal compulsion the same terminal facilities for all descriptions of traffic. It is sufficient if reasonable provision is made in this regard, and what is reasonable in a given instance depends largely upon the conditions and surroundings. of a particular locality. See 9 I. C. C. R. 61.

§ 197. Undue preference in denying shippers the choice of route.— Another form of undue preference condemned by the Commission is the practice of initial carriers in joint con

tinuous routes of reserving to themselves the exclusive control of the routing of freight, and denying to shippers any choice or control in the selection as between different established routes, the route being determined by the carrier's agents according as they may desire to distribute the shippers business among one another from time to time or for any reason whatever. The Commission ruled in the California Fruit case, 9 I. C. C. R. 182, that this practice was in violation of the statute, subjecting the shippers to undue and unreasonable prejudice and giving the carriers undue and unreasonable preference and advantage. See also 3 I. C. C. R. 658, 3 Int. Com. Rep.

33.

This subject was brought before the United States Circuit. Court for the southern district of California in Commission v. Southern Pacific Company et al, 123 Fed. Rep. 597, in a suit to enforce the order of the Commission requiring the railroads to desist from the enforcement of the rule reserving to the initial carrier the unqualified right of routing beyond its own terminal all shipments made under an established through rate. The Court said that as the Commission found that the rule and the practice thereunder worked an undue and unreasonable prejudice to certain shippers of citrus fruits, it followed that the orders of the Commission forbidding the enforcement and maintenance of the rule were lawful orders. The Court in this case cited and applied the decision of the Supreme Court construing this section in the Chattanooga Rate case, 181 U. S. 1, supra. On final hearing of this case, 132 Fed. Rep. 829 (Sept. 1904), the arrangement between the initial and connecting carriers was held to constitute a "traffic pool" violative of section 5. See infra, section 5.

§ 198. Undue preference in arbitrary division of territory. Another practice condemned by the Commission as violative of the rights of shippers in creating undue preference was the arbitrary division of territory under the agreement of the Southern Railway and Steamship Association, 6 I. C. C. R. 195, whereunder the Commission found that the rates on traffic of certain classes were made higher from Chicago and Cincinnati to southern territory than they otherwise would be, for the purpose of securing to the lines from the northeastern cities, transportation of that traffic from the territory set apart

to them under the agreement, and that this raised the presumption of the unreasonableness of the rates in such territory. The Commission found that this division of territory was without warrant in law and to have been made for the benefit of carriers without regard to the interests of shippers in the territory, to whom it was in effect a denial of the privilege of shipping their goods to market by the line or route they may prefer. See also 8 I. C. C. R. 185, wherein the Commission made a report on the export rates from points east and west of the Mississippi river, and said that it was neither sound in principle or equitable in practice for railroad lines to create artificial differential in the rates, whereby the product of one section is assigned to one market and the product of another section assigned to another market.

$199. Rate wars and undue preferences.-The relation of rate wars to the reasonableness of rates was considered under section 1, supra, § 141, 2 I. C. C. R. 231 and 2 Int. Com. Rep. 137. In the rate war prevailing in the southern freight traffic in June and July, 1894, great disparities in rates were suddenly produced at intermediate points by the large reduction in rates to Knoxville at the commencement of this war. See 6 I. C. C. R. 632. The Commission made an inquiry of its own motion. 7 I. C. C. R. 177; see also Eighth Annual Report of the Commission, 1894, pp. 20 to 24. The Commission held that the maintenance of the usual rates to intervening points during the period of such reduced rates to the terminal points was an unwarranted discrimination and entitled the shippers from intermediate points to reparation for the excess paid by them during such rate war. On the subject of passenger rates and rate wars, see also 2 I. C. C. R. 543 and 2 Int. Com. Rep. 340.

These decisions of the Commission were rendered especially in view of the long and short haul requirement of section 4, and prior to the ruling of the Supreme Court that railroad competition created a dissimilarity of conditions within the meaning of the section. The ruling however of the Supreme Court that the competitive rate must be remunerative (see supra, § 175), would of itself prevent the extreme reductions condemned by the Commission.

As to undue preference and discrimination in passenger rates, see supra, section 2.

As to applications for injunctions in rate wars by carriers and shippers, see annual report of 1896, page 43.

For account of "rate war" injunctions filed by a competing carrier, a trust company representing security holders of the carrier, and a complaining shipper during rate war between Seaboard Air Line and the Southern Railway Company in 1896, see annual report of Commission for 1896, page 43.

$200. Discrimination in kinds of traffic.-The first paragraph of section 3 also prohibits any undue or unreasonable preference or advantage of any particular description of traffic in any respect whatever. It was held in the Oregon Short Line & U. N. R. Co. v. Northern Pacific Railway Co., ninth circuit, 9 C. C. A. 409, 61 Fed. Rep. 158, that this first paragraph of the third section forbidding discriminations against any locality or description of traffic is for the protection of the locality or traffic itself, and cannot be invoked by a carrier against a connecting carrier for alleged discriminations in the matter of requiring prepayment of freight and car mileage. The Court said that it was not competent for a railroad company to appropriate the grievances of a citizen or locality under section 3 and complain on account of it.

Goods offered for shipment from a given point must be carried for the established rate from such point, in the absence of a through routing, regardless of the point where the goods originated. Bigbee Packet Co. v. M. & O. R. Co., (So. Dist. of Ala.) 60 Fed. Rep. 545; 4 I. C. C. R. 611, 3 Int. Com. Rep. 515. Discriminations against kinds of traffic are sometimes involved with discriminations against localities where the industries discriminated against are established. This is illustrated in the litigation between the packing houses of Chicago and those which have been established in the stock raising sections of the west, where the industries located at Chicago are thus directly concerned in keeping down the rates on live stock to that point as compared with the rates on packing house products. See 4 I. C. C. R. 158, 3 Int. Com. Rep. 233 where the differential between rates on live stock and packing house products from the Missouri river to the city of Chicago, was held discriminated against the packing house industries located in Chicago. The same discrimination as to the same. kinds of traffic was thoroughly considered in the case of the