the Act to Regulate Commerce. Having elected to enter into the carriage of interstate freights and thus subjected itself to the control of the Commission, the carrier could not withdraw that control with respect to foreign traffic to certain points on its road and exclude other points. The court added: "When we speak of a through bill of lading, we are referring to the usual methods in use by connecting companies, and must not be understood to imply that the common control, management or arrangement might not be otherwise manifested." § 224. The proviso of the section. It is obvious that since the authoritative ruling of the Supreme Court as to the right of the carrier to judge for itself in the first instance of the controlling effect of competition in determining rates, the necessity for a resort to the discretionary powers of the Commission under the proviso has been very materially changed. Such applications were comparatively numerous, as will be seen from the Interstate Commerce Reports during the period when a different rule prevailed. It is unnecessary therefore to refer to the rulings of the Commission upon the specific applications for such relief made under a theory of the law afterwards declared erroneous. For a summary of the Commission's rulings, see annual report of 1892, pp. 18 to 21; 1893, p. 22; 1894, p. 18; 1895, p. 24. Petitions for relief were asked on other grounds than that of controlling competition. Thus the World's Fair at Chicago was held in 6 I. C. C. R. 323 and 6 I. C. C. R. 328, to be a case of an exceptional and special nature justifying relief from the operation of the section. The same ruling was made in the case of an application on account of crop failure and the neces sity of reduced rates for the transportation of food for the people and their animals. These cases however were exceptional and nearly all the applications for relief were on the ground of controlling competition. It was said by the Commission in its report of 1897 that the effect of the decisions of the Supreme Court was to eliminate the fourth section from the Act. § 225. The burden of proof.— Although this judicial construction of the term "under similar circumstances and conditions" has had a very profound effect upon the administration of the Act, it is not strictly correct to say that its effect was to eliminate the fourth section. It does put upon the carrier the burden of proving the existence of dissimilar circumstances and conditions for its justification when the fact of the greater charge for the shorter haul over the same line appears. In other cases of alleged undue preference or discrimination, the burden is obviously upon the party complaining. For illustrations of the Commission's application of the Supreme Court's construction of the section to special facts, see 7 I. C. C. R. 431, 454, 458; 8 I. C. C. R. 93, 110, 290, 316, 531; 9 I. C. C. R. 42, 534, 581. SECTION 5. Page § 226. 227. Pooling of freights and division of earnings forbidden...................... 266 266 .... rier..... 328. Controlling through routing to connections by initial car 229. Agreements not within the prohibition..... 267 268 230. The relation of the section to the Anti-Trust Law of 1890..... 269 231. Pooling as a defense to action of the carrier............. 270 $226. Pooling of freights and division of earnings forbidden.-SEC. 5. That it shall be unlawful for any common carrier subject to the provisions of this act to enter into any contract, agreement, or combination with any other common carrier or carriers for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof; and in any case of an agreement for the pooling of freights as aforesaid, each day of its continuance shall be deemed a separate offense. § 227. Construction of section. This section was more thoroughly discussed in Congress and in the public press before the enactment of the statute than any other, except the long and short haul provision of section 4, yet in view of its importance and it declaration of public policy, it has received comparatively little discussion in the courts or before the Commission. In 115 Fed Rep. 588, this section was construed by the court, Hammond, J., in the western district of Tennessee, in a charge to the grand jury. He said that the statute contemplated two methods of pooling, both of which were prohibited. First a physical pooling, which means a distribution by the carriers of property offered for transportation on different and competing railroads in the proportions and on the percentages previously agreed upon; and secondly, a money pooling, which is described best in the language of the statute, "to divide between them (different and competing railroads) the aggregate or net proceeds of the earnings of such railroads, or any portion thereof." The court in its charge adopted the definition of the word "pool" from the Century Dictionary, as: "It is a combination intended by concert of action to make or control changes in the market of rates; . . a combination of the interests of several otherwise competing parties, such as rival transportation lines, in which all take common grounds as regards the public, and distribute the profits of the business among themselves equally or according to special agreement. In this sense pooling is a system of reconciling conflicting interests and obviating competition by which the several competing parties or companies throw their revenues into one common fund, which is then divided or distributed among the members of the pool on a basis, percentage or proportion previously agreed upon or determined by arbitration." The agreement of the Southern Railway and Steamship Association provided for a division of territory between eastern and western lines, and also a system of fines and penalties among the members for violation of the association rules. The Commission said in 6 I. C. C. R. 195, that these fines and penalties are available as substitutes for the penalties which would be exacted under a regular pooling system, and that the arrangement was tantamount to a combination forbidden. by the section, and that the law had regard to the substance rather than to the form, and that whatever it prohibited from being done directly could not legally be done indirectly. § 228. Controlling through routing to connections by initial carrier. In the Southern California Fruit case, 9 I. C. C. R. 182, the Commission found that there was a tonnage pool of traffic as between the connecting carriers, and that the through routing was controlled so as to give specific percentages of traffic to their several connections, thereby fulfilling and giving effect to this unlawful arrangement, and that the suppression of the practice of allowing rebates was only an incidental result of and was not the primary and principal object of the defendant carriers in taking over to themselves the routing beyond their respective roads, but that the object was to give effect to this tonnage division. Suit was brought in the southern district of California to enforce the Commission's order to desist from this practice. Interstate Commerce Commission v. Southern Pacific Company et al, 123 Fed. Rep. 597. The Court held that the order was prima facie valid and enforcible, and the demurrer thereto was overruled. On final hearing in the same case this ruling was affirmed. 132 Fed. Rep. 829. The Court said that the word "freights" in the section meant the commodities carried, and not the compensation paid for the carriage, and that the practice of conditioning the through rate upon the reservation to the in itial carrier of the absolute power to route the shipments beyond its own lines for the declared purpose of enabling the initial carrier to control and maintain the rate so fixed by preventing competition, either direct or indirect, between their connecting carriers, created in effect a traffic pool within the meaning of section 5 of the Interstate Commerce Act. Pooling and rebates were both within the prohibition of the Act and that one could not be lawfully employed as preventive of the other. It was held also that an order of the Commission requiring the railroads joining in the agreement to desist from enforcing the rule and practice was not legislative in charac ter, because the rule was embodied in the joint through tariff published by the other carriers, where it is also promulgated to the public and enforced against all shippers. § 229. Agreements not within the prohibition.— An agreement for the division of through freights between the members of a trunk line is not within the prohibition of this section. Neither is an agreement for consultation for the promotion of reasonable rates. 6 I. C. C. R. 85. In this case the Commission held that the agreement of the transcontinental association was not within the prohibition of the section, as there was no provision for the actual pooling of freights or division of earnings between the parties, and it was not shown by the agreement itself or other evidence that the measures provided therein for fixing and maintaining rates constituted a contract, agreement or combination in violation of section 5, or that those measures if carried out in good faith for the purpose named, would lead indirectly to the same result as the actual pooling of freights and division of earnings prohibited by the Act. The operation and conduct of the Immigrant Bureau of the Western Passenger Association, whereunder the immigrant traffic was divided between the carriers in the agreed proportion based upon the proportion of the domestic passenger traffic done by each line, was not within the prohibition of the section. 10 I. C. C. R. 13. The Commission said that the section forbade a division of the aggregate or net proceeds of the earnings of such competing railroads, whether such earnings arise from freight or passenger business, but for some reason it did not provide specifically against a division of passengers |