I. Interstate carrier:

a. Rule under later statutes, 982. b. Rule under earlier statutes, 985.

II. Intrastate carrier, 986.

I. Interstate carrier.

a. Rule under later statutes. The Interstate Commerce Act as amended by the Elkins Act and subsequent acts relating to rebating, requires carriers to file rates for interstate transportation with the Interstate Commerce Commission, and makes illegal any rebate, concession, or discrimination in respect to the transportation of property in interstate commerce. See 4 Fed. Stat. Anno. 2d ed. 406, 421). Under this legislation it has been held that a carrier must file a schedule showing the service, or allowance for the service, in order to make valid the performance of any service by the carrier incidental or accessory to interstate transportation by it as a common carrier, or to make valid an allowance or payment by the carrier to the shipper for such service when performed by the latter. Such a schedule appears to be necessary even with respect to an incidental or accessory service which the carrier is not bound as a common carrier to perform. Chicago & A. R. Co. v. Kirby (1912) 225 U. S. 155, 56 L. ed. 1033, 32 Sup. Ct. Rep. 648; Chicago & A. R. Co. v. United States (1907) 26 L.R.A. (N.S.) 551, 84 C. C. A. 324, 156 Fed. 558, affirming (1906) 148 Fed. 646, affirmed without opinion in (1909) 212 U. S. 563, 53 L. ed. 653, 29 Sup. Ct. Rep. 689; Chicago, St. P. M. & O. R. Co. v. United States (1908) 90 C. C. A. 211, 162 Fed. 835, affirming (1907) 151 Fed. 84; Clegg v. St. Louis & S. F. R. Co. (1913) 122 C. C. A. 273, 203 Fed. 971; Engemoen v. Chicago, St. P. M. & O. R. Co. (1914) 127 C. C. A. 426, 210 Fed. 896; Southern Cotton Oil Co. v. Central of Georgia R. Co. (1915) 142 C. C. A. 627, 228 Fed. 335, affirming (1913) 204 Fed. 476; Central Yellow Pine Asso. v.

Vicksburg, S. & P. R. Co. (1904) 10 Inters. Com. Rep. Fed. 193; Shiel v. Illinois C. R. Co. (1907) 12 Inters. Com. Rep. Fed. 210; Priebe v. Southern R. Co. (1917) 200 Ala. 81, 75 So. 409; Boston & M. R. Co. v. Great Falls Mfg. Co. (1920) N. H. 111 Atl. 691; Bergin v. Missouri, K. & T. R. Co. (1912) Tex. Civ. App. 150 S. W. 1184.

But in at least two cases a service has been held to be so far independent of the functions of a carrier as to dispense with the filing of a rate therefor. Sante Fe, P. & P. R. Co. v. Grant Bros. Constr. Co. (1913) 228 U. S. 177, 57 L. ed. 787, 33 Sup. Ct. Rep. 474, reversing (1910) 13 Ariz. 186, 108 Pac. 467; Re Railroad Teleg. Co. (1906) 12 Inters. Com. Rep. Fed. 10.

Expeditious transportation.

Special contracts for more rapid transportation than railroad companies as common carriers are bound to furnish have been held to be illegal, in the absence of regularly filed schedules for such transportation. Chicago & A. R. Co. v. Kirby (1912) 225 U. S. 155, 56 L. ed. 1033, 32 Sup. Ct. Rep. 648; Clegg v. St. Louis & S. F. R. Co. (1913) 122 C. C. A. 273, 203 Fed. 971; Engemoen v. Chicago, St. P. M. & O. R. Co. (1914) 127 C. C. A. 426, 210 Fed. 896.

In Chicago & A. R. Co. v. Kirby (U. S.) supra, a shipper of a carload of horses sought to recover damages for the breach of a special contract whereby the defendant carrier agreed to deliver the horses at a junction point in time to be carried by a fast stock train on another road. In holding that the contract was invalid and unenforceable, the court said: "The rates furnished the defendant in error were the regularly published rates. Those rates and schedules did not provide for an expedited service, nor for transportation by any particular train. Neither was Kirby required to pay any other or higher rate for the promised

special service, by which his car was to be carried so as to be attached to the fast stock special and carried by it to New York. . . The implied agreement of a common carrier is to carry safely and deliver at destination within a reasonable time. It is otherwise when the action is for a breach of a contract to carry within a particular time, or to make a particular connection, or to carry by a particular train. The railroad company, by its contract, became liable for the consequence of a failure to transport according to its terms. Evidence of diligence would not excuse. If the action had been for the common-law carrier liability, evidence that there had been no unreasonable delay would be no answer. But the company, by entering into an agreement for expediting the shipment, came under a liability different and more burdensome than would exist to a shipper who made no such special contract. For such a special service and higher responsibility it might clearly exact a higher rate. But to do so it must make and publish a rate open to all. This was not done. The shipper, it is also plain, was contracting for an advantage which was not extended to all others, both in the undertaking to carry so as to give him a particular expedited service, and a remedy for delay not due to negligence. An advantage accorded by special agreement which affects the value of the service to the shipper and its cost to the carrier should be published in the tariffs, and for a breach of such a contract, relief will be denied, because its allowance without such publication is a violation of the act. It is also illegal because it is an undue advantage in that it is not one open to all others in the same situation." That decision was followed in Clegg v. St. Louis & S. F. R. Co. (1913) 122 C. C. A. 273, 203 Fed. 971, wherein it was said: "The shipment in question was an interstate commerce shipment, and the parties could make no valid oral agreement with reference to expediting the shipment, unless regular rates had been established and published for special expediting, and no

claim was made that any such rate had been established and published."

So, in Engemoen v. Chicago, St. P. M. & O. R. Co. (Fed.) supra, the court said: "If the contract for transportation within the limited time was not authorized or provided for by the defendant's published tariffs, it was void. Chicago & A. R. Co. v. Kirby (U. S.) supra. But the invalidity did not appear on the face of the pleadings, and did not arise from mere legal presumption. It was a matter of defense, and rested in proofs submitted to the jury. Though, notwithstanding the verdict, the court thought the defense was made out, it could not be said as of law that the proofs at a second trial would be the same. Under such circumstances a new trial should have been granted, not a judgment for defendant contrary to the verdict. Slocum v. New York L. Ins. Co. (1913) 228 U. S. 364, 57 L. ed. 879, 33 Sup. Ct. Rep. 523."

Haulage, trackage, and ferriage.

It is illegal for a carrier to make an allowance or pay for haulage by a shipper to the line of the carrier unless the regularly filed schedule of tariffs of the carrier provides for such haulage. Central Yellow Pine Asso. v. Vicksburg, S. & P. R. Co. (1904) 10 Inters. Com. Rep. (Fed.) 193. In that case it was held that carriers could not make an allowance to lumber companies for hauling logs to their mills from points not on the carriers' lines, unless the allowance appeared in the tariff schedules of the carriers.

Likewise, it is illegal for a carrier to pay a shipper for the use of the latter's track, where no allowance for trackage appears in the carrier's tariff schedules. Chicago & A. R. Co. v. United States (1907) 26 L.R.A. (N.S.) 551, 84 C. C. A. 324, 156 Fed. 558, affirming (1906) 148 Fed. 646, affirmed without opinion in (1909) 212 U. S. 563, 53 L. ed. 653, 29 Sup. Ct. Rep. 689.

So, a contract for ferry service by a railroad company in connection with interstate transportation is not legal or enforceable unless it conforms to a provision for ferriage in the regularly published schedules of the railroad

A carrier is not permitted to pay a shipper for the wharfage or handling of freight unless the charges therefor are specified in a duly published schedule of tariffs. Southern Cotton Oil Co. v. Central of Georgia R. Co. (1915) 142 C. C. A. 627, 228 Fed. 335, affirming (1913) 204 Fed. 471.

And to be legal, an agreement by a carrier for the elevation of grain received by it for transportation must conform to a regularly filed tariff relating to grain elevation. Chicago, St. P. M. & O. R. Co. v. United States (1908) 90 C. C. A. 211, 162 Fed. 835, affirming (1907) 151 Fed. 84. In that case it appeared that the defendant carrier made an agreement to pay the cost of the elevation of grain received by it for shipment to a lake point, and in carrying out the agreement paid to the shipper one half of a cent per bushel on a consignment of grain. Since the absorption of the cost of elevation did not appear in the schedules of the carrier filed with the Interstate Commerce Commission, it was held that a concession was made to the shipper "whereby the property was transported at a less rate than that named in the tariffs scheduled," and that the concession rendered the carrier liable to criminal prosecution under the Elkins Act. With respect to the contention that the carrier was not under a duty to pay elevation charges, the court said: "We are unable to see how the fact that no duty was imposed upon the railway company under its contract with the shipper to pay elevation charges incident to transferring the grain from its car to the vessels on the lake can be of any avail to the defendants in this case. The contrary seems true to us. The fact that no such duty rested on the railway company seems to us to make against, rather than in favor of, defendants' contentions. If the railway company had no duty in that particular, inasmuch as the elevation service was a necessary part of the through transportation, the act done by it was a

voluntary contribution of something of value to the shipper, which in fact reduced his outlay for transportation over the defendants' line and thereby facilitated the defendants in the accomplishment of their avowed object to secure a reasonable share of that trade. The fact that defendant railway company treated all shippers of the same class of property for the same destination alike might be important and conclusive on a charge of discrimination; but, when the charge involved is granting a rebate or concession from a fixed tariff or rate, in violation of a statute in clear terms making that particular act an offense, we are unable to appreciate the pertinency of evidence disclosing no violation of another and different provision of the Interstate Commerce Law." Special privilege in transit.

A shipper is not entitled to a milling privilege in transit for a shipment to a particular point, if the regularly filed tariffs of the carrier do not specify the privilege for a shipment to that point. Priebe v. Southern R. Co. (1917) 200 Ala. 81, 75 So. 409.

Similarly, the privilege of stopping hogs in transit in order that they may be sorted and reconsigned to favorable markets under the through rates from the point of origin cannot be enforced against a carrier in favor of any single point or shipper, in the absence of a lawfully established tariff making the privilege open to the public at large. Shiel v. Illinois C. R. Co. (1907) 12 Inters. Com. Rep. Fed. 210.

So, it has been held that a contract by a railroad company's agent, whereby a shipper of syrup was given the privilege of stopping the car at an intermediate point to have the opportunity to unload and sell a part of the shipment, was invalid though based on a consideration, where the railroad company's schedules of rates did not provide for such a privilege, although the schedules for other commodities did provide for stop-over privileges, since no other shipper of syrup could have demanded an extension of that privilege to the shipment of his commodities. Bergin v. Missouri, K. & T. R. Co. (1912) - Tex. Civ. App.

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S. W. 1184, wherein the court said: "Such a service requires that the car containing the freight should be taken out of the train in which it had been carried, and switched to a position where it would not interfere with the regular traffic. It also involves the detention of a car as a place for storing the goods during that time, thereby depriving the carrier of its use in the course of its business; and after the time for the stop-over had expired, the car would again have to be incorporated into another train and hauled to its destination at the same rate. If a carrier should grant this privilege to one shipper and refuse it to another, it would be guilty of an unjust discrimination."

The Mississippi supreme court, however, said in Laurel Cotton Mills v. Gulf & S. I. R. Co. (1904) 84 Miss. 339, 66 L.R.A. 453, 37 So. 134, that it would not presume that a contract between a carrier and a shipper with reference to milling in transit, which was valid in itself, violated the filed schedule, in the absence of anything in the contract or pleading to indicate that it did.

Transportation in connection with railroad construction work.

In Sante Fe, P. & P. R. Co. v. Grant Bros. Constr. Co. (1913) 228 U. S. 177, 57 L. ed. 787, 33 Sup. Ct. Rep. 474, reversing (1910) 13 Ariz. 186, 108 Pac. 467, a contract was held to be valid which exempted a carrier from liability for loss or damage to the property of a construction company to be transported by the carrier for construction work on its road. In answering the objection to the validity of the contract, that the rates provided were lower than any appearing in the published schedules of the carrier, the court said: "It is clear that in dealing with transportation of this character over its own road, in connection with construction or improvement, a railroad company is not acting in the performance of its duty as a common carrier, and the arrangement for free or reduced-rate carriage for the necessary materials and men used in the work, when it is a part of the contract, entered into in good faith and

In the case of Re Railroad Teleg. Co. (1906) 12 Inters. Com. Rep. Fed. 10, the court held that it was legal for a railroad company to contract for the carriage of officials, employees, or property of a telegraph company at rates below those of its regularly published schedules, where the carriage facilitated the construction of tele

graph lines which were along the railroad company's right of way and were necessary for the operation of its trains. It was held, however, that a contract of a railroad company for a similar service to facilitate the construction of telegraph lines along the right of way of other railroad companies was illegal, unless it was in conformity with a regularly published tariff.

b. Rule under earlier statutes. Before the Elkins Act of February 19, 1903, a carrier engaged in interstate commerce was permitted to furnish free cartage or other accessory service, or pay the shipper or consignee for such service, without giving notice of the service furnished or paid for in its schedule of tariffs. Interstate Commerce Commission v. Detroit, G. H. & M. R. Co. (1897) 167 U. S. 633, 42 L. ed. 306, 17 Sup. Ct. Rep. 986, affirming (1896) 21 C. C. A. 103, 43 U. S. App. 308, 74 Fed. 803; Mitchell Coal & Coke Co. v. Pennsylvania R. Co. (1913) 230 U. S. 247, 57 L. ed. 1472, 33 Sup. Ct. Rep. 916 (decision as to transportation prior to 1903).

In the case first cited it was held that a carrier was not bound to show in its schedules that free cartage was furnished to shippers and consignees in a particular city. The court stated that cartage was not ordinarily to be considered a terminal expense, and that a rule or practice of furnishing free cartage was not "a rule or regulation" which in any way "changes,

affects, or determines" any part of the aggregate of the rates, fares, and charges within the meaning of the Interstate Commerce Act. It was suggested, however, that it might be within the power of the Interstate Commerce Commission to issue a general order directing carriers, in their schedules, to include as a terminal facility any free cartage.

In Mitchell Coal & Coke Co. v. Pennsylvania R. Co. (U. S.) supra, a shipper sought to recover damages sustained by reason of rebates given by the defendant carrier to competing shippers in the form of payments for the haulage by the latter of coal and coke in their own cars from their mines to the road of the defendant. In holding that under the earlier provisions of the Commerce Act the validity of a payment by a carrier for such a service depended on whether the payment was a reasonable one under the circumstances, the court said: "Under the Elkins Act of February 19, 1903, 32 Stat. at L. 847, chap. 708, Comp. Stat. § 8597, 4 Fed. Stat. Anno. 2d ed. p. 549, and under the Hepburn Act of June 29, 1906, 34 Stat. at L. 584, chap. 3591, Comp. Stat. § 8563, 4 Fed. Stat. Anno. 2d ed. p. 337, it has been held that the carrier must give notice in the tariff of free cartage, lighterage, ferriage, or any other accessorial service that will be furnished, as well as of any allowance that will be made to shippers who furnish transportation facilities or service. But the present case is not to be governed by those statutes, but by the law of force between 1897 and 1901, when the transactions complained of took place. At that time the Commerce Act required the carrier to give notice of every charge it would make against the shipper. But the statute was not construed to compel the railroad to publish what free cartage or accessorial service it would furnish (Interstate Commerce Commission v. Detroit, G. H. & M. R. Co. 167 U. S. 646, 42 L. ed. 310, 17 Sup. Ct. Rep. 986), or what sums it would pay shippers for transportation service rendered by them to the carrier. Failure to publish these items could, however, easily lead to

unjust discrimination; and the court, in the case last cited, held that the Commission might, by a general order, require such matters to be published in the rate sheet. We are not cited to any such order for the period now under investigation, and, so far as we can discover, by the general and public custom of all carriers, acquiesced in by the Commission, the tariffs at that time uniformly omitted any statement of allowances that would be paid to the shipper for the use of private cars, or private tracks, or for transportation service in switching, hauling, lightering, or other work in cluded in the rate, but actually performed by the shipper. But although the statute then of force was not construed to require the publication of allowances, their payment was lawful only when supported by a consideration. To pay shippers for doing their own work would have been a mere gratuity, and if, here, the carrier was not bound to haul from the mine, it had no more right to pay these companies for bringing their coal over the spur track to the junction than it would have had to pay a merchant for hauling his goods in a wagon to the railroad depot."

II. Intrastate carrier.

In Mollohan v. Atchison, T. & S. F. R. Co. (1916) 97 Kan. 51, L.R.A.1918A, 175, P.U.R.1916C, 537, 154 Pac. 248, with respect to an intrastate shipment of cattle, it was held that a contract was illegal which gave to a shipper the right to stoppage at a given point to test the market, since the schedules of the carrier regularly filed with the state public utilities commission did not provide for such a privilege at that point.

In the reported case (EX PARTE ALABAMA G. S. R. Co. ante, 978) it appeared, as is shown by the opinion. of the court of appeals in (1921) Ala. App., 90 So. 503, that a carrier made a contract relating to the parking of certain cars of a showman for forty-five days on the tracks of the carrier. The supreme court, in reversing a judgment of the court of