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 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 the contract between the car owner and the shipper. 6 I. C. C. R. 295.

§ 258 (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 circumstances 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 prob

ably 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. See supra, §§ 216, 217.

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.

§ 259. Reconsignment charges. In the case of Southern Railway Company v. St. Louis Hay & Grain Co., 214 U. S. 297, 53 L. Ed. 1004 (1909), the supreme court reversed the circuit court of appeals of the 7th circuit in 153 Fed. 728, and the circuit court for the eastern district of Illinois, 149 Fed. 649, which had rendered judgment in favor of the company for the amount awarded by the commission and an attorney's fee for an alleged unreasonable and excessive charge for permitting a reconsignment of hay at East St. Louis. The company bought hay and had it shipped to East St. Louis and there unloaded and inspected, and reloaded for southern markets. Taking the reloaded cars therefrom involved the use of the cars for a time, and there was some expense for hauling the cars; and the railroad company charged from four to five dollars a car, equivalent to two cents per hundred pounds. The commission ruled that this was an unreasonable charge and allowed only half the amount, 11 I. C. C. R. 90, and for this the circuit court gave judgment which was affirmed by the court of appeals. The supreme court reversed this judgment and ordered the case remanded to the Commerce Commission for further investigation and report The court said the railroad was not limited to the actual cost of the privilege; that it had the right to make a reasonable profit. See also 11 I. C. C. R. 486, where the commission dismissed a somewhat similar complaint.

§ 260. Transit privileges.-Where a railroad allows the compression of cotton in transit at the nearest point, the commission

held, 12 I. C. C. R. 312, that it cannot vary that rule so as to give certain shippers the opportunity to avoid it and thereby receive an advantage which is not given to shippers generally.

As to compression of cotton in transit, see also 12 I. C. C. Rep. 312; 13 I. C. C. Rep. 187; and for adjustment of rates on compressed and uncompressed cotton, see 15 I. C. C. Rep. 222; 16 I. C. C. Rep. 131; 17 I. C. C. Rep. 12.

It was argued before the commission that it was without power to direct a carrier to grant a transit privilege. But the commission answered, 16 I. C. C. Rep. 232, that there could be no question as to the right and power of the commission to order the removal of an unjust discrimination and to prescribe such reasonable rates and regulations as would afford such removal; see also 15 I. C. C. Rep. 138.

The same principle was applied in 12 I. C. C. Rep. 210, where it was held that the privilege of stopping hogs in transit, shipped from western points to the east in order that they could be sorted and re-consigned under a through rate from point of origin, could not be enforced against carriers in favor of any specific point or shipper, in the absence of lawfully established tariffs making such privileges open to the public. While the commission has conceded what could be said in favor of milling and manufacturing in transit, it has also commented upon the irregular and discriminatory practices that are invited and possible under the practices. See 16 I. C. C. Rep. 232.

§ 261 (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 shipment by export from the

Gulf ports, alleging that these proportional local 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. 46. The order granting the temporary injunction was affirmed in circuit court of appeals. 130 Fed. Rep. 110.

8 262 (196). Sidetracks and connections.-Another form of leged 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.

The amendment of the act in 1906 has given the commission the power, upon the application of a shipper, or a branch railroad, to order the making of a switch connection. As to the rulings of the commission thereunder, see supra, § 158.

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 held in Missouri Pacific Railway Co. v. Nebraska, 164 U. S. 403, 41 L. Ed. 489 (1896), 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 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 Louisville Stockyard cases, Butchers & Drovers Stockyard Co. v. Railroad Co., 14 C. C. A. 290, 1. c. p. 297, 67 Fed. 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 accommodations 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 differenece 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. 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. 445.

This decision was approved and followed in Robinson v. B.