made by a connecting road because merely of its giving them in connection with its own rates by way of information to parties desiring to make through shipments. 1 I. C. C. R. 401, and 1 Int. Com. Rep. 703. In the absence of some agreement or understanding with a connecting line, by which the joint tariff rates is authorized, the carrier cannot lawfully publish or apply any other rates than those fixed for transportation between the points reached by its railroads, and it cannot publish the sum as a rate to points on the line of another carrier without its consent. Such a through rate is not a joint rate, for joint rates can be made only by concurrence or assent, and it is not a combination rate, for one of its component parts is not a subject for a separate charge. There must be lawful rates for each of the roads before there can be a lawful combination of rates.

It has been held that where the lines of several railroad corporations are conducted as a single system for the purpose of traffic between different points originating on either, and such corporations divide the profits of such business on a mileage basis, the several corporations as to such business are partners liable to third persons on the principles of the law of agency. See Lehigh Valley R. Co. v. Dupont, C. C. A. 2nd Circuit, 128 Fed. 840 (1904). But the fact that a railroad company owns stock and bonds of another railroad does not show partnership or agreement to run the roads of the latter on a common account. See Pennsylvania R. Co. v. Jones, 155 U. S. 333, 39 L. Ed. 176 (1894).

§ 315 (239). Published joint rates must be duly authorized. The only rates, which a carrier is authorized to publish, are its own local rates, that is, to points on its own line, and such through rates, as it is authorized by agreement with any comnecting carrier to combine with the rates of such carrier to points on its line. It cannot lawfully add to the duly established rates of another carrier any amount it pleases less than its own local rates, and publish and use them the same as a through rate to points on the line of another carrier without its consent. Such a through rate is not a joint rate, for joint rates can be made only by concurrence or assent, nor is it a combination rate, for one of its component parts has no legal existence or sanction as a through rate or through charge.

There must be lawful rates upon each of the roads before there can be a lawful combination of rates. This was ruled in a case, 7 I. C. C. R. 323, where the receivers of a road connecting with the New York, New Haven & Hartford railroad, published what purported to be a joint tariff of coal rates from the point on its road to a number of destinations reached by the New York & New Haven road, whereby the complainant company received its full local charges to said destinations from the junction points with defendant's road, and the defendant accepted the remainder, which was in each instance less than the established local rate from the place of shipment to the point of connection. The New York & New Haven road which carried coal to the same destinations by a longer route over its own rails thereby securing greater compensation than was afforded to it by coal coming to it from defendant's road, refused to unite in these rates published by the connecting carriers so unauthorized and its complaint was sustained. Commissioner Clemens dissented, saying that a carrier could make and publish through rates to points on a connecting line less than its regular locals, provided the rates on its own line were duly filed and published and were themselves just and reasonable and are not in themselves unjustly discriminative against local shippers.

§ 316. The commission's power of modification as to filing of tariffs. The proviso allowing the commission to allow changes in rates less than a thirty days' notice, and to modify the requirements of the section as to posting and filing tariffs, either in particular instances or by a general order, applicable to special instances, on good cause shown, was inserted in the amendment of 1906, because it was found that a literal enforcement of the "posting" provisions and of the thirty day notice in the matter of import and export rates and of special excur sion rates, would be impracticable. It was not clear that the excursion rates under section 22 were changes under this clause but the commission ruled that they were so subject. The commission made an exhaustive investigation upon the subject of import and export rates (see 10 I. C. C. Rep. 55), and there said that the practical difficulty arose from the fact that ocean rates from the ports are not under the control of the commission and

are constantly varying; that the rate varied from day to day, and sometimes from hour to hour. The same kind of merchandise may be carried in the same vessel, even for the same person, at different charges for the transportation. See the full discussion of this subject in the report of the commission for 1904, page 49. The purpose of this proviso was therefore to make the section adaptable to commercial conditions and environments. See annual report for 1905, page 8.

SECTION 7.

§ 317. Continuous carriage of freights from place of shipment to place of destination.

318. Judicial application of section.

317 (241). Continuous carriage of freights from place of shipment to place of destination.-SEC. 7. That it shall be unlawful for any common carrier subject to the provisions of this act to enter into any combination, contract, or agreement, expressed or implied, to prevent, by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination; and no break of bulk, stoppage or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of shipment to the place of destination, unless such break, stoppage, or interruption was made in good faith for some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade any of the provisions of this act.

§ 318 (242). Judicial application of section.-This section which has not been amended prohibiting any combination for preventing the continuity of traffic and providing for the continuous carriage of freights from the place of shipment to the place of destination, is to be considered in connection with the provision of section 3 concerning the interchange of traffic (supra, § 278), which has been construed as leaving the carriers free to make arrangements for through traffic among themselves. It was said by the commission in a case, 10 I. C. C. R. 188, that in view of this construction of section 3 of the act, it was not clear what the seventh section was intended to accomplish, and that possibly congress had in mind that railways might attempt to interrupt traffic at state lines, thereby depriving the traffic of the character of interstate business, and that the seventh section may have been intended to prevent this. The commission was clear that it added nothing to the third section in support of the claim made requiring the defendant carrier to deliver its cars to another carrier.

This section has also been cited in the cases wherein the courts have been asked to protect interstate carriers against interference by unlawful combinations. See chapter VI, supra

SECTION 8.

319. Liability of common carriers for damages.

320. Right of action based on the statute.

321. Plaintiff must show injury.

322. Allowance of attorney's fee as costs.

323. Limitation of actions.

324. Assignability of claims.

325. The jurisdiction of federal courts.

326. Jurisdiction of the federal courts in equity under the act. 327. Jurisdiction in equity for protection of interstate commerce.

§ 319 (243). Liability of common carrier for damages.Sec. 8. That in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case.

§ 320 (244). Right of action based on the statute.-Section 8 and succeeding section 9 which have not been amended, provide for private actions at law for damages by persons injured by violations of the provisions of the act, and are the only provisions of the act directly relating to such private actions in the courts. Their importance is very much qualified by the construction given to the remedial features of the act under the amendments of 1906 and 1910 by the recent decisions of the supreme court, see section 9, infra. Some of the cases cited under this section were decided prior to these amendments, and the judicial construction of the act following thereon. These sections were construed in Parsons v. C. & N. W. R. Co., 167 U. S. 447, 42 L. Ed. 231 (1897), affirming 11 C. C. A. 489, 63 Fed. 903, an action for alleged discrimination in shipping grain from Iowa to Chicago on account of differential rates granted to shippers from Nebraska. The court said that the cause of action was based entirely on the statute, and to enforce what was in its

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