APPORTIONMENT OF CARS FOR FRUIT "HOUSE RULE", "CROP-HOLDING

RULE, 41.

Apportionment based on the order in which shippers apply.

28. A rule of apportioning cars by giving the first car to the first shipper ordering and the second to the next shipper ordering, irrespective of the number of ears ordered, may, in times of great car shortage, be entirely just.-Richmond Elevator Co. v. Pere Marquette Rd. Co., (1905) 10 I. C. C. R. 629.

Arbitrary allotment to new and undeveloped mines.

29. Complaint was made that defendant's practice, in distributing coal cars to mine operators on its line in times of car shortage, of making an arbitrary allotment of cars to new and undeveloped mines, subjected other mine owners to undue prejudice. Held, that a reasonable arbitrary allotment in such case was not unlawful.-United States ex rel. Pitcairn Coal Co. v. Baltimore & O. R. Co., (1907) 154 Fed. Rep. 108.

Additional allotment to encourage prompt unloading.

30. Defendant, to encourage prompt discharge and return of its coal cars, put in force a rule by which all shippers or consignors, who during a month averaged not more than 5 day's detention of cars consigned to them at Curtis Bay, defendant's terminal at Baltimore at which coal was dumped from the cars into vessels for ocean transit, were granted a premium of 50 per cent additional to their ear supply for the next month. Held, that the administration of the rule did not result in unjust discrimination, in violation of the Act.-United States ex rel. Pitcairn Coal Co. v. Baltimore & O. R. Co., (1907) 154 Fed. Rep. 108.

Method of loading by shipper as ground for refusal to furnish cars.

31. Defendant refused to furnish complainants with coal cars to be loaded from wagons while at the same time it furnished cars to other shippers to be loaded by tipple. Defendant justified such refusal on the ground that loading by tipple was more rapid, that coal in market was very scarce, and that the public would thereby be benefited by an increase in the tonnage of coal shipped. Held, that the interests of the public were best subserved by affording all shippers an equal opportunity to ship.-Glade Coal Co. v. Baltimore & O. Rd. Co., (1904) 10 I. C. C. R. 226.

- When refusal justified.

32. During 1902, the strike in the anthracite coal region of Pennsylvania created an unprecedented demand for bituminous coal in eastern markets, and abnormally high prices prevailed. A serious car shortage ensued which led defendant to distribute its available coal cars among regular operators who loaded with tipples from their own sidings, and to deny cars to complainant, a druggist at Irwin, Pa., who attempted to mine surface coal which, under normal conditions, could not be mined at a profit. Complain ant's coal was loaded on sidings from Tipple loading in train loads wagons. facilitated the movement of coal 50 per cent over loading from wagons. Held, that defendant's refusal to furnish complainant with cars was calculated to relieve the situation, hasten the delivery of coal, and give the best service to the public; that such refusal was not unreasonable.-Thompson v. Pennsylvania Rd. Co., (1905) 10 Î. C. C. R. 640.

Distribution of private or individual cars, foreign-railway fuel cars, and system fuel cars-In general.

33. Prior to Jan. 1, 1906, mine operators on defendant's line who owned individual coal cars" were permitted in times of car shortage to receive such cars, and in addition thereto their pro rata share of the cars owned and controlled by defendant, which pro rata share was based upon the output capacity of the several mines. On said date defendant adopted a rule whereby its own fuel cars, foreign railroad fuel cars, and individual cars, assigned to specified mines for loading, were charged against the capacity of the mines at which they were placed, the difference between the rated capacity of the mine and the capacity of cars so placed for loading being treated as the rated capacity on which all other cars were prorated. The object of the adoption of this rule was to place all shippers on an absolute equality as near as possible, and yet not discriminate against individual car owners, or those to whom cars were especially consigned for fuel. On complaint by an owner of individual cars that the rule unjustly discriminated against it in favor of mines which did not own individual cars, held, that the rule worked no unjust discrimination against the owners of individual cars.Logan Coal Co. v. Pennsylvania R. Co., (1907) 154 Fed. Rep. 497.

34. Coal cars on defendant's line were of three classes. 1. System cars, which

included cars owned or controlled by defendant. 2. Foreign railway fuel cars, which included cars of foreign railroads specifically consigned to certain operators to be loaded by the operators with coal for the use of such foreign railroads in the operation of their roads. 3. Private cars, which included cars owned or leased by, or subject to the exclusive control of, particular operators. In making distribution of cars to the several mines along its line, defendant allotted the private cars to the owners or lessees thereof, and the foreign railway fuel cars to the coal companies to which such cars were consigned, the system cars being distributed among all the operators in proportion to the tonnage rating of their mines. Held, that this system of distribution resulted in unjust discrimination; that while the company owning or leasing private cars or receiving foreign railway fuel cars should be given full and exclusive use of such cars, it should not be given in addition thereto a division of the system cars except when its supply of private cars and of foreign railway fuel cars was less than its proportion of the total of available cars, including system cars, foreign railway fuel cars, and private cars.-Railroad Com. of Ohio v. Wheeling & L. E. Rd. Co., (1907) 12 I. C. C. R. 398.

Individual cars.

35. The duty of a railroad company to allot cars without unjust discrimination cannot be altered by the furnishing of special cars to the railroad company by one shipper, to be used exclusively in transportation for that shipper, whether the cars are sold by the shipper to the railroad company on the installment plan, or title to them is retained by the shipper. In the former case the railroad company would be devoting rolling stock which it owns, or in which it is interested, to the demands of one shipper to the exclusion of others similarly situated, which it may not do. In the latter case it would be renting its tracks or permitting them to be appropriated by one shipper to the detriment of others whom it should serve to the uttermost. In the stress of unusual business such special cars would have to be applied to the accommodation of all shippers alike.-United States v. Norfolk & W. Ry. Co., (1901) 109 Fed. Rep. 831.

36. Many coal companies operating on defendant's line in the Fairmont region in West Virginia had individual coal cars of their own. Defendant, in allotting coal cars to the different mines in times of

car shortage, first deducted from the whole available supply of cars in the district the individual cars, and after giving such cars to their owners, distributed its own available equipment among all the mines on the basis of a fixed percentage for each mine. The relator, a coal mining company which had no individual cars, filed petition for mandamus, alleging that this system of distribution produced unreasonable preference in favor of the owners of individual cars. Held, that relator and those in like situation were subjected to unreasonable disadvantage by getting only a percentage of defendant's free equipment, after having first eliminated therefrom the individual cars; that while relator was entitled to have allotted to it its percentage of all of the available car supply equipment, whether of general or individual cars, in no case were the owners of the individual cars or those entitled to them by contract to be deprived of their exclusive use, but that the individual cars assigned by the owner to be loaded at a specified mine should be charged against such mine as part of its pro rata distribution of cars.-United States ex rel. Pitcairn Coal Co. v. Baltimore & O. R. Co., (1907) 154 Fed. Rep. 108.

Consumers' individual cars.

37. Complaint was made that defendant's practice, in distributing coal cars to mine operators on its line in times of car shortage, of not considering consumers' individual cars in computing the percentages of the mines to which such cars were sent, subjected other mine owners to undue prejudice. Held, that it was not unlawful for defendant to refuse to of the mines to which they were sent.charge such cars against the percentages United States ex rel. Pitcairn Coal Co. v. Baltimore & O. K. Co., (1907) 154 Fed. Rep.

108.

Railway fuel cars.

38. Complaint was made that defendant's practice, in distributing coal cars to mine operators on its line in times of car shortage, of not considering defendant's fuel cars in computing the percentages of the mines to which such cars were sent, subjected other mine owners to undue prejudice. Held, that it was not unjust discrimination for defendant to refuse to charge such cars against the percentages of the mines to which they were sent.-United States ex rel. Pitcairn Coal Co. v. Baltimore & O. R. Co., (1907) 154 Fed. Rep. 108.

39. In addition to a just distribution

Gist of proceeding.

44. The gist of a proceeding under section 23 of the Act to compel a carrier to furnish cars or other facilities for transportation is an unjust discrimination in favor of one shipper over another similarly situated.-United States v. Norfolk & W. Ry. Co., (1901) 109 Fed. Rep. 831.

What relator must plead and prove. 45. In proceedings under section 23 of the Act to compel a carrier to furnish cars or other facilities, the relator is required both to plead and prove that the discrimination practiced by the carrier is unjust; otherwise the writ of mandamus will be denied.-United States v. Norfolk & W. Ry. Co., (1901) 109 Fed. Rep. 831.

Power of Court to fix percentage of cars to which each shipper is entitled. 46. A Federal court has the power in mandamus proceedings against the carrier to prevent unjust discrimination in the distribution of cars, to fix the percentage of cars to which each shipper is entitled. -West Virginia N. Rd. Co. v. United States, (1904) 134 Fed. Rep. 198, 204, 67 C. C. A. 220, affirming 125 Fed. Rep. 252. Power of Court to act on officers of carrier.

47. The jurisdiction extended to Federal courts by the Act to issue writs of mandamus against common carriers to prevent unjust discrimination in the distribution of cars implies the power to act on the officers of such carriers.-West Vir ginia N. Rd. Co. v. United States, (1904) 134 Fed. Rep. 198, 203, 67 C. C. A. 220, affirming 125 Fed. Rep. 252.

48. The president of a railroad company is a proper party to mandamus proceedings against the company to prevent unjust discrimination in the furnishing of cars where the acts of the company were done through that officer as its executive head.-West Virginia N. Rd. Co. v. United States, (1904) 134 Fed. Rep. 198, 203, 67 C. C. A. 220, affirming 125 Fed. Rep. 252. Pendency of another mandamus proceeding, when pleadable in abatement of second action.

49. The pendency of another mandamus proceeding in the Circuit Court of Appeals, to compel a railroad company to distribute coal cars without unjust discrimination, is pleadable in abatement of a second action in the Circuit Court between the same parties, and with the same matter in controversy.-United States v. Norfolk & W. Ry. Co. et al., (1902) 114 Fed. Rep. 682.

VIII. EVIDENCE AND BURDEN OF PROOF.

What complainant must show.

is insufficient.

50. The mere showing by complainant of a rule governing car distribution, and claim that such rule works discrimination, A further showing must be made of the actual effect of the rule during the time covered by the complaint. Richmond Elevator Co. v. Pere Marquette Rd. Co., (1905) 10 I. C. C. R. 629. 51. A rule of apportioning cars in times of great scarcity by giving the first car to the first shipper ordering and the second to the next shipper ordering, irrespective of the number of cars ordered, may be entirely just. Where, therefore, complainant alleges discrimination, he must show the actual effect of the rule

be determined.—

during the time covered by the complaint in order that the question of unfairness in distribution may Richmond Elevator Co. v. Pere Marquette Rd. Co., (1905) 10 I. C. C. R. 629. Burden of proof.

52. Where discrimination is charged, the burden of proof is upon complainant to the extent of showing the discrimination, and then upon the carrier to show that such discrimination was justified.— Richmond Elevator Co. v. Pere Marquette Rd. Co., (1905) 10 I. C. C. R. 629.

CAR SHORTAGE.

See "Embargo."

Delay in furnishing cars in times of, see "Cars," 6.

Distribution of cars during period of, see "Car distribution."'

Causes-Remedies proposed.

1. Subject of car shortage in Northwest, on Pacific coast, and in Southwest, investigated by Commission in December, 1906, and found on the whole to result not so much from actual shortage of cars as from congestion of traffic either at points

of destination or at terminals where freight was transferred from one line to another. The following remedies proposed: Restriction of reconsignment privilege, either by imposition of a reason able reconsignment charge or by limiting time allowed on reconsignment. The provision of separate terminals outside cities at which freight could be held pending determination by shipper as to destination. Limitation of free time allowed consignees for unloading. Proposed car clearing house this plan or some similar plan regarded with favor if carried out efficiently. Increase of per diem charges to effect more prompt return of cars by conneeting roads. Legislation governing the interchange of cars to prevent unreasonable appropriation by carriers of foreign equipment. Reciprocal car-demurrage law eonsidered impracticable, unless supplemented by some other rule or law under which the originating carrier would be insured of prompt return of cars delivered by it to connections.-Re Car Shortage, etc., (1907) 12 I. C. C. R. 561.

CARETAKERS.

See "Buggies."

Rule denying carload rate on, see "Rates," 990.

Atlanta, Ga., from Cincinnati, O. 1.

Rate of $1.07 per 100 pounds held unreasonable; that such rate ought not to exceed $1 per 100 pounds.-James & Mayer Buggy Co. v. Cincinnati, N. O. & T. P. Ry. Co. et al., (1891) 4 Í. C. C. R. 744, 3 I. C. R. 682; petition to enforce order of Commission denied, I. C. C. v. C. N. O. & T. P. Ry. Co., 56 Fed. Rep. 925. San Bernardino, Cal., from Chicago, Ill. 2. Rate on carriages, in carloads, of $2.96 per 100 pounds, held unlawful under section 4 of Act as compared with rate of $2.70 from same point through San Bernardino to Los Angeles.-San Bernardino Bd. of Trade v. Atchison, T. & S. F. Rd. Co. et al., (1890) 4 I. C. C. R. 104, 3 I. C. R. 138; petition to enforce order of Commission denied, I. C. C. v. Atchison, T. & S. F. Rd. Co., 50 Fed. Rep. 295. Social Circle, Ga., from Cincinnati, O.

3. Rate of $1.37 per 100 pounds, held unlawful under section 4 of Act as compared with rate of $1.07 from same point through Social Circle to Augusta, Ga.James & Mayer Buggy Co. v. Cincinnati, N. O. & T. P. Ry. Co. et al., (1891) 4 1. C.

CARGO RATES.

See "Rates," 1007-1010; "Discrimination, 29-31.

CARLOAD AND LESS THAN CARLOAD LOTS.

See Less than carload lots."

Carload rates, see Rates," 982, 1600. Denial of carload rate on less than carload lots combined into carload by forwarding agent, see "Rates,'' 987. Relation of rates as between, see "Rates," 700-713.

force order of Commission denied, I. C. C. v. Cincinnati, N. O. & T. P. Ry. Co., 56 Fed. Rep. 925; decree of Circuit Court reversed, 13 U. S. App. 730; 162 U. S. 184, 16 Sup. Ct. R. 700, 40 L. Ed. 935.