be regarded simply as a cloak or device to effect unlawful results. The question, whether allowances from the published rate made by the roads west of the Mississippi to logging roads or "tap lines," as they are called, owned or controlled by the lumber mills, constituted departures from published rates in violation of the Act to Regulate Commerce, was presented for decision by the Commission in the case of The Central Yellow Pine Association v. The Vicksburg, Shreveport & Pacific Railroad, 23 and it was held, that the published rate must be strictly observed; that the defendants were not authorized under the law "to grant a division of the rate to the owner of a lumber mill as compensation to him for the cost of bringing his logs to the mill by steam railroad, horse railroad, wagon, or any other means of conveyance;" and that a common carrier subject to the provisions of the Act to Regulate Commerce can "allow a division of rates only to another common carrier which, participating in the particular traffic to which the rate is applied, is also subject to those provisions." 195. Plant facilities. If the railway performs no part of the through haul, as even the tap lines do, it is merely an integral part of the industry, doing the shipper's work exclusively, and no payment may lawfully be made. This seems clear, for a carrier cannot pay the cost of carriage from a point off its line to a point on its line either for the purpose of getting business that otherwise it would not get, or for the sake of developing new territory. The Commission has long been wrestling with the problem of whether in a given case there is a tap line or a plant facility.24 Following 23 10 I. C. C. 193. A water carrier, owned by shipper is not entitled to through routes and joint rates, though incorporated as a common carrier. Gulf Coast Navigation Co. v. K. C. S. Ry., 19 I. C. C. R. 544. And divisions with a tap line which does nothing but transport lumber of its owners will be forbidden. Star Grain & L. Co. v. Atchison, T. & S. F. Ry., 17 I. C. C. 338. 24 Storega C. & C. Co. v. Louisville & N. R. R., 23 I. C. C. 17. the tests suggested above, it has held certain tap lines not to be common carriers at all, but merely plant facilities. 25 It has insisted recently that incorporation by an industry of a railroad company to operate its plant tracks does not give carriers a legal basis for relieving the industry of the cost of operating that part of its plant facilities, by division out of the rates of the trunk line carriers.26 In other words, all allowances to plant facilities it tends to regard as illegitimate.27 It makes no difference what form those take, a plant facility cannot have allowance for such service. 28 Thus the Commission has held payment of allowances or division to a boat line, which is a mere plant facility, to be an unlawful rebate. 29 And, of course, it will not permit a division of a through rate with such services, used simply as a device to evade the law. 30 And if a tap line is found to be a plant facility of its proprietary lumber company, it will support a cancellation of joint rates previously in force.31 It should be noted that the Commission cannot compel a trunk line to make allowance to an industry under section 15 for services rendered by industrial lines. 32 Indeed, if it is a mere plant facility the carrier will not be permitted to make any allowance for the use of a switch. 33 $196. Line haul. Ever since the introduction of the industrial spur, it has been the common practice in this country, and the law taken more or less for granted, that the transportation of carloads under the through rate began with picking up the loaded car on the spur track of the shipper, and ended 25 Tap Line Case, 23 I. C. C. R. 277. "Mfgrs. Ry. Co. v. St. L., I. M. & S. Ry., 28 I. C. C. 93. "Star Grain & L. Co. v. A., T. & S. F. Ry., 17 I. C. C. 338. 28 Crane Iron Works v. Central R. R. of N. J., 17 I. C. C. 514. "Colonial Salt Co. v. M. I. & I. L., 23 I. C. R. C. 358. 30 Gottron Bros. v. G. & W. R. R., 28 I. C. C. 38. 31 Joint Rates with Washington Western Ry., 27 I. C. C. 630. 32 Absorption of Switching Charges at St. Louis, 32 I. C. C. 100. 33 Re Muncie & W. R. R., 30 I. C. C. 434. when spotted at the point designated for unloading on the spur track of the consignee. Such was until recently clearly enough the position of the Commission, and the courts have always upheld rulings based upon this theory. The Los Angeles Switching cases 34 in which the Supreme Court handed down the latest opinion on these points is ample evidence of this attitude. In the meantime in the Clearfield Coal District cases, 35 the Supreme Court had held that switching movements over industrial tracks may well be part of transportation, if the rate applies to the district, and that consequently making an allowance to the coal companies for performing this part of the transportation was not discrimination in the eye of the Act. The determination that the service performed in switching cars to and from the line is a service performed by the shipper in connection with transportation, depends on two questions. First, what are the limits of the line carrier's transportation service? If the basis upon which the railroad is professing to serve extends up to the door of the proprietary works, when a shipment starts to move from that point, it may be said that the carrier's obligation as such has begun. Second, is the line carrier permitting the shipper to perform a part of this service that otherwise it would be obliged to do? If so, a fair allowance may be made in accordance with section 15 of the Act. § 197. Intermingled service. If any summary of the situation as at present existing should be attempted, it must be realized that, in the way 34 Interstate Commerce Commission v. Atchison, T. & S. F. Ry., 234 U. S. 294, 34 Sup. Ct. 291. 35 Mitchell Coal Co. v. Pa. Ry., 230 U. S. 247, 33 Sup. Ct. 916. The sweeping ruling in the Industrial Railways Case, 29 I. C. C. 212, against allowances for switching was handed down previously to the Supreme Court cases governing this matter cited above; and the modifica tion thereof in 32 I. C. C. 129, is to be noted. Indeed since these decisions the Commission has entered a final order in the Tap Line Cases, 31 I. C. C. 490, fixing allowances for all switching services upon a duly graduated scale proportional to the service rendered; see also the Birmingham So. Ry. Case, 32 I. C. C. 110. the Commission has latterly been inclined to view the problem of the industrial railways, the services rendered by industrial railways to their proprietary industries may be any or all of three very different kinds: 1. The industrial railway may be a true common carrier, and thus be in the position of the initial or ultimate carrier as to the shipper industry; but unless the industrial railway is a true common carrier no division of a through rate jointly established can be made. 2. The shipper owning a tap line with the permission of the carrier may perform part of the service that it would otherwise be the line carrier's duty to transport. 3. The character of the trackage may be exclusively that of a plant facility; it may be merely part of the appliances and equipment of the plant, engaged in carrying the raw material in process of manufacture from building to building, or from the plant to the line carrier, thus performing services that the carrier is not undertaking to do, any more than if the carriage were by dray.36 Of course in the matter of allowances or divisions, if so large an amount is paid as to amount to a rebate, or if allowances are made to some and not to others so that there is a discrimination, the Commission theoretically has ample power. Where the line carrier makes only proper payments to these industrial railways for services rendered, no objection may be interposed, provided the service is one which the line carrier is bound by its undertaking of transportation to render.37 If the industrial railway were performing one and only one of the three services outlined above, the problem would be a comparatively simple one. However, such is not usually the 36 In the Tap Line Cases it was held that it was an arbitrary exercise of power for the Interstate Commerce Commission to determine the nature of the service performed by an industrial railway merely by ascertaining whether or not the work was done for the proprietary industry. 234 U. S. 29, 34 Sup. Ct. 741. 37 In the Butler County Railroad Case it was held that a proprietary tap line if a common carrier was as much entitled to a division of the through rate as any carrier subject to the Act, 234 U. S. 29, 34 Sup. Ct. 748. The carrier is found to be performing at least two of these services, and not only for the proprietary industry, but for others. Thus the line of demarcation between the services it is rendering for which the line carrier should pay, and those which are purely shippers' services becomes difficult and at times impossible to define. And it may be that the problem can never be handled with complete satisfaction until an absolute severance of these services is enforced. Topic D. Public Duty § 198. Public obligation the fundamental principle. From the very beginning of our law, as has been seen, it has been recognized that some kinds of business were of special importance to the public, and that all persons engaged in such business owed the public peculiar duties. No one could be compelled to enter upon the employment; but if he chose to do so, he thereby undertook the performance of the public duties connected with it. The property which he devoted to the public employment was held to be affected with a public interest, ceasing to be juris privati only, as Lord Hale said so long ago. Plainly this is more true to-day than ever before; for the overshadowing importance of the public services in our modern life must be obvious to all. But the extent to which the primary duty of public service may go is just beginning to be appreciated. The duty placed upon every one exercising a public calling is primarily a duty to serve every man who is a member of his public.38 Implicit in this primary duty, necessarily involved in its full performance are various requirements. Not only must all be served, they must have adequate service; not only must they not be charged extortionate rates, but there must be no discrimination practiced. In such an elaborated statement 38 The rails of a common carrier constitute the public highway of modern times. Indianapolis Freight Bureau v. C., C. C. & St. L. Ry., 26 |