accepted only by parties who can control a considerable capital, and who will supply for themselves an important part of the means of transportation, and also supply terminal facilities. The man of small means who adopts the method of transportation in barrels cannot be said to do so of choice when the failure of the carrier to supply for the other the customary means of transportation compels him to do so." 49 § 733. Concessions to shippers in bulk considered. This complaint has been made to the Commission many times since this first case; and the shippers have in the successive decisions received increasing protection against discrimination of the railroads of the sort here described.50 The Commission has insisted upon its policy that unless the railroads provide an adequate equipment of tank cars oil must be taken in barrels at the same rate as it would be taken in tank cars. And for the weight of the tank it is held that in assuming for transportation purposes that a barrel of refined petroleum oil weighs 400 pounds and that a gallon of that commodity weighs 6.3 pounds when shipped in tanks, the railroads were using constructive or hypothetical weights so much out of proportion to actual weights that positive and measurable preference was granted to the shipper by the tank method; and so far as that practice enabled the tank shipper to secure the carriage of more pounds of freight for the same money than the shipper in barrels it was an unlawful prejudice. As to another scheme of giving a reduction it was held that the practice of allowing the tank shipper an arbitrary deduction of 42 gallons per tank car is wholly indefensible, as losses from leakage and evaporation were not less proportionally when the shipment is made in barrels, and no circumstance was discovered or reason advanced which "See Independent Refiners Ass'n v. W. N. Y. & P. R. R., 4 Int. Com. Rep. 63, 5 I. C. C. 415. 30 Rice v. Louisville & N. R. R., 1 Int. Com. Rep. 722, 1 I. C. C. Rep. 503. justified a concession of that nature to the shipper who furnishes his own conveyance, when no corresponding allowance was made to a rival shipper using the means of transportation provided by the carrier. 51 § 734. Railroad without tank cars. This abuse came before the judicial courts for decision not long afterward, in the case of State v. Cincinnati, New Orleans & Texas Pacific Railway Company, 52 where Mr. Justice Bradbury wrote a strong opinion against such discrimination, concluding with this sweeping language: "The duty of providing suitable facilities for its customers rests upon the railroad company; and if, instead of providing sufficient and suitable cars itself, this is done by certain of its customers, even for their own convenience, yet the cars thus provided are to be regarded as part of the equipment of the road. It being the duty of a railroad company to transport freight for all persons, indifferently, and in the order in which its transportation is applied for, it cannot be permitted to suffer freight cars to be placed upon its track by any customer for his private use, except upon the condition that, if it does not provide other cars sufficient to transport the freight of other customers in the order that application is made, they may be used for that purpose. Were this not so, a mode of discrimination fatal to all successful competition by small establishments and operators with larger and more opulent ones could be successfully adopted and practised at the will of the railroad company, and the favored shipper." 53 51 Scofield v. Lake Shore & Michigan Southern R. R., 2 Int. Com. Rep. 67, 2 I. C. C. Rep. 90; Re Rebate Tank & Barrel Rates, 2 Int. Com. Rep. 245, 2 I. C. C. Rep. 365; Rice v. Western N. Y. & Pa. Ry., 3 Int. Com. Rep. 162, 4 I. C. C. Rep. 131; Rice, Robinson & Winthrop v. Western N. Y. & Pa. R. R., 2 I. C. C. Rep. 389, s. c., 3 I. C. C. Rep. 87, s. c., 4 I. C. C. Rep. 131, s. c., 6 I. C. C. Rep. 455; Rice v. Cincinnati, W. & B. R. R., 3 Int. Com. Rep. 841, 5 I. C. C. Rep. 193. 52 47 Ohio St. 130, 23 N. E. 928. 33 See also Brundred v. Rice, 49 Oh. St. 640, 32 N. E. 169, 34 Am. St. Rep. 589. § 735. Transportation expenses paid by shipper. Whatever is done by the shipper which directly reduces to the railroad company the cost of serving him may be allowed for in the rate made to him without causing discrimination. One of the plainest cases of this sort before the Commission is Castle v. Baltimore & Ohio Railroad Company, 54 where complainant alleged that defendant had unjustly discriminated in rates and facilities for the transportation of sand against him and in favor of his competitors. Discussing the essential facts, the Commission said: "The only remaining point, and by far the most important one raised by this issue, is that involved in the alleged discriminations in favor of Brown, the complainant's competitor at Dock Siding. Brown, it appears, owned and at times leased other cars and equipment, paid the trainmen, conductors, and necessary telegraph operators, and relieved the defendant from all liability from either loss or damage to rolling stock or injury to employees; in consideration of which the defendant charged him for track service only. The complainant owned neither cars nor equipment, and when shipping in the defendant's cars was charged the published rate." 55 § 736. Rental paid on shipper's cars. If the shipper provides his own cars the railroad, it would seem clear, may allow him a reduction in his freight rate, equal to the rental value of his cars at all events. It is properly the business of the railway companies, to be sure, to supply cars for their customers; but if they stand ready to do this, they may, nevertheless, at their option make an allowance to the shipper who furnishes his own cars, which is not disproportionate to the reduced cost of serving him. Even in the extreme case of State v. Cincinnati, New Orleans & Texas Pacific Railroad Company, 56 54 8 Int. Com. Rep. 333. 55 See Chicago & A. R. R. Co. v. Chicago V. & W. Coal Co., 79 Ill. 121, where a shipper furnishing the rolling stock was given an unusual which is most opposed to special arrangements of this sort, this is grudgingly admitted. "No doubt, a shipper who owns cars may be paid a reasonable compensation for their use, so that the compensation is not made a cover for discriminating rates, or other advantages to such owner as a shipper. Nor is there any valid objection to such owner using them exclusively, as long as the carrier provides equal accommodations to its other customers. It may be claimed that if a railroad company permit all shippers, indifferently and upon equal terms, to provide cars suitable for their business, and to use them exclusively, no discrimination is made. This may be theoretically true, but is not so in its application to the actual state of the business of the country; for a very large proportion of the customers of a railroad have not a volume of business large enough to warrant equipping themselves with cars, and might be put at a ruinous disadvantage in the attempt to compete with more extensive establishments. Aside from this, however, a shipper is not bound to provide a car.” 57 § 737. Allowance for cars or facilities furnished. When the shipper furnishes cars or other facilities the carrier may lawfully make an allowance on that account, provided the allowance is reasonable in amount; an unreasonable allowance under color of compensation for facilities so furnished would constitute an illegal rebate. So a reasonable allowance to an elevator company for elevator service is not an illegal rebate, though the elevator company as a shipper of grain is thereby incidentally aided in its business. 58 So the allowance of mileage for tank cars furnished by shippers, and low return rates on oil returned in the cars, is not illegal unless the mileage is excessive.59 57 See also Brundred v. Rice, 49 Ohio St. 640, 32 N. E. 169, 34 Am. St. Rep. 589. 58 Matter of Allowance to Elevators, 10 I. C. C. Rep. 309. 59 Rice v. Cincinnati, W. & B. R. R., 3 Int. Com. Rep. 841, 5 I. C. C. 193. But when the allowance is unreasonable it constitutes an illegal rebate. Each case involving an allowance must be determined upon the special facts and circumstances presented." This matter of allowances is one which has received much attention from the Commission of late years; for by section 15 of the Act as amended it is authorized to limit the amount that the carrier may pay to the shipper for transportation services rendered by latter. But the provision clearly recognizes that a just and reasonable allowance may be made to the owner of property transported when such owner renders a service connected with or furnishes an instrumentality used in the transportation.63 A memorandum of two recent cases of the Supreme Court among others lately there decided, will serve to make this matter clear. In one of them it was held that elevation is made such a part of transportation as to bring it within the jurisdiction of the Interstate Commerce Commission, which is authorized to determine what is a reasonable allowance to a shipper who is also an elevator man for elevation services rendered in connection with transportation.64 In the other it was decided that when, under the through rate to New York, delivery is undertaken within lighterage limits published in the schedule, an allowance to the extent that is deemed proper may be made to receivers furnishing their own lighterage and terminals therefor.65 Topic D. Restriction to Scheduled Allowance § 738. Extent of statutory restrictions. Section 1 imposes on the carrier the duty to provide and 60 Shamberg v. Delaware, L. & W. Ry., 3 Int. Com. Rep. 502, 4 I. C. C. 630. 61 Merchants Dispatch Storage Co. v. I. C. R. R. Co., 17 I. C. C. 98. 62 Industrial Lumber Co. v. St. L. W. & G. Ry. Co., 19 I. C. C. 50. 63 Sterling & Son Co. v. M. C. R. R. Co., 21 I. C. C. 451. 64 U. P. R. R. Co. v. Updike Grain Co., 222 U. S. 215, 56 L. ed. 171, 32 Sup. Ct. 39. 65 United States v. B. & O. R. R., 231 U. S. 274, 34 Sup. Ct. 75. |