70 furnish certain services in relation to the transportation of property at reasonable charges.66 Allowances, therefore, when these services are furnished by patrons under section 15 must not be above the reasonable cost of service, and thereby become indirectly a rebate.67 The refusal of a carrier to pay an allowance in a matter for which it had no tariff authority is, therefore, not in violation of the Act.68 An allowance in the form of additional free time may be just as unlawful as one in the form of money. 69 At the present time carriers very generally pay three-fourths of a cent a car mile on both loaded and empty movements." It will always be a question nowadays whether the net earning on cars as a result of such payments constitute more than a just return upon the value of those cars."1 But the principle is that whatever allowances are made must be just, reasonable and non-discriminatory.72 Whatever charges are made, whatever services are performed, and whatever privileges are allowed by carriers, must be stated separately in the schedules filed with the Commission.73 A common carrier by contract may not impose upon itself any burden or grant any privilege, or perform any service, or make any allowance with respect to the traffic of a particular shipper, except under the authority of its published tariffs.74 And even so, this can be done only when the burden is assumed, or the privilege granted, or allowance made to all shippers under like circumstances and similar conditions.75 There being no obligation to make such allowances, a complaint asking establishment of 66 Transit Case, 24 I. C. C. 340. 67 Mfrs. Ry. Co. v. St. L., I. M. & S. Ry., 28 I. C. C. 93. 68 Rylet v. W. R. R., 25 I. C. C. 210. 69 Alan Wood, Iron & Steel Co. v. P. R. R., 24 I. C. C. 27. 70 Rates on Linseed Oil, 26 I. C. C. 265. 71 In re Advances on Potatoes, 25 I. C. C. 159. 72 Suffern Grain Co. v. B. & O. R. R., 20 I. C. C. 200. 73 Brook-Rauch Mill & Elevator Co. v. M. P. Ry., 17 I. C. C. 158. 74 Anderson, Clayton & Co. v. C., R. I. & P. Ry., 18 I. C. C. 340. 75 General Electric Co. v. N. Y. C. & H. R. R. R., 14 I. C. C. 237. tariff provisions for reimbursement of shippers for repair made on cars was dismissed.76 739. Both rates must be open to all. The modern fear of discrimination is such that it is not open to a company to make concessions to one customer who is asking a cheaper service without at the same time giving other customers the right to get the lower rate by conforming with the conditions under which it is offered. Thus in one recent successful prosecution by the government for giving or taking a rebate the gravamen of the charge was not that the allowance of $1.00 per car for the terminal facilities furnished by the guilty shipper was improper in itself, but that the railroad had not properly announced such allowances in its published schedules." Still more open to condemnation is a contract between a particular shipper and a railroad company, whereby the railroad was to allow ten per cent off all freight bills rendered, to recoup a shipper who had built a hoist to load his ties upon a siding, for such an arrangement is necessarily exclusive.78 It has been said by the Commission that equality of opportunity in the use of transportation facilities is one of the purposes of the Act.79 It should be remembered that allowances are subject to abuses in shape of rebates, and they must therefore be strictly scrutinized.80 Discrimination would result from granting lower rate to large shipper providing facilities for prompt unloading than accorded smaller competitor unable to provide such facilities.81 A proposed rate was recently opposed, because it would discriminate in favor of one shipper who built tank facilities in which to receive his shipments.82 76 Balfour, Guthrie & Co. v. O. W. R. R. & N. Co., 21 I. C. C. 539. 77 United States v. C. & A. Ry., 148 Fed. 646. 78 Chesapeake & O. Ry. v. Standard Lumber Co., 174 Fed. 107. 79 In re Wharfage Charges at Galveston, 23 I. C. C. R. 535. 80 Southwestern Missouri Millers' Club v. St. L. & S. F. R. R., 26 I. C. C. 245. Restricted Rates, 20 81 In re 82 Molasses Rates from Mobile, 28 I. C. C. 666. § 740. Lighterage allowance. Discrimination would result from the payment of a lighterage allowance to one shipper while refusing such allowance to another shipper performing that service.83 The Commission has jurisdiction under section 15 of the Act to inquire into the lawfulness of allowances made by carriers to shippers for the alleged transfer by the latter from their refineries or warehouses to the cars of defendants.84 Loose allowances paid to shippers "in lieu of lighterage and floatage" may be questioned.85 But there is no ground for criticising the withholding of lighterage privilege and allowance from the complainant where its sugar crosses lighterage limits, while according such a privilege and allowance to another shipper within lighterage limits.86 It should be noted that by this doctrine which has finally prevailed, lighterage within a zone of delivery covered by the rate scheduled is treated as part of the transportation service undertaken by the carrier, for aiding in the performance of which shippers with whom agreement is made may be given an allowance subject to its being found unreasonable by the Commission under section 15. Under these conditions such services are not regarded as merely accessorial to transportation, payment for which would be considered as forbidden by the Act unless accorded to all under the same conditions. § 741. Elevation charges. While the Commission believes that the payment of all elevation allowances and the giving of all free elevation should be prohibited, it fully accepts the United States Supreme Court decision holding that elevation allowances may be made.87 Considering the Elevator Allowances 83 Federal Sugar Refining Co. v. B. & O. R. R. Co., 20 I. C. C. 200. 84 In re Allowances for Transfer of Sugar, 14 I. C. C. 619. 85 Chamber of Commerce of New York v. N. Y. C. & H. R. R. R. Co., 24 I. C. C. 55. 86 United States v. Baltimore & O. R. R., 231 U. S. 274, 34 Sup. Ct. 75. 87 The current doctrines of the Commission may be seen in: In re Elevation Allowances, 24 I. C. C. 197, and Traffic Bureau of St. Louis cases of Supreme Court together, the Commission has concluded that it was intention of Supreme Court to hold that whatever might be the case, if railroad saw fit to confine its payment to elevation actually required in transportation of grain, it must, when it makes this allowance to one elevator under such circumstances as to give that elevator payment for commercial elevation, extend the same privilege to all other elevators similarly situated.88 The Commission holds that a railroad should cease from paying any allowance for terminal services to elevator, unless tariffs shall at the same time offer such allowance to all other shippers using the elevators in the city.89 But an allowance made to a shipper of grain furnishing elevation service under an arrangement with a carrier, is regarded by it a rebate and an unlawful discrimination only when it involves a profit over and above the actual cost of service.90 § 742. Transit privileges. The Commission has held that carriers may grant the privilege of concentration and protect through rates relating thereto; "1 for concentrating rates by increasing the size and regularity of shipments seem to be of advantage to carriers as well as shippers.92 Lack of proper policing at a transit point is a matter that ought to be investigated and corrected.93 Compression is a service which the v. C., B. & Q. R. R., 22 I. C. C. 496. 88 See Peavey & Co. v. Union Pacific Ry., 222 U. S. 42, 56 L. ed. 83, 32 Sup. Ct. 1, and Union Pacific Ry. v. Updike Grain Co., 222 U. S. 215, 56 L. ed. 171, 32 Sup. Ct. 39, which have made the long course of opinion in the Commission previous to that time more or less obsolete. 89 In re Keystone Elevator Co., 25 I. C. C. 618; see also Gund & Co. v. C., B. & Q. R. R., 25 I. C. C. 326. 90 Re Allowances to Elevators by U. P. R. R., 12 I. C. C. 85; see also Ryley v. Wabash R. R., 25 I. C. C. 210. 91 Anderson, Clayton & Co. v. C., R. I. & P. Ry., 18 I. C. C. 340. 92 Railroad Commission of Wisconsin v. C. & N. W. Ry., 16 I. C. C. 85. 93 Indianapolis Freight Bureau v. C., C., C. & St. L. Ry., 26 I. C. C. 53. carrier procures for its own convenience, and when that service is performed in such manner as not to prejudice or prefer a particular shipper or community, the Act does not limit the freedom of the carrier to make contracts in respect thereto.94 In other words, what is forbidden by the Act are payments which inure to the benefit of a shipper whereby his transportation costs him less net than what other shippers, his competitors, are paying. In dealing with a shipper if payments are made for anything pertaining to the transportation the transaction is subject to the closest scrutiny to determine whether more than a fair price is passing hands. § 743. Terminal allowances. It has been seen that the ownership by a shipper of a rail line which serves that shipper calls for the closest scrutiny to ascertain whether, through divisions or allowances, rebates are made to the shipping owner.95 If it be shown that under the practice prevailing the line carrier owed no duty to move cars about complainant's yard it follows that the complainant was not entitled to recover for the services performed and the instrumentalities furnished by it in connection with the movement of cars in its yard. And if a switching service is included within the transportation undertaken at the rate scheduled, an undue disadvantage for which damage will be awarded will be held to result from the carrier's failure to accord terminal switching allowance to complainant, while granting such allowances to competing industries performing similar services.97 And if the relation between the tap line and the main carrier is that of connecting railroads, whenever an abnormal division is allowed to an industrial railroad there results an indirect rebate to the shipping 94 Merchants Cotton Press & Storage Co. v. I. C. R. R., 17 I. C. C. 98. 95 Crane R. R. Co. v. P. & R. Ry., 15 I. C. C. 248. 96 Solvay Process Co. v. D., L. & W. R. R., 14 I. C. C. 246. 97 Buffalo Union Furnace Co. v. L. S. & M. Ry., 21 I. C. C. 620. |