rates is responsible for the discrimination notwithstanding the fact that its rails do not extend to the point preferred." That a carrier does not directly serve a city is no defense to a charge of undue discrimination where such carrier participates in the carrying trade of that city. On the other hand, the fact that the rails of a carrier extend both to the point alleged to be unduly preferred and to its rival is not conclusive evidence of a preference, since it is still open to the carrier to show that it does not in fact serve the point which it is claimed is favored.72 In short, the Commission looks at the facts of the traffic in question. If it appears that it is controlled by a carrier which is using its power to effect undue discriminations, then such carrier will be held responsible whether it has actual physical connection with the point in question or not. A carrier whose rails do not extend to a given city will be considered as having its rails extended thereto if it has trackage rights into it over the rails of another carrier or if it owns or controls a road that enters it.73 If it is sought to fix responsibility upon a carrier for a preference resulting from a joint rate in which it participates, it must appear that the carrier entered into such joint rate voluntarily.74 If the joint rate was forced upon it, as for instance by the order of a State commission, the Commission formerly held that the carrier was not responsible even though it profited by such rates,75 but this has been Walsenburg Coal Field, 26 I. C. C. 85. 70 Manufacturers & Merchants' Ass'n v. A. & A. Ry., 25 I. C. C. 116; Galveston Commercial Ass'n v. A., T. & S. F. Ry., 25 I. C. C. 216; Greenbaum Co. v. C. & O. Ry., 25 I. C. C. 352; Southern Furniture Manufacturers' Ass'n v. So. Ry., 25 I. C. C. 379. 71 Railroad Commission of Tennessee v. A. A. Ry., 17 I. C. C. 418; Chamber of Commerce of Newport News v. So. Ry., 23 I. C. C. 345; Chamber of Commerce of New York 178. 73 Commercial Club of Superior v. Gt. Nor. Ry., 24 I. C. C. 93. 74 Partridge & Sons Co. v. Penn. Ry., 26 I. C. C. 484. 75 Railroad Commission of Kansas v. A., T. & S. F. Ry., 22 I. C. C. 407. reversed by the decision in the Shreveport case (sec. 769). On the other hand, a carrier which refuses to participate in rates to points not reached by its lines while participating in rates to other points similarly situated may be held for undue prejudice.76 A carrier which enters into joint rates with other carriers by that act greatly curtails its own freedom of action. Thus it is undue prejudice for a carrier to deny to points on its lines a transit privilege at Chicago while participating in through rates under which other carriers grant such a privilege to complainants' competitors on their lines." § 774. What constitutes a through line. To determine what constitutes a through line is not always an easy matter. A case which is much cited but which it is difficult to support is that of Indiana Steel & Wire Co. v. C., R. I. & P. Ry.78 The facts were these: For a number of years, several carriers, forming an association known as the Arkansas Freight Committee, by tariffs duly published, maintained identical rates on steel and wire products from what was known as Chicago-Cincinnati territory. In 1907, without dissolving their association, they divided this territory at the Indiana-Illinois line, and established higher rates to the east of that line. Complaint having been made that this was discriminatory, the Commission held that by making their original grouping of territories, the carriers became bound to maintain reasonable and non-discriminatory rates throughout the group "without any regard to the line or lines of the carriers on which the shipment originates or over which it must pass from origin to destination. The identical through rates and joint rates from Chicago-Cincinnati territory to Arkansas common points were voluntarily established 76 Allentown Portland Cement Co. v. P. & R. Ry., 27 I. C. C. 448. 77 Van Natta Bros. v. C., C., C. & St. L. Ry., 23 I. C. C. 1. 78 16 I. C. C. 155. Followed in Railroad Commission of Tennessee v. A. A. Ry., 17 I. C. C. 418. by the defendants and formally maintained for many years prior to 1907 without complaint or question by shippers or carriers as to their reasonableness and justness. The carriers failed to show sufficient grounds for such advance in 1907, and they have wholly failed to show any sufficient or reasonable grounds for such advanced rates and changed regulations." Commissioner Knapp, who wrote the opinion in the Eau Claire case, dissented. The effect of this decision is that when traffic from two points of origin on different lines is carried to a point on a common connecting line under joint rates in a single tariff to which all three lines are parties, a through line or group of lines is formed which serves the whole territory covered by the rate schedule, and makes it possible for a carrier to discriminate against a point which is only constructively on its line. The Commission has frequently said that it cannot treat the railways of the country as a unit, but it takes a long step in that direction when it treats so large a group of them as a unit. The Commission has also added new terrors to joint traffic arrangements, by holding that all the lines participating in such agreements constitute for rate purposes one line. § 775. Equalization of economic advantages-Economic theory. A theory of fixing rates which appeals to many economists and which is but a modification or special application of the rule for charging what the traffic will bear is the theory that rate making should be used to equalize the advantages which one locality may possess over another, in much the same way that advocates of a protective tariff argue that import duties should be used to equalize the cost of production. If a sea port is near the great grainproducing centers, other ports argue that this advantage of location should be overcome by such differentials as will enable them to obtain "their share" of the traffic. This theory, dangerous as it is from a legal standpoint, has been accepted in some of the State courts. Thus in a Minnesota case, Judge Collins justified the railroad commission in prescribing an abnormally low rate for a long haul of coal as compared with other commodities and other distances upon commercial considerations of the sort above described, "namely, the application of principles when fixing rates which are forced upon common carriers by various conditions and circumstances and are in common practice among them, a business policy which actuates and influences the carriers themselves to disregard a rule of strict comparison and strict equality as between bulk, or weight, or value as well as distance of carriage." 79 And in a Georgia case where the issue also was whether the railroad commission had acted irrationally in taking economic considerations into account in fixing the rate upon particular commodities between stations, Judge Evans said, "We do contend that the Commission, in the discharge of its duty to fix reasonable rates, is not precluded from the consideration of economic conditions recognized by the carriers in the conduct of their business. The full purpose of the creation of the Commission would be thwarted if it could not consider and act on every economic or industrial factor potentially influencing the operation of a railroad and the transportation of freight. It cannot act arbitrarily nor by edict produce abnormal conditions of trade; it cannot display favoritism by capriciously giving preferential rates to one locality which are denied to another. It may, however, recognize the traffic conditions between given points, and adjust its schedule to meet these conditions." 80 Even the Supreme Court of the United States has used language which seems to indicate a friendly feeling for this principle. In a case in which this was involved, it plainly appeared that the Interstate Commerce Commission had employed various 79 State v. Minneapolis & St. Louis Ry. Co., 80 Minn. 191, 83 N. W. 60. 80 Southern Ry. Co. v. Atlanta Stove Wks., 128 Ga. 207, 57 S. E. 429. economic policies in fixing the relative rates in question. The lower Federal court held that the Commission had no power to lower through rates as between certain points and Mississippi river points and Denver, so as to give, for example, the Missouri river cities an artificial advantage over other points in shipments east of Denver, and Denver an advantage over Missouri river cities to points west of Denver.81 But the Federal Supreme Court reversed this decision and set forth this general principle: "The outlook of the Commission and its powers must be greater than the interest of the railroads or of that which may affect their interest. It must be as comprehensive as the interest of the whole country. If the problems which are presented to it therefore are complex and difficult, the means of solving them are as great and adequate as can be provided." 82 § 776. Equalization of economic advantages-Legal practice. However attractive this theory may be to the economists, it has little weight with lawyers who have been concerned with the making of rates. Both the Federal courts and the Commission recognize that it is as impossible for any tribunal to equalize the commercial advantages of localities as it is to equalize the intellectual powers of individuals,83 The Interstate Commerce Act does not attempt to equalize fortunes, opportunities, or abilities.84 In an early case, the Commission set forth the principles which, with some exceptions to be noted hereafter, it has ever since followed: "It is not the duty of carriers, nor is it proper that they undertake by adjustment of rates or otherwise to impair or neutralize the 81 C., R. I. & P. Ry. v. Interstate Commerce Commission, 171 Fed. 680. 82 Interstate Commerce Commission v. C., R. I. & Pac. Ry., 218 U. S. 88, 54 L. ed. 946, 30 Sup. Ct. 65. 83 Brewer v. C. & G. Ry., 84 Fed. 268; Interstate Commerce Commission v. L. & N. Ry., 118 Fed. 613. 84 Interstate Commerce Commission v. Diffenbaugh, 222 U. S. 42; 32 Sup. Ct. 22, 56 L. ed. 83. |