classes, and five cents per hundred on the four other classes, on traffic from west of Buffalo, were not unreasonable. The conclusion was based upon the greater cost of transportation to Boston, the greater volume of business to and from New York, the competition by water and through lakes and canal and Hudson river to New York, and the geographical and commercial advantages of New York.

Later however in 1892, the Commission re-examined the subject and concluded that the differential was excessive and should be made, not by adding an arbitrary sum to the New York rate, but by adding a percentage, ten per cent, to the New York rate. In this case the Commission held that the doctrine of estoppel was not applicable, as the Commission was not a court, and that the whole spirit and scope of the Act made the report and order of the Commission in no sense final, except in the sense that the parties may be impressed with the justice of the order and acquiesce therein. 5 I. C. C. R. 166, 3 Int. Com. Rep. 830.

In 1898 the Commission, on the complaint of the New York Produce exchange, investigated the differentials allowed by the railroads of two cents to Philadelphia and three cents to Baltimore below the New York rate on grain, flour and provisions. 7I C. C. R. 612. The Commission made an exhaustive investigation of the commerce of the three ports, and concluded that the differentials were legitimately based upon the competitive relations of the carriers, and did not result in any unlawful preferences or advantage to Philadelphia or Baltimore over the city of New York. It was contended in this case that the rates were really made by the trunk line associations, but the Commission held that, so far as the alleged violation of the third section was concerned, this was immaterial.

Cases of alleged discrimination in relative rates between competing cities have been investigated in different sections of the country. As in the case of alleged unreasonable rates, the conclusions of the Commission are not adjudications, and as the Commission observed in the case of the Boston differential, they do not preclude the Commission itself from reinvestigation. A rate which is relatively reasonable at one time, may become through changed conditions, relatively unreasonable.'

1 Another hearing, involving the (1904) progressing before the Comreasonableness of the existing differ- mission.

entials allowed eastern cities is now

§ 187. Form of unjust preference immaterial. The third section is broader than the second, in that it is not limited to discrimination in rates, but includes any form of unjust discrimination whereby a person, a class of persons, a locality or kind of traffic is unjustly prejudiced.

This undue preference between competing cities may be shown in the allowance of demurrage; that is, in allowing time unreasonably small in one place and unreasonably long in another. 8 I. C. C. R. 531. See also 7 I. C. C. R. 591.

It may be stated generally that any form of discrimination between persons or localities in the performance of any of the duties of a carrier, whether such duties are imposed by the common law, or by statute, or by contract, would be violative of this section. Thus the failure to publish through rates to a particular town while such through rates are established and published to other points on the road, operates as an unlawful discrimination against that town. 9 I. C. C. R. 221.

In any of the so called "accessorial services" which may be rendered by the carrier, there must be no unjust preference of localities or individuals in providing such services. Any injustice resulting from the allowance and non-allowance by the carriers of such privileges and facilities is violative of section. three, as well as of section two. See 7 I. C. C. R. 556.

The differential between carload and less than carload rates may be unjustly prejudicial to localities, as well as unjustly discriminative as between individuals. See 9 I. C. C. R. 318, and section 2, supra.

Where the circumstances and conditions of the localities are dissimilar, there can be no unjust preference under section. 3, as there can be unjust discrimination under section 2. See Grand Haven Cartage case, supra. Thus it is not an unjust discrimination against a town situated on a branch line to charge it a higher rate than an intermediate point on the through line, even though such intermediate point enjoys the same rate as the terminal point. 5 I. C. C. R. 44 and 3 Int. Com. Rep. 706.

In 4 I. C. C. R. 131 and 3 Int. Com. Rep. 162, the Commission ruled that the acquisition and consolidation by a carrier under one system or arrangement of different competing lines of road serving the same territory in the carriage of competi

tive traffic to the same markets did not allow it to take advantage of the privilege to deprive the public of the benefits of fair competition nor afford warrant for oppressive discrimination for its own interests, such as equalizing profits of the several divisions; but that its duty to the public required that its service must be alike to all who were situated alike.

It was held in Foster v. C., C., C. & St. L. R. Co., 56 Fed. Rep. 434, that the action of a railroad passenger agent guaranteeing that a theatrical troupe to whom he sold a party rate ticket should arrive at its destination in a given time, was not a giving of an undue or unreasonable preference, and the guarantee was held valid and enforcible.

§ 188. Unjust discrimination in time of closing freight stations. The Commission ruled in a recent case (10 I, C. C. R. 378), that its jurisdiction under this section extended to a case of alleged unlawful prejudice and disadvantage to shippers in Cincinnati of outbound package freight, through the enforcement by carriers of a regulation providing for the earlier closing of the stations used for the reception of such. freight. The closing hour, 4:30 p. m., was earlier than that in competing cities, and the Commission said that this was a disadvantage to Cincinnati shippers, but that it was for the time justified by the exceptional congestion of traffic then prevailing. The complaint was therefore dismissed without prejudice to any further necessary proceeding.

§ 189. Unjust preference in car service. The providing of reasonable car facilities for its patrons is a common law duty of the carrier, and this service must be rendered without unreasonable discrimination either in charges or in the facilities afforded. This common law duty, which is enforced in the different states under state statutes and at common law, is emphasized by and may be enforced under the provisions of this section as to interstate traffic. Localities as well as shippers may be prejudiced by the unjust discriminations in the supply of cars. This right is further enforced by the amendment of 1889, specifically authorizing the issue of a writ of mandamus (infra section 23), for the furnishing of cars and other facilities. In United States v. West Virginia & Northern Railroad Co., 125 Fed. Rep. 252, the United States Circuit Court of West Virginia granted a mandamus to compel the

carrier to cease preferences in the supply of cars to certain coal mines. The court said it was the legal duty of the railroad company in furnishing cars to coal mines along its line to distribute the same impartially without unjust discrimination or favoritism, and that such distribution should be based on a disinterested and intelligent examination of the mines, by experts, and upon a consideration of all the factors which go to make up the capacity of the mines, the production, the equipment for the use for handling and loading of the product being secondary because it could quickly and easily be increased to meet the requirements. The distribution of cars was found to have been unduly preferential to certain companies, this conclusion being based upon an estimate of the capacity of the mines and the percentage of cars allotted to each. See also to same effect United States v. Norfolk & Western R. Co., 109 Fed. Rep. 831, infra section 23.

It was ruled by the Commission, 1 I. C. C. R. 594 and 1 Int. Com. Rep. 787, that it was not a valid excuse for refusal to furnish a fair allotment of cars of a certain class that they could be more profitably employed and could supply the wants of a larger number of shippers on another portion of the line. It also ruled that undue preference of a locality or of a shipper in the car service is established by showing that there is a considerable delay in furnishing cars, while other localities or shippers are furnished with comparative promptness. 9 I. C. C. R. 207. For other cases of discrimination before the Commission in providing cars for coal, see 10 I. C. C. R. 226; 10 I. C. C. R. 47. The Commission in several cases has awarded reparation in damages for discrimination in car service.

In Harp v. Choctaw & G. R. Co., 61 C. C. A. 405, and 125 Fed. Rep. 445 (eighth circuit) in 1903, it was held in a case where discrimination in car service was claimed in violation of the Arkansas statute, that a carrier transporting large quantities of coal is entitled to make regulations in respect to the manner of receiving and transporting it so that it may be handled safely, expeditiously and economically without interference with the carrier's other business, and regulations which are all designed to promote such business cannot be complained of on the ground that they operate to give a preference to Affirmed in Cir. Ct. of Appeals (4th Circuit) (Nov. 1904). 134 Fed. Rep. 198.

one who complies with them or in a discrimination against one who does not. The furnishing therefore of cars to certain mine owners, who, through agreements with the company, had constructed private spur tracks to their mines, while refusing to furnish cars for loading on the station track to owners who had constructed no spur track, did not constitute an undue preference either under the common law or the Arkansas statute, which prohibited the giving of any preferences in the furnishing of cars. The court found that the volume of business was such that to permit the use of the station tracks for loading cars in that manner would not only interfere with the operation of the trains, but also cause serious loss and inconvenience to other shippers and the public. It was held by the state court under the same statute that there was no undue preference between localities when there were not enough cars to supply all. The court cited as the leading case, Oxlaid v. Northeastern R. Co., 15 Common Bench, N. S. 680, constru ing the English Canal and Traffic Act of 1854, upon which the Interstate Commerce Act was based. Little Rock & St. L. R. Co. v. Oppenheimer, 44 L. R. A. 353, 64 Ark. 271.

The Commission has ruled that it is not the duty of a carrier to notify the shipper when he can obtain cars for the removal of freight, if by reasonable inquiry he can obtain such information himself. 1 I. C. C. R. 608 and 1 Int. Com. Rep. 778.

It was said by the commission in another case, 1 I. C. C. R. 374 and 1 Int. Com. Rep. 688, where damages were claimed for alleged violation of the Act in the failure to furnish cars for coal shipments, that the inability of a carrier to furnish cars as fast as demanded by shippers was not a violation of the Act, where the company had an adequate freight equipment for ordinary conditions, but owing to an extraordinary demand for coal cars due to exceptional conjunction of circumstances, was unable to supply them as fast as the shippers demanded. Under such circumstances, the company performed its duty when it furnished the cars ratably and fairly at the mines along its line in proportion of their freights until the emergency had passed. Neither was a carrier responsible for the detention of cars by shippers longer than was necessary, when it appeared that the company did all in its power to enforce the prompt unloading of the cars. See also as to car