out charges or fees.17 This last decision must now be read, however, with the qualification contained in the first section of the amendatory act of June 29, 1996, that any common carrier subject to the provisions of this act, upon application of any lateral, branch line of railroad, or of any shipper tendering interstate traffic for transportation shall construct maintain and operate upon reasonable terms a switch connection with any such lateral, branch line of railroad, or private side track which may be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish sufficient business. to justify the construction and maintenance of the same; and shall furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper."

Although the charge for caring for cattle at the points of departure or destination is usually included in the transportation charge, in the nature of things, there is no reason why, if the public convenience be subserved thereby, the compensation may not be apportioned so that so much may be paid for the loading and the hauling and so much for the unloading and the care of the animals pending delivery.18 When the charges are so divided, however, and the means for unloading and delivery of cattle have been provided by the consignee himself at a convenient point on its line of road, a railroad company may not refuse to make such delivery for the sole and only purpose of compelling such consignee to pay a charge fixed by the company in response to its obligation to provide the means of unloading for consignees who must, necessarily, require that service.19

It often happens that a railroad company is bound by its. contract of carriage to deliver cattle at stock yards off its own line, by transporting them over a line belonging to the

17. Butchers & Drovers' Stock Yards Co. v. Railroad, 67 Fed. 35, 14 C. C. A. 290, 31 U. S. App. 252. 18. Walker v. Keenan, 73 Fed. 755, 19 C. C. A. 668, 34 U. S. App.

691, reversing Union Trust Co. v. Railroad, 64 Fed. 992.

19. Covington Stock Yards v. Keith, 139 U. S. 128.

stock yards company. In such case it is immaterial whether the railroad company has facilities of its own for delivering cattle at any other place than the stock yards, because even if such

de co other facilities exist they would not be used under

the contract

out a

Hence the railroad company is not bound in

of such facilities to deliver at the stock yards withseparate charge and may, on posting schedules as required by the Interstate Commerce Act, make a through charge for the cattle and a separate reasonable terminal charge for delivery at the stock yards.20

Sec. 557. Discrimination in coal car distribution under section three.-Under section three of the Interstate Commerce Act, in furnishing cars to coal mines along its line, it is the duty of a railroad company to so manage its business with all the mines located on and shipping coal over its line in the same relative and impartial way, so as to show no favoritism to either one of them; thereby exercising the power and discretion confided to it, so as not to act in a manner, the result of which would necessarily build up one at the expense of the others, or advance the interest of two to the detriment of a third. In reaching a proper basis for the distribution of railroad cars it is necessary that an impartial and intelligent study of the capacity of the different mines be made by competent and disinterested experts, whose duty it should be to carefully examine into the different elements that are essentially factors in the finding of the daily output of the respective mines which are to share in the allotment. Among the matters to be investigated are the following: The working places, the number of mine cars and their capacity, the switch and tipple efficiency, the number and character of the mining machines in use, the hauling system and the power used, the number of miners and other employes, the mine openings and the miner's houses. No one of these various and essential elements can safely be said to be absolute

20. Interstate Commerce Com- 46 L. Ed. 1182, affirming 103 Fed. mission v. Chicago, Burlington & 249, 43 C. C. A. 209 and 98 Fed. Quincy R. R. Co., 186 U. S. 320, 173.

ly controlling, though likely the most important of them all are the real working places, the available points at which coal can be profitably mined. The equipment is of secondary importance, as that can be readily replaced or increased.21 And while the capacity of a shipper of coal may be greater than his allotment of cars, yet, when such is also the case with every other operator similarly situated in the coal field, it is the duty of the railroad company, when the supply of coal ears is short, to pro-rate the supply on hand, without unjust discrimination among all the operators, including the shipper in question.22

When mines have been working for some time, not to the limit of their capacity, but on an output based on a restricted allotment of railroad cars, and a new inspection is taken from which to make the distribution of railroad cars for future use, because of changed conditions, then such previous facts and the results naturally following therefrom should be noted with discernment before the maximum capacity of such mine for future output is announced. If this is not done, the mine is apt to be discriminated against, even though such was not intended, and mines where such conditions did not exist will, under the new allotment, develop themselves much faster than the mine which had theretofore been restricted in its output. If the railroad management withholds cars from a mine, it thereby, to a certain extent, retards its development, while, on the other hand, if such management discriminates in favor of a mine by allowing more cars than its proper rating entitles it to, the result is the rapid and abnormal development of that mine, to the prejudice of those competing with it. It is, therefore, evident that if equitable rules are not observed, .the power that controls the railroad car supply

can foster one mine at the expense of another, or can build up one locality while it is tearing down another.23

This duty of a railroad company to allot cars without unjust discrimination among coal shippers cannot be altered by the furnishing of special cars to the railroad company by one shipper, to be used exclusively in the transportation of coal for that shipper, whether the cars are sold by the shipper to the railroad company on the installment plan, or the shipper retains title to the cars. If the cars are purchased from the shipper by the railroad company on the installment plan, the company thereby becoming interested at once, and finally the absolute owner thereof, then, in the event of an exclusive application of the same to the business of that shipper, there never would be a time, from first to last, during which the railroad company, by such a course, would not be devoting rolling stock which it owns, or in which it is interested as a common carrier, to the demands of one shipper to the exclusion of others similarly situated, which it may not do; or, even if it should never become interested in, or the owner of the cars, still it may not rent its tracks or permit them to be appropriated by any one to the detriment of other shippers whom it should serve to the uttermost; and in the stress of unusual business such special cars in its service would have to be applied to the accommodation of all shippers alike.24

Sec. 558. Third section applies as well to passenger as to freight traffic. The inhibitions of the third section apply, of course, as well to passenger as to freight traffic. A railroad company cannot, therefore, discriminate against passengers who purchase tickets outside a state on its own road by refusing to stop at a station for them where it stops its trains to let off passengers who purchase tickets over other roads outside the state.25

Co., 109 Fed. 831, s. c., 114 Fed. 683.

23. United States v. Railroad Co., 125 Fed. 252, affirmed, 134 Fed. 198, 67 C. C. A. 220.

24. United States v. Railway Co., 109 Fed. 831, s. c. 114 Fed. 683.

25. Railway Co. v. Moore (Tex. Civ. App.), 80 S. W. Rep. 426.

Sec. 559. Real and substantial competition justifies dissimilarity in rates.-It has been said by the Supreme Court of the United States that the only principle by which it is possible to enforce the whole statute is the construction adopted in its opinions; that is, that competition which is real and substantial, and exercises a potential influence on rates. to a particular point, brings into play the dissimilarity of cireumstances and conditions provided by the statute, and justifies the lesser charge to the more distant and competitive point than to the nearer and non-competitive place, and that this right is not destroyed by the mere fact that incidentally the lesser charge to the competitive point may seemingly give a preference to that point, and the greater rate to the noncompetitive point may apparently engender a discrimination against it.26 Thus the fact that low rates are made in a "trunk line territory" in which very active competition exists on through shipments from Chicago and other western points to Norfolk and Richmond, Va., while substantially the local rates are charged on the same lines on through shipment from the same points to Wilmington, N. C., which is not in the "trunk line territory" and has less active competition, does not give Norfolk and Richmond an undue or unreasonable preference or advantage, or subject Wilmington to an undue or unreasonable prejudice or disadvantage in violation of section three.27 The advantageous position of a trader at a competitive point is as much a circumstance to be taken into consideration as the geographical position of another trader

26. East Tennessee, Virginia & Georgia Ry. Co. v. Interstate Commerce Commission, 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. R. 516, reversing Id., 99 Fed. 52, 39 C. C. A. 413, and Interstate Commerce Commission v. East Tennessee, etc. Ry. Co., 85 Fed. 107; Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U. S. 144, 18 Sup. Ct. R. 45, 42 L. Ed.

414, affirming 74 Fed. 715, 21 C. C. A. 51, 41 U. S. App. 453 and 69 Fed. 227. See also, Interstate Commerce Commission v. Louisville & N. R. Co., 73 Fed. 409; Interstate Commerce Commission v. Chicago Great W. Ry. Co., 141 Fed. 1003.

27. Interstate Commerce Commission v. Cincinnati, P. & V. Railroad, 124 Fed. 624.