the grain with the result that when it moved forward to the various markets it was in condition for immediate inspection and sale. At first the commission ruled that the allowances made by certain of the carriers for such elevation and transfer, 114 cents per 100 pounds, notwithstanding the important advantages these elevator contractors had over competitors, did not constitute a violation of the act; upon reconsideration, the commission attempted to separate elevation as a part of "transportation from commercial elevation which is necessary for cleaning, sorting, grading, clipping and mixing and held that the allowance for elevation or transfer in transit should not exceed threefourths of a cent per 100 pounds; more recently however the commission has ruled that the commercial advantages derived from elevation in transit are so great, and the service of tranfer in transit so interwoven with purely commercial elevation, that no allowance should be made therefor to the owners of the grain. This ruling was reversed by the United States circuit court (176 Fed. 409), and decision was affirmed by the supreme court in 32 Sup. Ct. 2 (Nov. 1911), on the ground that such order was beyond the power of the commission. The court sustained the order of the commission reducing the allowance to costs of service, confining the allowance to grain reshipped within ten days. See infra, § 247.

For commission rulings see 10 I. C. C. R. 309; 12 I. C. C. R. 85 and 111; 13 I. C. C. R, 498; 14 I. C. C. R. 315, 317 and 551; 15 I. C. C. R. 90 and 147; 16 I. C. C. R. 337, 479 and 590; 17 I. C. C. R. 158; and 18 I. C. C. R. 364.

§ 152. The amendments of section as to accessory charges.The third paragraph of this section was amended by the Hepburn Act by the omission of the words "or for receiving, delivering, storage, or handling of such property," and by changing the phrase "reasonable and just" to "just and reasonable." The latter change is without significance, and the omission noted was due to the fact that the definition of "railroad" and of "transportation" contained in the second paragraph, as amended, supplied the omission.

§ 153 (117). Carriage of live stock and perishable property. The character of the property may impose upon the carrier distinct obligations with respect to the manner of carriage and de

livery. Thus in the case of live-stock, the company is under a legal obligation to provide suitable and necessary means and facilities for receiving live-stock offered for shipment, and this duty cannot be efficiently discharged, at least in a town or city, without the aid of enclosed yards in which the stock offered for shipment may be handled with convenience and safety and without inconvenience to the public. The railroad company therefore cannot, in addition to the customary and legitimate charges for the transportation, make a special charge for merely receiving and delivering stock in and through the yards provided for the purpose. Covington Stockyards Co. v. Keith, 139 U. S. 128, 35 L. Ed. 73. The court in this case applied the rule laid down in Northern Pennsylvania Railroad Co. v. Commercial National Bank of Chicago, 123 U. S. 727, 31 L. Ed. 287, that the undertaking of a carrier to transport livestock differed in some respect from the responsibility assumed in the cartage of ordinary goods and included the delivery of such live-stock, the difference referred to growing out of the nature of the particular property transported.

A railroad carrier could make an exclusive contract with a stock yards for delivery of livestock, provided no charge was made for delivering when taken by consignee within reasonable time. Covington Stock Yards v. Keith, supra; Butchers & Drovers' Stock Yards Co. v. L. & N. R. Co., 14 C. C. A. 290, 31 U. S. App. 252, 67 Fed. Rep. 35, 10 I. C. C. R. 173; Central Stock Yards v. L. & N. R. Co., 192 U S. 568, 48 L. Ed. 565. See, infra, section 3. In the case of the Union Stock Yards of Chicago (Commission v. C. B. & Q. R. Co., 186 U. S. 320, 46 L. Ed. 1182), the supreme court affirmed the circuit court of appeals (43 C. C. A. 209, 103 Fed. 249), in refusing to enforce an order of the commission holding unreasonable the charge of two dollars for the delivery of the live-stock to the stockyards. It seems that prior to 1894 no separate terminal charge was made; and the through rate existing prior to 1894 was presumed to have provided compensation for services for making deliveries to the stockyards. The court said that the defendants had the right to divide their rates, and that the terminal charge must be separately considered as a distinct charge, and if it was reasonable as a separate charge it did not follow that it should be reduced when the through rate was reduced.

The court therefore affirmed the decree of the court of appeals without prejudice to the commission's right thereafter to commence proceedings to correct any unreasonableness in the rate resulting from the additional terminal charge as to any territory. As to reasonable charges for extra hazard to carrier in live-stock shipments, see 10 I. C. C. R. 327, and 333.

A railroad company accustomed to deliver cars of cattle at stockyards off its line by transporting them over a line belonging to a stockyards company, for which it pays a fixed sum per car, was held in Walker v. Keenan, 19 C. C. A. 668 and 73 Fed. 755, by the circuit court of the United States, seventh circuit, to be under no obligation to consignees whose business was located at the stockyards to supply unloading facilities at its own stations in a different part of the state, and hence was not bound in default thereof to deliver at the stockyards without a separate charge. It could on posting schedules to that effect, as required by section 6 of the Interstate Commerce Act, make a charge for the freight to the station and a separate terminal charge of a fixed sum per car for delivery to the stockyards. Reversing 64 Fed. 922 (1896).

The subject of terminal charges for delivering car loads of live stock was considered by the supreme court in Interstate Commerce Commission v. Stickney, 215 U. S. 98, 54 L. Ed. p. 112 (1909), where the court, affirming 164 Fed. 638, held that a terminal charge for delivering car loads of live stock at the Union Stock Yards, at Chicago, a point beyond the carrier's line, if in itself just and reasonable and separately stated in the tariff schedules as required by the act, could not be condemned on the ground that if taken with the prior charges of transportation of the carrier or connecting carriers, it made a total charge unreasonable. The carrier was entitled to have a finding that any particular charge was unreasonable and unjust before it is required to make a change and that for any services that it may render or procure to be rendered off its own line or outside the mere matter of transportation of its own line, it may charge and receive compensation. The court, therefore, affirmed the circuit court in enjoining the enforcement of the order of the Interstate Commerce Commission, requiring the reduction of the terminal charge from two dollars to one dollar per car.

8 154, Refrigeration in transit.-Irrespective of the requirements of the Interstate Commerce Act, it is the duty of the carriers undertaking the transportation of perishable traffic requiring refrigeration in transit to provide ice and facilities for such transportation in connection with the traffic; and the charges therefor are charges in connection with the service and are subject to the requirement of reasonableness contained in this section as to interstate shipments. Adequate refrigeration was held to be an incident of seaworthiness under a bill of lading for ocean transportation of dressed beef. See Martin v. Southwark, 191 U. S. 1, 48 L. Ed. 65 (1904). See also the ruling of the commission, 6 I. C. C. R. 295.

Under the amendment of 1906 the charges for "ventilation, "refrigeration," or "ice" must be separately published as other charges in connection with transportation.

In Atlantic Coast Line v. Garaty, 166 Fed. Rep. 10 (1908), it was held by the circuit court of appeals of the fourth circuit that where the carrier had facilities for furnishing shippers of vegetables refrigerating cars to transport the same, which cars the carrier did not own as a part of its equipment and plant, and the shipper in reliance thereon had raised vegetables which required refrigerator cars for transportation to the market, he was entitled to recover damages sustained by the carrier's failure to furnish such cars for the transportation of plaintiff's vegetables on reasonable demand. The court in this case cited and relied on the ruling of the supreme court in Covington Stock Yards Co. v. Keith, 139 U. S. 129, 35 L. Ed. 73 (1891) where the court said the carrier must at all times be in proper condition both to receive from the shipper and deliver to the consignee according to the nature of the property to be transported as well as the necessities of the respective localities in which it is received and delivered.

It was held by the court of appeals of the eighth circuit in Knudson-Ferguson Co. v. Michigan Central Railroad Co., 148 Fed. 968 (1906), that a shipper could not recover in an action under section 8 an extra charge for icing service shown by the schedule, but separately, which had been collected from him, without proving that the charge was unreasonable.

The carrier is therefore bound to furnish refrigeration cars by reason of the common-law duty, but it can provide such cars

by purchase or lease, and if by lease, the lease can be made with one company. Charges for refrigeration of cars furnished should be published and adhered to, and in the transportation of the freight, the carrier must either furnish the ice for a reasonable price, or permit the shipper to do so. The exceptional conditions of refrigerator car service, such as the necessity for rapid transit, the expense of handling, the uncertainty of the crops, the frequent absence of return load, etc., are all factors to be considered in determining the reasonableness of the charges. The subject of reasonable charges and regulations in providing refrigeration has been considered by the commission in several cases. See the Georgia Peach Growers' Case, 10 I. C. C. R. 255, and 12 I. C. C. R. 178. In 20 I. C. C. R. 106, the Arlington Heights Fruit Exchange Case, the rates for icing service from California points were considered by the commission. The subject had become one of great importance through the enormous development of the business of transporting fruits from California and the southern points. In this case, on account of the difference of opinion as to the amount of ice required for refrigeration, the commission conducted a series of experiments to ascertain the fact. The commission found that the railroad charges for what is known as "standard refrigeration" of oranges in transit from California points east were not unreasonable; but that the pre-cooling charges made by the railroads were unreasonable, as those shippers who had devised and perfected the system of pre-cooling for shipment should not be compelled to pay for the privilege of using it more than a fair cost to the carrier for providing the additional facilities, which were not included in the ventilated car rate, with a fair profit; and it was therefore reduced from thirty dollars per car to not exceeding seven dollars and a half per car. The report in this case discussed in detail pre-cooling as done by the shipper, and as it may be by the carrier, as well as standard refrigeration in transit. In the Georgia Fruit Exchange Case, 20 I. C. C. R. 623, the commission considered the actual condition of Georgia peaches as offered for refrigerator transportation, and ruled that without pre-cooling, satisfactory refrigeration was only possible for a portion of the carload required under the tariffs of the railroad.

It seems from the investigations of the commission in these