of railroad, or private side tracks, but it does require the carrier to construct, maintain and operate a switch connection with private sidetracks, etc., which have been constructed to connect with its railroad, provided such connection is reasonably practicable, can be put in with safety and will furnish sufficient business to justify construction and maintenance. 16 I. C. C. R. 587. Safety, practicability and an offer of sufficient business are the necessary elements to a demand for a switch connection, but the commission's jurisdiction can only arise upon a complaint filed after a demand in writing upon the carrier has been made.

It was ruled by the supreme court in McNeill v. Southern Ry. Co, 202 U. S. 543, 50 L. Ed. 1142, affirming 134 Fed. 82, in May, 1906, prior to this amendment, that a state commission had no authority to compel a carrier to deliver cars containing interstate shipments beyond its right of way to a private siding. Whether such an order, applicable only to state business, would be repugnant to due process of law under the constitution, was not decided. This amendment as enacted in 1906, made no provision for complaints by a lateral branch line railroad, but only by a shipper, and it was held by the supreme court in I. C. C. V. D. L. & W. R. R. Co., 216 U. S. 531, 54 L. Ed. 605 (1910), affirming 166 Fed. 498, that a complaint by a lateral branch line was not within the statute. The paragraph was amended, therefore, in 1910, so that it now provides for the making of such complaint by any shipper or owner of a lateral branch railroad.

The commission has ruled, 14 I. C. C. R. 191, that this provision of the statute does not grant plenary discretion to the commission as to the advisability of switch connections. It is subject to three conditions: (1) That the switch connection shall be reasonably practicable; (2) that it can be put in with safety; and, (3) that it will furnish sufficient business to justify the construction and maintenance of such switch connection. While retaining the right to control the location of the switching track of private industries in accordance with the evidence, the commission has said that it is disposed, in recognition of the risk that arises from such interruption of through rails, to leave the location of such tracks largely to the discretion and wisdom of the carrier. 12 I. C. C. R. 503. It has also ruled that the connection should be made at the expense of the party asking for the same. 12 I. C. C. R. 270. For history of commission's rul

ings, see 12 I. C. C. R. pages 193, 202 and 545; 18 I. C. C. R. 310; 20 I. C. C. R. pages 56 and 486; 21 I. C. C. R. 183.

§ 159. The establishment of through routes.-The amendment of 1906 made it the duty of the carrier to establish through routes and just and reasonable rates applicable thereto, and the amendment of 1910, added thereto: "and to provide reasonable facilities for operating such through routes and to make reasonable rules and regulations with respect to the exchange, interchange and return of cars used therein, and for the operation of such through routes, and providing for reasonable compensation to those entitled thereto."

This duty of establishing through routes that is thus imposed upon the carrier, should be read with the provision of section 15, as amended, infra, § 372.

§ 160. Classifications, regulations and practices.-The amendment of 1910 inserted as the fourth paragraph of section 1, a new legislative declaration of the law with respect to classifications of property and the regulations and practices of the carriers concerning tickets, receipts, bills of lading; the methods of presenting, marking, packing and delivering property for transportation; the facilities for transportation; the carrying of baggage of various kinds; and all other matters necessarily connected therewith. This clear announcement of the legislative intent has rendered obsolete the doubt sometimes expressed with respect to the jurisdiction of the commission over these matters. Prior to the passage of the Hepburn Act in 1906, the jurisdiction of the commission over these matters was limited by the fact that the commission had no authority to make rates, or what would be equivalent thereto, for the future. But wherever a classification resulted in an unjust or unreasonable charge under section 1, or in undue prejudice or discrimination under sections 2 and 3, the commission has always had jurisdiction and has asserted such power from the very first.

§ 161 (119). Charges must be reasonable and just. The last paragraph of the first section in its original form providing that all charges for any service rendered in the transportation of percons and property, shall be reasonable and just, and prohibiting

and declaring unlawful every unreasonable charge for such service, is only an affirmance of the common law. In England, a common carrier was bound to carry for a reasonable remuneration as he was bound to carry all persons and property offered for transportation and suitable to be carried, though it was not uniformly held that the carrier was bound to carry for all at the same rate. In the Maximum Rate case, 167 U. S. 479, 42 L. Ed. 251 (1897), the supreme court said that this section was a simple enactment of the common law requirement, and that for more than a hundred years it had been the affirmative duty of the courts to execute and enforce the common law requirement that all charges should be reasonable and just. This requirement of reasonableness grew out of the relation of the carriers' occupation to the public as was declared in the Granger cases, 94 U. S. 113, 24 L. Ed. 77 (1877), where the court said that the carrier must carry when called upon to do so, and that he could charge only a reasonable sum for the carriage, and in the absence of any legislative regulation upon the subject, the courts must decide, as they did for private persons when controversies arose, what is reasonable.

§ 162 (120). Practical difficulties in the enforcement of reasonableness in rates.-There are few if any cases wherein recovery has been had at law upon the common law liability of the carrier for charging excess over a reasonable rate. As said by the supreme court, in the Trans-Missouri case last cited, any individual shipper would in most cases be apt to abandon the effort to show the unreasonable character of the charge, because of the necessary expense of time and money to prove the fact, and the risk of incurring the ill-will of the road itself in all its future dealings with him.

Furthermore, the question of what is reasonable is one of fact, dependent upon the special circumstances of each case, and as these circumstances are changing from time to time, a rate which is unreasonable when paid, may become reasonable, through changed conditions, before the case is determined in the court of last resort, or even in the trial court. See conclusion of opinion in Smyth v. Ames, 169 U. S. 1. c. 549, 42 L. Ed. 819 (1898).

Another reason for the practical difficulty in the way of enforcement by shippers of this common law obligation of the carriers to charge only a "reasonable rate," lies not only in the

delay and expense of litigation, and in the small amount involved in the payment of the charge for any one shipment, but in the fact that a party paying the unreasonable charge without protest, in the absence of any mistake or fraud, was denied any right of action. But see Cook v. C. R. I. & P. R. Co., 81 Iowa, 551, and 9 L. R. A. 764 (1890), where held that payments made by shippers in ignorance of discrimination and after the assertion of the carrier that no lower rates were given, are not voluntary payments within the rule that they could not be recovered back.

Even assuming that recovery was had, the enforcement by different juries of their own standards of reasonableness,-for it must be in each case a question of fact at last,-would be necessarily destructive of the uniformity which is essential in any permanent regulation of transportation for both shippers and carrier. See remarks of Phillips, J., in Windsor Coal Co. v. C. & A. R. Co., 52 Fed. 716 (1892). It was suggested, however, by the United States court of appeals in Southern Pacific R. Co. v. Colorado Fuel & Iron Co., 42 C. C. A. 12, 101 Fed. 779 (1900), that it was impossible that a jury verdict would lead to a withdrawal of the rate adjudged unreasonable.

The above discussion as to the practical difficulties in the enforcement of reasonableness in rates has been rendered historical and academic by the amendments of 1906 and 1910, and by the construction placed upon the law by the supreme court in the Abilene Cotton Oil Case, 204 U. S. 426, infra, sec. 9 of act. This case involved:

The scope and effect of the act to regulate commerce upon the right of a shipper to maintain an action at law against a common carrier to recover damages because of the exaction of an alleged unreasonable rate, although the rate collected and complained of was the rate stated in the schedule filed with the Interstate Commerce Commission and published according to the requirements of the act to regulate commerce, and which it was the duty of the carrier under the law to enforce as against shippers.

The court unanimously held:

That a shipper seeking reparation predicated upon the unreasonableness of the established rate must, under the act to regulate commerce, primarily invoke redress through the Interstate Commerce Commission, which body alone is vested with power

originally to entertain proceedings for the alteration of an established schedule, because the rates fixed therein are unreasonable.

In discussing the reasons why concurrent jurisdiction as to the propriety of rates under the act could not be had between the courts and the commission, the court said:

"For if, without previous action by the commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that unless all courts reached an identical conclusion a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, dependent upon the divergent conclusions reached as to reasonableness by the various courts called upon to consider the subject as an original question. Indeed the recognition of such a right is wholly inconsistent with the administrative power conferred upon the commission and with the duty, which the statute casts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed.'

§ 163 (121). Standard of reasonableness under state statutes. Under state statutes re-asserting this common law requirement of reasonableness and providing for the publication of tariffs and charges and their submission to and approval by state commissions, it has been held that the common law right is superseded by the statute and that there can be no recovery for alleged unreasonableness in the charges thus published and approved, as the published rates will be conclusively presumed to be reasonable. Young v. Kansas City, St. J. & C. B. R. Co., 33 Mo. App. 509 (1889); Windsor Coal Co. v. C. & A. R. Co., supra; MeGrew v. Missouri Pacific R. Co., 114 Mo. 210 (1893); Railroad Co. v. People, 77 Ill. 443; Sorrell v. Railroad Co., 75 Ga. 500; Burlington, C. R. & N. R. Co. v. Dey, 82 Iowa, 312. In the latter case, in answer to the claim that the commissioners' rate would not secure the accused from conviction, if it was excessive, the court Isaid that the state would be precluded from denying that the rate was reasonable.

§ 164 (127). Standard of reasonableness under the act.-The principle whereon these decisions concerning state statutes were