& O. Railroad Co., 129 Fed. 753, where it was held that the carrier in his right to make reasonable regulations for the delivery of freight was not compelled to receive coal at a siding where merchandise other than coal was received, merely because the place was more acceptable to a shipper, when it had designated the siding for receiving coal and the siding was not an unreasonable place.

In another stockyards case, that of the Interstate Stockyards Co. v. Railroad Company, 99 Fed. 473, the court laid down the general proposition that a 'common carrier of interstate freight cannot lawfully deny switch connection and service to one person, place or locality, or kind of traffic, which it affords to others similarly situated." This question however must be construed in connection with the special facts of the case, the alleged discrimination being by a city belt line which was required under the city ordinance and state statute to grant switch connections to all persons and to render service in respect to all freight upon equal and impartial terms. This road was enjoined from discontinuing the receipt of live stock from from sidings which had been theretofore constructed and maintained.

Assuming that there can be no unjust preference in the refusal of switch connections unless the circumstances and conditions are similar, it is difficult to see how in any case the court can compel a carrier to construct and maintain such a siding for private use in its own right of way at its own expense. Nebraska v. Missouri Pacific Ry. Co., supra. There seems to be no case where either the commission or the court has enforced the construction and maintenance of such switch connections. See 7 I. C. C. R. 194, where such an application was unsuccessfully made. The carrier is not bound in every instance to furnish under legal compulsion the same terminal facilities for all descriptions of traffic. It is sufficient if reasonable provision is made in this regard, and what is reasonable in a given instance depends largely upon the conditions and surroundings of a particular locality. See 9 I. C. C. R. 61.

§ 263 (197). Undue preference in denying shippers the choice of route.-Another form of undue preference condemned by the commission is the practice of initial carriers in joint con

tinuous routes of reserving to themselves the exclusive control of the routing of freight, and denying to shippers any choice or control in the selection as between different established routes, the route being determined by the carrier's agents according as they may desire to distribute the shippers' business among one another from time to time or for any reason whatever. The commission ruled in the California Fruit case, 9 I. C. C. R. 182, that this practice was in violation of the statute, subjecting the shippers to undue and unreasonable prejudice and giving the carriers undue and unreasonable preference and advantage. See also 3 I. C. C. R. 658, 3 Int. Com. Rep. 33.

The United States circuit court for the southern district of California, in 123 Fed. 597, and 132 Fed. 829, sustained this view and ordered the enforcement of the order of the commission, and held that the agreement between the carriers constituted a traffic pool, violative of sec. 5 of the act. But this judgment was reversed by the supreme court, Southern Pacific Co. et al. v. Interstate Commerce Commission, 200 U. S. 536, 50 L. Ed. 585 (1906). The court said that the rule of the carriers where the right of routing beyond its own terminal was reserved to the initial carrier as a condition for guaranteeing through rates to the shipper, was not violative of sec. 3 or secs. 5 or 6 of the Interstate Commerce Act; that the rule was intended to break up rebating and that there was nothing in the act which prevented the carriers from agreeing upon a routing of the freight.

§ 264 (198). Undue preference in arbitrary division of territory. Another practice condemned by the commission as violative of the rights of shippers in creating undue preference was the arbitrary division of territory under the agreement of the Southern Railway and Steamship Association, 6 I. C. C. R. 195, whereunder the commission found that the rates on traffic of certain classes were made higher from Chicago and Cincinnati to southern territory than they otherwise would be, for the purpose of securing to the lines from the northeastern cities, transportation of that traffic from the territory set apart to them under the agreement, and that this raised the presumption of the unreasonableness of the rates in such territory. The commission found that this division of territory was without warrant in law and to have been made for the benefit of

carriers without regard to the interests of shippers in the territory, to whom it was in effect a denial of the privilege of shipping their goods to market by the line or route they may prefer. See also 8 I. C. C. R. 185, wherein the commission made a report on the export rates from points east and west of the Mississippi river, and said that it was neither sound in principle or equitable in practice for railroad lines to create artificial differential in the rates, whereby the product of one section is assigned to one market and the product of another section assigned to another market.

§ 265 (199). Rate wars and undue preferences.-The relation of rate wars to the reasonableness of rates was considered under section 1, supra, § 191, 2 I. C. C. R. 231 and 2 Int. Com. Rep. 137. In the rate war prevailing in the southern freight traffic in June and July, 1894, great disparities in rates were suddenly produced at intermediate points by the large reduction in rates to Knoxville at the commencement of this war. See 6 I. C. C. R. 632. The commission made an inquiry of its own motion. 7 I. C. C. R. 177; see also eighth annual report of the commission, 1894, pp. 20 to 24. The commission held that the maintenance of the usual rates to intervening points during the period of such reduced rates to the terminal points was an unwarranted discrimination and entitled the shippers from intermediate points to reparation for the excess paid by them duing such rate war. On the subject of passenger rates and rate wars, see also 2 I. C. C. R. 543 and 2 Int. Com. Rep. 340. These decisions of the commission were rendered especially in view of the long and short haul requirement of section 4, and prior to the ruling of the supreme court that railroad competition created a dissimilarity of conditions within the meaning of the section. The ruling however of the supreme court that the competitive rate must be remunerative (see supra, § 230, would of itself prevent the extreme reductions condemned by the commission.

As to undue preference and discrimination in passenger rates, see supra, section 2.

As to applications for injunctions in rate wars by carriers and shippers, see annual report of 1896, page 43.

For account of "rate war" injunctions filed by a competing

carrier, a trust company representing security holders of the carrier, and a complaining shipper during rate war betweer Seaboard Air Line and the Southern Railway Company in 1896, see annual report of commission for 1896, page 43.

§ 266 (200). Discrimination in kinds of traffic. The first paragraph of section 3 also prohibits any undue or unreasonable preference or advantage of any particular description of traffic in any respect whatever. It was held in the Oregon Short Line & U. N. R. Co. v. Northern Pacific Railway Co., ninth circuit, 9 C. C. A. 409, 61 Fed. 158 (1894), that this first paragraph of the third section forbidding discriminations against any locality or description of traffic is for the protection of the locality or traffic itself, and cannot be invoked by a carrier against a connecting carrier for alleged discriminations in the matter of requiring prepayment of freight and car mileage. The court said that it was not competent for a railroad company to appropriate the grievances of a citizen or locality under section 3 and complain on account of them.

Goods offered for shipment from a given point must be carried for the established rate from such point, in the absence of a though routing, regardless of the point where the goods originated. Bigbee Packet Co. v. M. & O. R. Co. (So. Dist. of Ala.), 60 Fed. 545 (1893); 4 I. C. C. R. 611, 3 Int. Com. Rep. 515.

Discriminations against kinds of traffic have been involved with discrimination against localities where the industries discriminated against are established, and especially when raw material and manufactured products are in any sense competitive. This is illustrated in the litigation resulting from the competition between the packing houses of Chicago and those which have been established in the stockraising section in the west where the industries located in Chicago are directly concerned in keeping down the rates on live stock to that point as compared with the rates on packing house products. See 4 I. C. C. R. 158, also 4 I. C. C. R. 611, 3 I. C. C. R. 515, and 10 I. C. C. R. 428, The commission made an order in this latter case brought on the complaint of Chicago Live Stock Exchange, prohibiting the carrier from charging higher rates for transporting cattle to Chicago from points west than for transorting live stock properties. The circuit court, northern district Illinois, after an exhaustive investigation, declined to enforce this order, 141

Fed. 1003, and the judgment was affirmed by the supreme court in 209 U. S. 108, 52 L. Ed. 705, in 1908. The court held that there was no presumption of wrong arising from a change of rate by a carrier nor was there any universal rule that the rate on raw material should not be higher than on the manufactured product. The cost of carriage and risk of injury might excuse a higher rate on live stock than on dessed meats and packing house products, and the reduction of the freight rates for packing house products did not work an undue and unreasonable preference when it was induced by competition and did not directly injure or influence the shippers of live stock. The court said in this case that the railroads were the private property of their owners, and while from the public character of the work in which they are engaged the public has the right to prescribe rules for securing faithful and efficient service and equality between shippers and communities, in no proper sense is the public a general manager, and it followed that the railroad companies could contract with shippers for a single transportation or for successive transportations, subject though it may be to a change of rates in the manner provided in the act; and in fixing their own rates, the carriers may take into account competition with other carriers, provided only that the competition is genuine and not a pretense. For subsequent, Oct. 1911, case of discrimination against packing house products in favor of live hogs, from Iowa points to the east, see 21 I. C. C. R. 490.

The same alleged discrimination between kinds of traffic and localities wherein the competing industries were located were shown in the complaint of the Missouri and Kansas millers against the differential between wheat and flour, where the discrimination operated in favor of the Texas mills as against the mills of Missouri and Kansas. See infra, § 269.

Questions of undue preference of kinds of traffic have been raised by manufacurers in respect to raw material and manufactured product for the protection of their local industries against competition, and also by the manufacturers of and dealers in commodities, which were commercially competitive, as anthracite and bituminous coal, 4 I. C. C. R. 535, 3 Int. Com. Rep. 460. This question of undue preference to particular kinds of traffic was also involved with the subject of carload and less than carload rates, supra, § 206. See 3 I. C. C. R. 473, 2 Int. Com. Rep. 742; 5 I. C. C. R. 638, 4 Int. Com. Rep. 285.