Графични страници
PDF файл
ePub

the systems were not necessarily illegal, the illegality, if existing, arising from the application of the systems.

Generally speaking, competition may force a lower rate at one point than at another. What competition must be considered and the force that must be given thereto present questions having the difficulties which accompany the determination of all questions relating to making or judging rates. Definite water competition is a fact which carriers may consider, and water competition at one point which forces a low rate thereat may be met by a carrier without being compelled to accord the same low rate to another point where no such competition exists.197 But, "every city is entitled to the advantage of its location and may not lawfully be subjected to high freight charges merely because carriers, for reasons of convenience or otherwise, include it with a number of other points in surrounding territory which latter points are not similarly situated."198 Carriers cannot of their own initiative, nor can they be compelled, "to equalize natural advantages. "199 It must be understood, in this connection, that the long-and-short-haul provision of the fourth section of the Act may operate, if relief therefrom is not granted by the Interstate Commerce Commission, to prevent recognition of competition by a carrier if the circumstances are such as to make such provision applicable.

In speaking of group rates, the Commission said:

"When general rate adjustments in and between large territories, which contemplate substantial justice between all shippers generally, result in individual instances of disproportionate inequality, they fail in their purpose to that extent, and their strict observance in such cases upon no other ground than the arbitrary theory of their existence, should

197 Int. Com. Com. v. Alabama M. Ry. Co., 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45; Int. Com. Com. v. Louisville & N. R. Co., 190 U. S. 273, 47 L. Ed. 1047, 23 Sup. Ct. 687; Int. Com. Com. v. Western & A. Ry. Co., 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512; Columbia Grocery Co. V.

Louisville & N. R. Co., 18 I. C. C. 502.
198 Corporation Com. of North
Carolina v. Norfolk & W. Ry. Co., 19
I. C. C. 303, 307.

199 Elk Cement & Lime Co. V. Baltimore & O. R. Co., 22 I. C. C. 84,

88.

yield to the extent necessary to prevent gross injustice, just as many other general rules are necessarily subject to exceptions. "200

The report of the Commission in the Carrollton Board of Trade case,201 discusses the general subject and holds that distance is a fact requiring consideration.

This system, following a series of decisions by the Interstate Commerce Commission under the 1910 Amendment, has practically ended in the southeast.202

[ocr errors]

§ 194. How Far a Rate Made by a State Relieves a Carrier from the Duty to Serve Communities and Transport all Traffic with Legal Equality. That discrimination which the statute prohibits may result from the fact that state-made rates applying within a particular state are lower than interstates rates applicable to interstate shipments which are made to compete with like shipments moving under intrastate rates. If Congress has no power to prohibit discrimination when one class of the discriminatory rates is made by a state, there could be the most injurious discrimination from which no remedy would exist. This and similar arguments influenced the Commission in the Shreveport case to direct the carriers there defendant to remove an unlawful discrimination resulting from rates prescribed by the Railroad Commission of Texas. Such an order the courts held was valid.203

The doctrine of the Shreveport case has become the accepted

200 Alpha Portland Cement Co. v. Baltimore & O. R. Co., 22 I. C. C. 446, 449; Kaufman Commercial Club v. T & N. O. R. Co., 31 I. C. C. 167; Coffeyville Commercial Club v. A. T. & S. F. R: Co., 33 I. C. C. 122, 34 I. C. C. 231.

201 Board of Trade of Carrollton v. Central of Ga. Ry. Co., 28 I. C. C.

154.

202 Green v. A. & V. Ry. Co., 45 I. C. C. 662, 677. One of the most important of the decisions which resulted in the abolishment of the basing-point system in the Southeast is

Southern Class Rate Investigation, 100 I. C. C. 513. The system of rates prescribed in this decision laid the foundation for subsequent commodityrate revisions which, when completed, will result in destroying the last vestige of the old basing-point system.

203 Houston, E. & W. Ry. Co. v. United States-Shreveport case, 234 U. S. 342, 58 L. Ed. 1341, 34 Sup. Ct. 833, affirming Texas & P. R. Co. v. United States, 205 Fed. 380, and the order of the Commission in Railroad Com. of La. v. St. L. S. W. Ry. Co., 23 I. C. C. 31. See, also, Sec. 44, ante.

rule and the Transportation Act, 1920,204 has recognized the doctrine and prescribed rules of procedure for its enforcement, although, in such Act, Congress went somewhat further than the Interstate Commerce Commission and the Supreme Court had gone in the Shreveport case.

*

§ 195. Commutation, Mileage and Party-Rate Ticket.—Section 22 of the Act provides: "Nothing in this act shall prevent the issuance of mileage, excursion or commutation tickets." The right, however, to issue these special contracts for passenger travel is subject to the provisions of other sections of the Act requiring that all in similar situations shall be accorded like treatment. Commutation tickets must not be accorded to some and denied to others similarly situated.205

A dictum of Mr. Justice Holmes supports the conclusion that commutation tickets might be limited in their use to school children, while the opinion of the Commission seems to favor the opposite view.206 While the question is not free from doubt, the public purpose served, and the absence of damage to any one tends to justify a classification of school children for the purpose of conceding to them special commutation fares.

The Commission has said, "commutation tickets will benefit a large number of persons, without operating to the undue prejudice of others. '207 It is not an unjust discrimination to give lower rates for each individual when several travel on one ticket than is accorded each individual traveling alone.208

§ 196. Rebates.-A rebate within the meaning of the Interstate Commerce Act means the acceptance by a common carrier of a rate less than that provided for in its tariffs of

204 Transportation Act, 1920; Sec. 486, post.

205 Commutation Tickets to School Children, 17 I. C. C. 144; Re Restricted Rates, 20 I. C. C. 426; Commutation Rate Case, 21 I. C. C. 428; Bitzer v. W. V. Ry. Co., 24 I. C. C. 225.

206 Interstate Ry. Co. v. Massachusetts, 207 U. S. 79, 52 L. Ed. 111,

28 Sup. Ct. 26; affirming Commonwealth V. Interstate Ry. Co., 187 Mass. 436, 73 N. E. 530; Commutation Tickets to School Children, 17 I. C. C. 144.

207 St. Louis, Mo. Illinois Passenger Fares, 41 I. C. C. 584, 600, 601. 208 Int. Com. Com. v. B. & O. R. Co., 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844, 4 I. C. R. 92.

charges. The most frequent method of rebating was for the carrier to exact the full tariff charge and afterwards "rebate" or pay to the shipper a portion thereof. This rebate was sometimes effected under the guise of a claim for damages by the shipper. In whatever form, whether openly or by the most ingenious and complicated device, all rebates are illegal and punishable under the Elkins law. The desire to obtain equality to shippers and to prevent favoritism was probably the strongest reason for the enactment of the original Act to Regulate Commerce. By the unjust and preferential payment of rebates the incomes of carriers were dissipated and the unfortunate shipper who received no rebates had his business destroyed, while his more favored competitor thrived. The views of the Supreme Court, through Mr. Justice White, in an important case,209 are apposite here:

"It cannot be challenged that the great purpose of the act to regulate commerce, whilst seeking to prevent unjust and unreasonable rates, was to secure equality of rates to all and to destroy favoritism, these last being accomplished by requiring the publication of tariffs and by prohibiting secret departures from such tariffs, and forbidding rebates, preferences, and all other forms of undue discrimination. To this extent and for these purposes, the statute was remedial, and is, therefore, entitled to receive that interpretation which reasonably accomplishes the great public purpose which it was enacted to subserve. The all-embracing prohibition against either directly or indirectly charging less than the published rates shows that the purpose of the statute was to make the prohibition applicable to every method of dealing by a carrier by which the forbidden result could be brought about. If the public purpose which the statute was intended to accomplish be borne in mind, its meaning becomes, if possible, clearer."

*

*

Mr. Justice Day, after quoting the above remarks in the Armour Packing Co. case,210 said:

"The Elkins act proceeded upon broad lines and was evi

209 New York, N. H. & H. R. Co. v. Interstate Com. Com., 200 U. S. 361, 391, 50 L. Ed. 515, 521, 26 Sup. Ct. 272, 277.

210 Armour Packing Co. v. United States, 209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428.

dently intended to effectuate the purpose of Congress to require that all shippers should be treated alike, and that the only rate charged to any shipper for the same service, under the same conditions, should be the one established, published, and posted as required by law. It is not so much the particular form by which or the motive for which this purpose was accomplished, but the intention was to prohibit any and all means that might be resorted to to obtain or receive concessions and rebates from the fixed rates, duly posted and published."

Emphasis was given to these principles by the Supreme Court in holding that land cannot be purchased and paid for by conceding to the grantor a rebate although the amount of the rebate is less than the value of the land. Said Mr. Justice Lamar in the opinion of the court: "The commerce act prohibits the payment of rebates, and its command cannot be evaded by calling them differentials or concessions, nor by taking the money from the railroad itself or from a company that is proved to be the same as the railroad. ''211

The law applies to demurrage charges,212 and each distinct shipment, transportation or transaction constitutes a separate offense.212-(1)

The venue of suits in prosecutions for granting rebates is in any federal district through which moves the transportation on which the rebate is paid.213

When no joint tariff is filed, the sum of the local rates is the valid through rate, and a carrier who issues a through bill

211 Fouche River Lumber Co. v. Bryant Lumber Co., 230 U. S. 816, 57 L. Ed. 1498, 33 Sup. Ct. 887, citing Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 55 L. Ed. 397, 31 Sup. Ct. 265, 34 L. R. A. (N. S.) 671; United States v. Lehigh Valley R. Co., 220 U. S. 257, 55 L. Ed. 458, 31 Sup. Ct. 387; United States v. Union Stock Yards Co., 226 U. S. 286, 57 L. Ed. 226, 33 Sup. Ct. 83, and reversing Fouche Lumber Co. v. Bryant Lumber Co., 97 Ark. 623, 135 S. W. 796.

212 Lehigh Valley R. Co. v. United States, 188 Fed. 879, affirming United States v. Philadelphia & R. Co., 184 Fed. 543, and United States v. Lehigh Valley R. Co., 184 Fed. 546.

212-(1) United States v. Standard Oil Co., 192 Fed. 438; New York C. & H. R. R. Co. v. United States, 212 U. S. 481, 53 L. Ed. 613, 29 Sup. Ct. 304.

213 See Note 188, ante, this Chapter.

« ПредишнаНапред »