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CASES CITED.

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Advances in Rates, Eastern Case--20 I. C. C. 243.
Advances in Rates, Western Case--20 I. C. C. 307..
Corpus Juris--vol. 10, page 67
C. Y. C.-vol. 36, page 1145.
Eastern R. R. Co. y. Littleford-237 U. S. 140.
Erie R. R. Co. v. Stuart-250 U. S. 465.
Field v. Clark--143 U. S. 649
Financial Investigation, N. Y. N. H. & H. R. R. Co.-31 I. C. C. 33
Intermountain Rate Cases--234 U. S. 476...
I. C. C. v. Baird-194 U. S. 25, 44..
I. C. C. v. Goodrich Transit Co.-224 U. S. 207,
I. C. C. v. T. & N. R. R. Co.-227 U. S. 88.
I. C. C. v. Railway Co.--167 U. S. 479, 499.
I. C. C. v. Union Pac. R. R.--222 U. S. 541, 547.
Louisville Cement Co. v. I. C. C.-246 U. S. 638.
McGrew Coal Co. v. Mo. Pac. Ry. Co.—217 S. W. 984..
Meeker v. Lehigh Valley R. R. Co.--236 U. S. 412.
Mills v. Lehigh Valley R. R. Co.—238 U. S. 477.
Minnesota Rate Cases-230 U. S. 352
1920 Increased Rates Case-58 I. C. C. 220.
North Pacific Ry. Co. v. Solum-247 U. S. 447.
Ohio Valley Tie Co. v. T. & N. R. R. Co.—242 U. S. 288.
Spiller v. A. T. & S. F. Ry. Co.--253 U. S. 117.
Sutherland Statutory Construction-2nd Edition, pages 637-638.
The Fifteen Per Cent. Case-45 I. C. C. 303
The Five Per Cent. Case-32 I. C. C. 325
U. S. v. T. & N. R. R. Co.--235 U. S. 323.
U. S. v. Penn. R. R. Co.-242 U. S. 208.

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COMMENTARIES

ON

The Interstate Commerce Act

SECTION 1

See Appendix, Page 75, for text of both

the former and present Acts.

Section 1 of the act to regulate commerce, in so far as it describes the carriers that are subject to the jurisdiction of the Interstate Commerce Commission, has been rewritten.

The first paragraph designates the common carriers to whom the act applies, dividing them into three classes described in sub-paragraphs (a), (b) and (c). Sub-paragraph (a) defines the carriers of passengers and property over whom the Commission has jurisdiction, and in this respect there is no change from the old act. Sub-paragraph (b) defines the carriers of oil, or other commodities which are transported or may be transported by pipe line, or partly by pipe line, in connection with either rail or water transportation. Here there is a change that must have come about through typographical error or oversight. This sub-paragraph reads as follows:

(b) The transportation of oil or other commodities except water and except natural or artificial gas by pipe line or partly by pipe line and partly by railroad or by water.

The part of this to which attention is directed is the expression "or partly by pipe line and partly by railroad or by water.” The old act reads, "or partly by pipe line and partly by railroad, or partly by pipe line and partly by water." Under the wording of the new act the Commission plainly has jurisdiction over the transportation of oil by water, whereas its jurisdiction over the water transportation of other commodities or of persons under sub-paragraph (a) is confined to movements which are partly by railroad and partly by water where both are used under a common control management or arrangement for a continuous carriage or shipment. The Commission had no such jurisdiction over oil shipped by

5

water under the old act and this jurisdiction under the new act is due to the omission from the phrase, “or by water,” of the word, "partly.” Since there is no reason manifest on the face of the act why any different jurisdiction should be imposed upon the Commission respecting the water transportation of ordinary freight as distinguished from the water transportation of oil and since the Commission had no jurisdiction under the old act and since the new act in all other particulars is but a redraft of the old provisions, it would appear that in this particular the difference is due to typographical error and that the new act was intended to read, “or partly by water." It will be necessary, however, to amend this sub-section interpolating the word, "partly."

Sub-paragraph (c) applies to the transmission of intelligence by wire or wireless. There is no change in the substance here, but it might be remarked that the statement in the new act is a great improvement over the more detailed description in the old act, which was no niore inclusive or definite.

Paragraph 1 concludes with a description of the territorial jurisdiction in which there are important changes:

First. There is in the new act no reference to adjacent foreign countries; second, the jurisdiction of the Commission with respect to transportation from or to the United States to or from or through a foreign counry is specifically limited to such transportation only as takes place within the United States.

The old act provided "from any place in the United States to an adjacent foreign country." Under this provision the Commission was empowered to prescribe joint through rates from a point in the United States to a point in Canada, for instance, but it had no jurisdiction to prescribe a joint through rate from a point in Canada to a point in the United States. This latter jurisdiction, it is understood, was left by Congress to Canada under a gentlemen's agreement with Canada for reciprocity which was the basis for this provision of the old act. Having acquiesced in the right to fix the joint rate, the carriers had the right, under section 15 of the old act to require the Commission to fix the divisions of the joint rates which is had established. Likewise, not having the right to fix the joint through rates from Canada, the Commission had no jurisdiction to fix the divisions of American carriers participating in such rates with Canadian roads. The provision in the old act was intended as a legal expression of this gentlemen's agreement with Canada under which we accepted a certain jurisdiction to prescribe rates into Canada, for which in return we accorded her a similar jurisdiction within the confines of the United States. This provision of the old act was an attempt by Congress to extend the jurisdiction of the Commission beyond the territorial boundaries of this country and was illegal per se, if that phrase may be used. Its elimination in the new act is but another evidence of the clear legal-mindedness that advised these amendments.

The views just expressed should not be taken to indicate that it is thought impossible to enter into some arrangement with Canada on the one border and Mexico on the other, under which such a reciprocity might be inaugurated. Before there can be a delegation by Congress of such an extraterritorial jurisdiction to the Commission, Congress itself must have the power, and the only way it may acquire such a jurisdiction is by treaty with the respective border countries. There is no treaty with either Canada or England, nor with Mexico which so empowers Congress.

The new act also eliminates the following territorial description in the old act :

And also to the transportation in like manner of property shipped from any place in the United States to a foreign country, and carried from such place to a port of trans-shipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country.

This particular sentence has come down from the original act of 1887, but all that it means is that the Commission shall have jurisdiction within the territorial limits of the United States over transportation originating at or coming from foreign countries. Any attempt to give it a larger meaning has met with disaster, because such an interpretation would necessarily have the effect of declaring this provision of the old act itself illegal. For it there has been substituted in the new act the simple statement :

Or from or to any place in the United States to or from a foreign country, but only in so far as such transportation or transmission takes place within the United States.

The jurisdiction of the Commission, territorially, under the new act is confined, and rightly so, to the territorial limits of the United States.

Paragraph 2 of the amending act defines the limitations upon the Commission's jurisdiction and is subdivided into paragraphs (a), (b) and (c). Paragraph (a) eliminates the jurisdiction of the Commission over intrastate transportation of passengers and property, and (b) defines and excepts from the jurisdiction of the Commission the intrastate transmission of intelligence. These are redrafts of similar provisions of the old act and embrace no change in the substance. Sub-paragraph (c) is new. It excepts water carriers which "would not be subject to the provisions of this act except for the fact that such carrier absorbs, out of its port-to-port water rates or out of its proportional through rates, any switching, terminal lighterage, car rental, trackage, handling, or other charges by a rail carrier for services within the switching, drayage, or corporate limits of a port terminal or district."

This sub-paragraph, in connection with sub-paragraph (a) of paragraph 1, has the effect of limiting the Commission's jurisdiction over water rates to only such rates as apply for a joint rail and water haul where both the rail line and the boat are used “under a common control, management, or arrangement for a continuous carriage or shipment."

Whether or not a joint through rate participated in by rail carriers and an independent boat line for a rail and water haul is "a common arrangement for a continuous carriage or shipment” such that jurisdiction of the Commission over the boat line attaches is a question that may arise. A joint through rate necessarily presupposes a through route. The charges applicable via a through route need not necessarily be stated as a joint rate. The through charge may be made up of certain proportional rates applicable only to through movements. The charges of the independent boat line, a party to a through rail-and-water route, may be stated as a proportional rate. If its charges are so stated, it would seem under subparagraph (c) of paragraph 2, above quoted, that the boat line is excepted from the jurisdiction of the Commission, else why should the phrase "or out of its proportional through rate” have been referred to? If the Commission is without jurisdiction when the boat line's part of the charges is stated as a proportional rate, can the Commission be held to have jurisdiction over the independent boat line when the charges applicable to the through route are stated as a joint rate? Jurisdiction based on any such distinction in the form in which the charges are stated must be doubly unstable when that jurisdiction itself can in every instance be defeated by the restatement of all joint rail and water rates between rail lines and independent boat lines, as combinations of proportional rates.

It would appear, therefore, that the "common arrangement" in mind as expressed in these two provisions of the amended act is an operating arrangement as distinguished from a tariff arrangement. The boat line and the rail line, it would seem, participating in a continuous shipment or carriage must be operated under a common control, management or arrangement before the jurisdiction of the Commission attaches. See also page 70, discussing paragraph 5, section 25. But see also, I. C. C. vs. Goodrich Transit Co., 224 U. S. 207.

Paragraph 3, of the amending act, defines the terms "common carrier," "railroad" and "transportation" pretty much as they were defined in the old act. There are some additions included to avoid perhaps any further doubt, but it seems to be generally admitted that these matters which have been specifically included were by analogy heretofore included. For instance, the term “railroad” now includes “all bridges, car floats, lighters and ferries,” whereas under the old act only “bridges and ferries" were mentioned. The new act also defines the term “transmission.”

It might be noted in passing that the Commission does not receive jurisdiction over private car companies. Just how far the private cars of these private car companies will be subjected to distribution for the general

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