The Panama Canal Act, as shown in the preceding section, extended the power of the Commission over transportation by water and also gave the Commission power to establish through routes and maximum joint rates between and over such rail and water lines, and to determine all the terms and conditions under which such lines shall be operated in the handling of the traffic embraced.18 The Amendment of June 18, 1910, omitted from the statute the words, "provided no reasonable or satisfactory through route exists." Under the old law, the non-existence of a reasonable or satisfactory through route was jurisdictional, and where there was such through route the Commission had no power to order another.10 Under the old law it was said: "It may be laid down as a general rule, admitting of no qualification, that a manufacturer or merchant who has traffic to move and is ready to pay a reasonable rate for the service, has a right to have it moved and to have reasonable rates established for the movement regardless of the fact that the revenues of the carrier may be reduced by reason of its competition with other shippers in the same market; and he has the right also to have the benefit of through routes and reasonable joint rates to such distant markets if no reasonable or satisfactory through route already exists.20 A limitation as to the character of the through route was prescribed by the Amendment of 1910 by the provision that 222; Southern California Sugar 20. Cardiff Coal Co. v. Chicago, M. & St. P. Ry. Co., 13 I. C. C. 460. As sustaining the text see P. R. Co. v. United States, 236 U. S. 351, 59 L. Ed. 616, 35 Sup. Ct. 370. no company without its consent should be required to embrace in such route substantially less than the entire length of its railroad and of any intermediate railroads operated in conjunction and under a common management or control therewith."1 By the Transportation Act 1920 this limitation does not apply when one of the carriers is a water carrier.22 23 While the limitation is stated positively, a carrier could not use it to discriminate in violation of other provisions of the Act, nor is it a protection to the carrier in charging an unreasonable rate between two given points. It means that a carrier shall not be deprived of a haul which it is capable of providing by a reasonably direct route." Other than this limitation under the law as it now exists, the Commission has discretionary power." The Commission refused to establish a through route with tugs and barges operated by the owner of practically the whole freight which would use the route if one were established; but the mere fact that only one shipper may at the outset use the connection, does not prevent the connection from having a public purpose." 26 27 The Commission having no jurisdiction of railroads and steamship lines located, owned and operated entirely in an adjacent foreign country, cannot establish through routes therewith.28 21. Sec. 401, post, for full text of provision. 22. Transportation Act 1920, Sec. 418; Int. Com. Act, Sec. 15, par. 4. 23. Proposition urged but not decided, Hughes Creek Coal Co. v. Kanawha & M. Ry. Co., 29 I. C. C. 671, 679. 24. Meridan Fertz. Factory v. Texas & Pac. Ry. Co., 26 I. C. C. 351, 352. 25. Truckers Transfer Co. v. Charleston & W. C. Ry. Co., 27 I. C. C. 275, 277, quoting the Commerce Court in Crane Iron Works v. United States, 209 Fed. 238, Commerce Court Opinion No. 55, p. 453, 461, not appealed. For report of the Commission in the same case see: Crane Iron Works v. Central R. Co. of New Jersey, 17 I. C. C. 514; and Crane R. Co. v. Philadelphia & R. Ry. Co., 15 I. C. C. 248. 26. Gulf Coast Navigation Co. v. Kansas City Sou. Ry. Co., 19 I. C. C. 544. 27. Union Lime Co. v. C. & N. W. Ry. Co., 233 U. S. 211, 58 L. Ed. 924, 34 Sup. Ct. 522; Federal Sugar Refining Co. v. C. of N. J. Ry. Co., 35 I. C. C. 488. 28. Humbolt Steamship Co. v. Agreements between connecting railway and steamship carriers to establish through routes and joint rates and to refuse such an arrangement with other connecting carriers, resulting in high and discriminatory charges, with the intent and result of eliminating competition, violates the anti-trust laws of the United States. Whether or not the giving or refusing joint traffic arrangements is in violation of the commerce acts, is a question which the courts have no jurisdiction to determine in advance of action by the Interstate Commerce Commission." The broad purpose of this provision is well stated by the Commission as follows: "The railroads of the country are called upon to so unite themselves that they will constitute one national system; they must establish through routes, keep these routes open and in operation, furnish the necessary facilities for transportation, make reasonable and proper rules of practice as between themselves and the shippers, and as between each other.'' 30 A carrier publishing a joint through rate is responsible therefor." Electric railways are entitled to through routes. and joint rates."" § 196. Division of Joint Rate.-When joint rates are established by order of the Commission, or otherwise, and carriers fail to agree among themselves upon the apportionment or division thereof, the Commission may, after hearing, prescribe the just and reasonable proportion of such joint rate to be received by each carrier party thereto." Speaking of this power White Pass & Yukon Route, 25 29. United States v. Pacific & Arctic Ry. Nav. Co., 228 U. S. 87, 57 L. Ed. 742, 33 Sup. Ct. 443. 30. Missouri & Illinois Coal Co. v. Illinois Cent. R. Co., 22 I. C. C. 39, 45. Il 31. Black Horse Tob. Co. v. linois Cent R. Co., 17 I. C. C. 588; Texico Transfer Co. Louisville & N. R. Co., 20 I. C. V. 32. Louisville Board of Trade v. Indianapolis, C. & S. T. Co., 27 I. C. C. 499, and cases cited. That a through route could not be made with the Columbus Traction Co. was placed on the ground that such company was not a lateral branch road. United United States v. Baltimore & O. R. Co., 226 U. S. 14, 57 L. Ed., 104, 33 Sup. Ct. 5. 33. Secs. 397, and 400, post. Mr. Commissioner Harlan, delivering the opinion of the Commission, said:" "The phrase 'the just and reasonable proportion of such joint rate to be received by each carrier' necessarily implies that it is the duty of the commission in fixing divisions to take into consideration all the circumstances, conditions, and proper adjustment of the situation as between the two roads, and precludes the idea that joint rates must be divided between the participating carriers on a mileage or any other fixed basis." In note 34, supra, the opinion was expressed in the second edition of this book that the Commission was competent to prescribe divisions of rates even though the rates had not been established by it. At first the Commission did not take this view, but subsequently it adopted the correct view.35 The Transportation Act 1920 specifically gives the Commission the power which it had already come to hold that it possessed. 36 § 197. Allowance to Shippers for Services and Facilities.— The statute reads:" 37 "If the owner of property transported under this Act directly or indirect1y renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is 34. Star Grain & Lumber Co. v. Atchison, T. & S. F. Ry. Co., 14 I. C. C. 364, 370. Without giving force to the words "or otherwise" in the statute the Commission expressed a doubt as to its power to prescribe divisions of rates not fixed by it. Re Wharfage Charges at Galveston, 23 I. C. C. 535, 546. Giving force to all the words of the statute there seems to be no room to doubt the jurisdiction of the Commission in all cases where there is a failure of the carriers to agree. 37 I. C. C. 231. 35. Morganton & Kingwood Divisions, 40 I. C. C. 509, 49 I. C. C. 540. For cases illustrating the exercise of the power see Western P. R. Co. v. S. P. Co. 55 I. C. C. 71; Chestnut Ridge Ry. Co. v. United States 247 Fed. 791. 36. Transportation Act 1920, Sec. 418; Int. Commerce Act Sec. 15, par. 6. 37. Sec. 15 being added thereto by Act June 29, 1906, post, Sec. 404. just and reasonable, and the Commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and to fix the same by appropriate order." This statute has received consideration in many cases. It is not open to question that when a shipper renders services connected with the transportation of his goods or furnishes any instrumentality used therein, a charge and allowance therefor is recognized by the law. This charge and allowance must be just and reasonable, that is, it must not be too high nor discriminate against another shipper rendering a like service or furnishing a like instrumentality." The Commission has held that this charge and allowance must be limited to the cost of the service.3 39 The Commission in the Sugar Lighterage case" did not deny the vadidity or application of the statute, but held the the fact that one sugar refinery owned and operated a dock and terminals for the railroad did not justify an allowance thereto when such allowance was denied another refinery owning no 28. Central Stock Yards Co. v. Louisville & N. R. Co., 67 Fed. 339; Railroad Com. of Kentucky v. Louisville & N. R. Co., 10 I S. 568, 48 L. Ed. 565, 24 Sup. Ct. Louisville & N. R. Co., 192 U. C. C. 173; Cattle Raisers Assn. v. Chicago, B. & Q. R. Co., 11 Ed. 73, 11 Sup. Ct. 461; Butchers, etc., Stock Yards Co. V. 35, 14 C. C. A. 290; United States v. Keith, 139 U. S. 128, 35 L. R. A. 213, affirmed, 192 U. S. I. C. C. 277; Central Stock Yards Co. v. Louisville & N. R. Co., 118 Fed. 113, 55 C. C. A. 63, 63 L. 568, 48 L. Ed. 565, 24 Sup. Ct. 339; Covington Stock Yards Co. v. Delaware, L. & W. R. Co. (C. C.), 40 Fed. 101; Consolidated Fordg. Co. v. Southern Pac. Co., 9 I. C. C. 182; Excursion Car Co. v. Pennsylvania R. Co., 3 I. C. C. 577; In re Transportation of Fruit, 10 I. C. C. 360; Peavey Co. v. Union Pac. R. Co. (C.C.) 176 Fed. 409, affirmed 222 U. S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22; Interstate Com. Com. v. Diffenbaugh, 222 U. S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22; Fouche River Lumber Co. v. Bryant Lumber Co., 230 U. S. 816, 57 L. Ed. 1498, 33 Sup. Ct. 887; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 57 L. Td. 1472, 33 Sup. Ct. 916. 39. Re Allowances to Elevators, 12 I. C. C. 85; Federal Sugar Refining Co. v. Baltimore & O. R. Co., 17 I. C. C. 40, 47. 40. Federal Sugar Refining Co. v. Baltimore & O. R. Co., 20 I. C. C. 200. |