If the carrier, whose duty it is to furnish vehicles of transportation, cannot afford to do so impartially for all its patrons engaged in like business, the ordinary shipper is likely to be less able to afford it, and cannot be required to perform the carrier's duty. He might as well be asked to furnish motive power as vehicles of carriage. The carrier can not transfer his own responsibility to the shipper. The duty to furnish impartial transportation cannot be evaded on any pretext. It is fundamental and imperative. The mode of doing so, in the absence of specific legislation, is in the discretion of the carrier, subject to the obligation that rates shall be equal and reasonable. The particular manner in which rates shall be equalized for the transportation of oil in tanks and in barrels is in the first instance for the carriers themselves to determine. But this they have as yet failed to do. It is idle to pretend that it is not discrimination to charge for the weight of barrels and not for the weight of tanks, or in other words for only net weight in one case and for both dead and net weight in the other case. At a difference of $3.40 a car-load, the difference to the complainants upon a monthly shipment of 200 car-loads is $680, which the barrel shipper pays in excess of the tank shipper.

For transportation purposes both tanks and barrels are only packages in which the oil is carried. The tank, as the Commission has said, is part of the car, and for purposes of rates, in the absence of any other mode of equalization by carriers, the barrel should be deemed part of the car. The carrier furnishes neither tanks nor barrels. Both are furnished by the shipper. The carrier hauls the tank free of charge and pays the shipper for its use. But he pays the barrel shipper nothing for the use of the barrels, and charges for the transportation. The Commission has said that this is a disadvantage to the one class of shippers. It might have said more, and if the point had been presented for decision probably would have done so. It is now adjudged that it is unjust discrimination.

The correction of this discrimination requires that in the transportation of oil in car-loads, barrels as well as tanks, shall be regarded as only a means of carriage

of the commodity, and that the rates shall be imposed upon the commodity only and not upon the barrel package, where a carrier uses both modes and hauls tanks free. The Commission in former cases has determined that the rate shall be based upon the hundred pounds, and it is now decided that when oil is carried in barrels in car-loads in competition with oil in tanks the weight of the barrel shall not be included for purposes of rates, but oil and its products carried in barrels must in respect to rates be upon an equality with oil and its products carried in tanks.

There is no injustice in this of which the carrier can rightfully complain. The situation is created by the carrier itself, and the rule of equality of charges is only an application of the principle that a carrier shall not take advantage, nor suffer advantage to be taken, of a condition of its own creation.

This point was considered in the case of the Business Men's Association of Minnesota v. Chicago, St. Paul, Minneapolis & Omaha Railroad Company, 2 I. C. C. Rep. 65, and the distinctions to be observed in respect to the nature of dissimilar circumstances and conditions clearly pointed out. It was said, in substance, that when a carrier claimed to act under a compulsion of circumstances and conditions of his own creation or connivance in the making of an exceptional rate, this could not avail him; or if he claimed a compulsion which he could obviate by reasonably fair and just exertion on his part, in the making of an exceptional rate, this could not avail; but that if the carrier, acting in good faith, under a compulsion of circumstances and conditions beyond his control, not of his connivance and which he could not obviate by any reasonable fair and just effort on his part, and to avoid overwhelming loss, adopts exceptional rates, then the law may justify him in doing so.

The adoption of cars of peculiar construction better adapted for carrying oil, whose use is limited to shippers who furnish them, and the inability or disinclination of a carrier to furnish like cars for other patrons in the same business, cannot impair or excuse its legal obligation to perform impartial service for all its patrons. Nor is the duty affected by the cir

cumstance that the barrel package belongs to the shipper, and may have a value as merchandise. In the carriage of oil the barrel is not shipped as merchandise but as a package or means of transportation of the oil. It is not understood on any evidence before the Commission that the shipper of oil in barrels receives any compensation for his barrels in addition to the price of the oil, but it is understood that the empty barrels are in general returned to the shipper at his expense. This, at least, appears upon evidence to be the case in respect to the shipments made over the respondent's road. There are other circumstances connected with the carriage of oil in barrels tending to give the carrier revenue from the car carrying barrels not earned by a tank car. The box car may carry a return load, but in the section of country now in question there can be no return load for a tank car. Besides, the carrier pays a sum in the nature of a rental for the use of the tank car, whether loaded or empty. And, as has been shown in the statement of facts, the dead weight of an ordinary tank car is not materially different from the ordinary box car used for oil, with the weight of the barrels added, although the fact is not important upon the question

of rates.

A few citations may here be made from previous opinions of the Commission in support of the views expressed. In the Case of Rice, before cited, it is said: "The carriers do not provide accommodations for the two methods of transportation; they provide them for one method only, and in doing so they fall short of what, in respect to all other kinds of traffic, is practically the universal custom. It is from this fact that the oppression complained of in these cases springs. The carriers offer no choice to their customers; they fail to provide for the general use of all who may desire it the rollingstock for transporting, in the way they say is most profitable to themselves, this very large traffic; but they give to the dealers who will perform this duty for them rates so favorable as to put those who adopt the only method the carriers provide at such disadvantage as to preclude successful competition." (1 I. C. C. Rep. 543.) Again: "The carrier has no right to hire rolling-stock and then allow it to be used exclu

sively by one class of persons on such terms as will drive out of business those who are compelled to use its own rollingstock in a competitive traffic. . The tank cars which are furnished to the carrier by shippers, whether the use is paid for or not, ought properly to be held for the use of all; but if this is found impracticable, it is very certain and very obvious that proprietorship of the car for the use of which the carrier pays, as it generally does, can fairly entitle the owner to no special consideration in the making of rates." (1 I. C. C. Rep. 548.)

Again: "We hold, therefore, that the fact that one consignor furnishes a car for hire to the railroad company for the transportation of his oil is no ground whatever for a discrimination in rates in his favor against another consignor who must ship in the cars the carrier supplies." (1 I. C. C. Rep. 549.) And again: "We find, then, on a careful review of the testimony in this case and after full reflection, that no sufficient reason is shown to justify the defendants making a distinction in their charges as between the parties employing the two different modes of carriage. We hold that when transportation is in car-load lots the same charge by the hundred pounds should be made upon all consignments from and to the same points." (1 I. C. C. Rep. 552.) The language in respect to barrels, before quoted, follows in this connection.

In the Scofield Case it is said: "The preference thus given to oil shipped in tank cars as against oil shipped in stock cars in car-load lots, is, we think, unlawful, and must be regarded as forbidden by the Act to regulate commerce. The defendant should carry the same weight for the same price in the one car as in the other, and the rate should be made by the hundred pounds instead of by the barrel. The tank is indeed the car, but in renting it from the shipper to haul his own oil the carrier pays him for furnishing a package for the oil, charges him nothing for the increased dead weight of the tank over and above that of the stock car, which upon an average is one thousand pounds. and pays him rental for hauling the empty tank car back to him as part of the transaction." (2 I. C. C. Rep. 114.) Again: "There appears to be no law that prevents a carrier in the course of his business

from arranging with the shipper to furnish cars for the shipment of his own goods at terms agreed upon between him and the carrier, but in every such transaction the carrier, at his peril, must see to it that neither directly nor relatively must a better rate be given to such shipper than to others engaged in the same business and making shipments of the same kind of goods who are dependent on the carrier for cars. From this it follows, as we decided in Rice's Case, that the carrier must make the same rates on oil, whether shipped in car-load lots in tanks or car-load lots in barrels." (2 I. C. C. Rep. 115.)

In a subsequent memorandum issued by the Commission, entitled "In the Matter of Relative Tank and Barrel Rates on Oil," 2 I. C. C. Rep. 365, it was declared that the action of the carriers from the Pennsylvania oil fields, adding the weight of the barrels to the weight of the oil for rate purposes, instead of continuing to make an equal rate upon quantity whether carried in tanks or in barrels, was unwarranted by the decision in the Rice Case, and the change was pointedly disapproved by the Commission. No order was, however, made in that particular matter, as it was not a regular investigation, and the carriers have failed to comply with the suggestions there made.

It thus appears that, in charging for the weight of the barrels as well as the oil, the carriers that make use of both modes of transportation have disregarded the principles plainly and emphatically laid down by the Commission in the cases cited, and have paid no attention to the subsequent official memorandum explanatory of the decisions in those cases, but have persisted in maintaining a discrimination. against barrel shippers. An order requiring the discontinuance of the discrimination has therefore become necessary. And in making such an order the Commission is not embarrassed by any previous action on the subject. The nature of the questions in the former cases, the rules laid down and the unmistakable purpose the Commission had in view of equal charges for the different methods of shipment, have been sufficiently indicated. If the action heretofore taken has not been effectual to secure equality there is no legal bar