lar kind of

cars.

furnish tank-cars for the shipment of oil over its line was also supposed by the able and learned counsel for Commission the petitioners to be found in the first section of cannot compel the act to regulate commerce. The term "instru- carrier to furmentalities of shipment or carriage," as found in nish particu the first section of the statute, of course includes cars, but they are such cars as are provided by the carrier or used by it in interstate commerce, and the statute, nowhere clothes the Commission with power to determine what kind of cars the carrier shall use for this purpose and require the carrier to place upon its line for use in this business such kind and number of cars as the Commission may decide will constitute a proper and necessary equipment of car service. The duty of every such carrier is none the less obligatory at common law, and by its charter to furnish an adequate and proper car equipment for all the business of this character it undertakes and advertises in its tariffs it will do. The statute does not undertake to clothe the Interstate Commerce Commission with the power by summary proceedings of compelling a railroad company to perform all its common-law duties, but leaves many of these to be enforced in the courts by suits for damages and by other proceedings. This is apparent from the twenty-second section of the statute, in which it is declared that "nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by any statute, but the provisions of this act are in addition to such remedies." It is also apparent from the enumeration of powers conferred upon the Commission in the statute. The statute contains no provision requiring the carrier to keep its road-bed, bridges, and trestles at all times in good repair for the safe transportation of persons and property, nor any provision clothing the Interstate Commerce Commission with the power of requiring the carrier to do these things, but it is none the less obligatory upon the carrier by the common law and by its charter to do so. Other illustrations readily occur, but it is unnecessary to enumerate them.

The reference to "instrumentalities of shipment or carriage in the first section of the statute proceeds upon the assumption that every railway carrier will, from self-interest, as well as in obedience to the law, perform the plain duty to itself and to the public of providing proper and adequate car equipment for all the reasonable needs of its business. The power, if it should be held to exist at all, on the part of the Interstate Commerce Commission to require a carrier to furnish tank cars when that carrier is furnishing none whatever

in its business, would apply equally to sleeping cars, parlor cars, fruit cars, refrigerator cars, and all manner of cars as occasion might require, and would be limited only by the necessities of interstate commerce and the discretion of the Interstate Commerce Commission. A power so extraordinary and so vital, reached by construction, could not justly rest upon any less foundation than that of direct expression or necessary implication, and we find neither of these in the statute. The law-making power has not taken upon itself the responsibility, nor has it clothed the Interstate Commerce Commission with the power and the responsibility, of directing a carrier to supply itself with any particular equipment or cars, or, in fact, with any equipment or cars at all, for the transportation of freight over its line. The responsible duty of supplying itself with a sufficient and proper equipment of cars is left by the statute to rest with the carrier, to whom alone it rightfully belongs, and if the carrier fails to do this in such a manner as it should, whereby others are injured or wronged, then that the carrier shall be liable for all the damages which result from such failure.

rier to furnish

equipment as

The provisions of the statute in this respect are explicit. If the carrier is so far unmindful of its plain duty as not to furnish a reasonable and proper equipment for the Failure of car use of shippers over its line, and does this as a "device" to give one shipper who furnishes his a" device." own cars an unlawful preference in the rate, the the carrier incurs a severe penalty provided by the statute for enforcement in the courts. It is also liable for the whole amount of damages sustained in consequence of the violation of the statute, together with a reasonable counsel or attorney's fee to be enforced in the courts, and the violation of the statute, so far as the rate is concerned, can be corrected by complaint to the Interstate Commerce Commission, whose duty it is to notify and order the carrier to cease such unjust discrimination and to give equal rates to shippers. In these several modes of procedure the statute has provided ample remedies for the enforcement of this duty on the part of the carrier in different tribunals without clothing either of these tribunals with the power of directing the carrier what equipment or cars it shall furnish for the transportation of freight over its line. The wide field covered by these several remedies, and the sufficiency of them in each instance, shows that this whole subject must have undergone the most thorough and mature consideration of Congress in the enactment of the statute.

IV. Another phase of the statute is presented by this

rier.

proceeding, namely, that of the shipper furnishing in part his own cars. Long prior to and at the time the act Shipper furto regulate commerce was enacted there was a pre- nishing carsvailing general custom and usage among railroads Rental by carof the United States of renting cars from each other and from mere car-furnishing companies, paying rent for the use of such cars. A like custom and usage then prevailed and has since of the carrier paying rent to the shipper for cars occasionally furnished by the shipper for the transportation of his own goods. This amount in each instance then was, since has been, and is now three-fourths of a cent per mile. It is part of the legislative history of the country that Congress had pending before it for many years in various forms the general subjects which were afterwards enacted into the act to regulate commerce, and that all these matters were made the subject of lenghty and thorough examination by committees of Congress. We must, therefore, presume, as we heretofore have done, that Congress must have known at the time the statute was enacted of the existence of each of these customs and usages on the part of carriers for obtaining cars, and neither of them are forbidden by the statute. If the carrier had been forbidden by the statute from transporting freight over its line otherwise than in its own cars bulk would have necessarily been broken and cars unloaded by every railroad at the end of its line and there re-loaded into the cars of its connecting line, resulting in greatly increased delays and expense in the transportation of freight; and we can well understand why the statute contains no provision requiring the carrier to transport freight only in its own cars.

Rates must not be affected by custom.

The rule upon this subject, to which we have uniformly and steadily adhered, has been that the rate charged by the carrier must not be affected by either one of these customs and usages, but must be the same on all cars operated over its line, whether furnished. by the carrier or by others, just as though no custom or usage existed whereby the carrier obtained any of its cars from shippers or from car companies. The rate of three fourths of one cent per mile paid for the exchange of cars has seemed. to us, upon evidence repeatedly taken upon this subject, a reasonable allowance for the car's service, and has been the same very generally in all parts of the country. We have decided in other cases, as we do now in this proceeding, that the carrier at his peril must see to it in every transaction in which the shipper furnished the car for the transportation of his freight that such shipper shall not thereby receive a lower rate than other shippers who use and have to use

the cars furnished by the carrier in the shipment of their freight.

defendant to

violate the law.

The violation of the statute by which higher rates are charged on car-load lots in barrels than in tank does not appear to have been accomplished by any mere No intention or device." It seems to have been a lower charge device on part of on oil in tanks than in barrels, made directly without any "device" whatever, applying as well to the tank cars of the petitioners as to the tank cars of the Standard Oil Co. It was seriously and earnestly defended at the hearing before us by the defendant, and upon the testimony of learned and experienced witnesses, one of whom was its general freight agent, in whose judgment and intelligence the defendant had a right to rely in making these rates. That the error of the defendant in this respect resulted from a miscalculation of the elements that entered into the service of the two respective modes of shipment is apparent, and although, as we have said, it was a violation of law, yet upon the evidence it does not appear to have been accomplished with that intent, or by any "device" to reach that result. The evidence is strong and uncontroverted that while this result was occurring the defendant's agents and officers, under the repeated admonitions of its president, "to live up to the law and abide by it in all respects,' were endeavoring to do so and believed they were doing so. In a business involving so many elements of complication, as that of transporting freight over railroads in cars wholly different from each other, mistakes of judgment and errors of calculation may occur even under the best administration without any intent to violate the law, and this we find is a case of that description. The statute is one that may be violated without any "device" on the part of the carrier, and it is equally true that the ingenuity of man cannot invent a "device" by which a carrier, subject to its provisions, can give an unlawful preference without incurring the penalties and remedies provided by this statute. The failure of the defendant to furnish tank cars of its own appears to have resulted from its own business considerations entirely. have no jurisdiction to order or recommend the defendant to furnish tank cars, we forbear making any comments upon the reasons it has assigned for not furnishing such tank cars for the transportation of oil over its line, and simply state these reasons because they arise as part of the evidence and were offered to negative the idea that the defendant failed to furnish such tank cars on account of any "device" to give one shipper a preference over others.

To enumerate the conclusions to which we have arrived in this proceeding we state:

1. That so much of the complaint as alleges unjust discrimination in favor of oil shipped in tank cars is sustained, and that it is the duty of the defendant, and it must give the same rates on oil shipped in bar. rels in car-load lots that it charges upon oil in tanks.

enumerated.

2. That so much of the complaint as alleges unjust discrimination between oil shipped in barrels in car-load lots and less than car-load lots is not sustained.

3. That so much of the complaint as seeks an order from the Commission requiring the defendant to furnish tank cars for the transportation of oil for the petitioners and the public is not sustained.

The order of the Commission is that the defendant The Lake Shore & Michigan Southern R. Co., must from and after the receipt of this notice, charge the same rates on oil shipped in barrels in carload lots in stock-cars and other cars that it charges upon oil in tanks-by the pound and not by barrel.

See Rice v. Louisville & Nashville R. Co., 33 Am. & Eng. R. R. Cas. 560.

BUSINESS MEN'S ASSOCIATION OF THE STATE OF MINNESOTA

ย.

CHICAGO & NORTHWESTERN R. Co.

(Interstate Commerce Commission, July 20, 1888.)

Interstate Commerce-Freight Rates-Newly Settled Country.—In an application by merchants, and other business men, complaining of excessive freight rates between St. Peter, Minnesota, and Pierre, Dakota, it appeared that the line of the Chicago & Northwestern R. Co. between these towns was constructed through a sparsely settled country, that the volume of traffic was small, that the company was obliged to bring coal a distance of over 400 miles for use as fuel in running its trains, thus entailing considerably larger cost in transportation, that the line is subject to snow blockades, and that the expense of keeping the road in condition and open is greater in proportion to the business done than upon any other part of the company's system. Held, that in view of these facts the rate per ton per mile must decrease for a greater distance, while the total aggregate charge increases, is inapplicable.

PETITION by the Business Men's Association of the State of Minnesota against the Chicago & Northwestern R. Co. complaining that the defendant company charges freight