glish Corporation. These roads, then, being in | said: "The general doctrine, then, as to trans different States and countries, and not being portation by connecting lines, approved by subject to a common control, are not subject this court and also by a majority of the state to the Act, unless there is between them "an courts, amounts to this: that each road confinarrangement for a continuous carriage or ship-ing itself to its common-law liability is only

This construction is favored by section 6, that the O. & C. road and the steamers of the part 5, which requires joint tariffs to be filed O. R. & N. Company in the carriage of the with the Commission. The next clause re- goods in question are not 'used under any quires copies of all contracts, agreements and common control, management or arrangement arrangements between carriers to be filed. If for a continuous carriage or shipment' thereof, the joint tariffs constitute an "arrangement," to and from San Francisco, within the intent the last clause is tautological. The section and meaning of the Act, and that the carriage contemplates an "arrangement" independent and handling of said goods, so far as the reof joint tariffs; and when it does exist then ceiver is concerned, is performed wholly with joint tariffs become important in order that in the State, and therefore specially exempted the Commission may know whether they are by the terms of the Act from its operation, reasonable or not; and, second, they shall not provided the same are not directly shipped to be raised without ten days' notice, which or from a foreign country.' shows that the object of the publication of joint tariffs is an advertisement to the public of what the rates are, and nothing more.

Atchison, etc. R. R. Co. v. Denver, etc. R. R. Co. 110 U. S. 667 (Bk. 28, L. ed. 291).

II. If it shall be held that a joint tariff constitutes "an arrangement for a continuous carriage or shipment," then the inquiry arises, What is meant by the words "same line" in the fourth section of the Law?

It cannot mean continuous trackage, for that would make all the railroads in the country the "same line."

It may therefore be assumed safely that the joint tariffs referred to in the petition do not constitute an "arrangement for a continuous carriage or shipment," within the meaning of the first section of the law; and the defendant roads, except in so far as they are controlled The words must probably be construed with by one another, are not subject to the Inter-reference to the first section of the Law. The state Commerce Law. The Central Vermont line must be a road or roads, or road and water has nothing to do with the roads south of carriage, subject to a common management or White River Junction, Vermont, nor they control, or between which there is an arrangewith the Central Vermont, except to deliver ment for a continuous carriage or shipment. to one another freight "for a continuous car- Nothing less will make a line. The case shows, riage" by virtue of a legal duty. as before stated, that the Central Vermont is managed by its own board of directors, and nobody else. So of the Concord. So of the Lowell and Boston. So of the Grand Trunk. But joint tariffs exist, as will hereinafter be stated. Now if a joint tariff makes an "arrangement for a continuous carriage or shipment" and so makes a line within the meaning of the fourth section of the Law, another joint tariff, although embracing the roads within the first line, constitutes another and different line, if it embraces other and additional roads making a much longer line. The additional roads do not participate in the shorter line. The two tariffs embrace different distances, different roads, and therefore make different lines, and in the cases at bar are intended to cover entirely different traffic.

The decision made by Judge Deady on this subject in Ex parte Kahler is instructive. It is reported in 1 Interstate Com. Rep. 28. The head notes are as follows:

"The transportation of property from one State to another is Interstate Commerce, whether the carriers engaged in moving it, or the vehicles on which it is borne, cross the line of the State or not.'

"This Act does not include or apply to all carriers engaged in Interstate Commerce, but only such as use a railway, or a railway and water craft, 'under common control, management or arrangement for a continuous carriage or shipment' of property from one State to another; nor does it apply to the carriage of property by rail wholly within the State, although shipped from or destined to a place without the State, so that such place is not within a foreign country.

"The O. R. & N. Company carries certain kinds of goods on its steamers forth and back between Portland and San Francisco at special and reduced rates; the O. & C. Railway, under the management of the petitioner, carries the same kinds of goods forth and back between Portland and Ashland and way stations, in Oregon, at special and reduced rates; the O. P. Railway Company carries the same kinds of goods forth and back between certain points on the line of the O. & C. road and San Francisco, via its railway from Albany to Yaquina Bay, and then thence by steamer, at reduced rates, and thereby competes with the O. & C., and the O. R. & N. for business between said points and San Francisco. The O. R. & N. and the receiver of the O. & C. act independently, although concurrently, in making these reduced rates; but no through bill of lading or freight receipt is given, nor is either interested in or liable for the carriage of the goods beyond its own line of transportation. Held,

One petition is that the Boston & Lowell, Concord, Central Vermont, and Ogdensbugh & Lake Champlain make a joint tariff from Boston to Ogdensburgh for six classes of freight.

If these roads are a line at all within the meaning of the fourth section of the Law, it is by virtue of this joint tariff, and nothing else. There is no common management or control.

The petition also alleges that the Central Vermont Line of steamers make a joint tariff from Boston via the aforesaid roads to Cleveland and Detroit, Port Huron, Milwaukee and Chicago at less rates than are charged by the joint tariff first aforesaid from Boston to Ogdensburgh. Suppose they do; this makes a different line. It is not the same line as the one from Boston to Ogdensburgh. They are not identical, and they must be, to be the same line. Besides, the first line embraces traffic between Boston and Ogdensburgh only, which makes another difference. The consequence is that the rates from Boston to Ogdensburgh are not made over the same line as the rates from Boston to Lake points.

The same is true of the other petition. It alleges that the roads between Boston and St.

And this theory is well illustrated by the case, Union Pacific R. Co. v. U. S. 117 U. S. 355 (Bk. 29, L. ed. 920). By an Act of Congress the Union Pacific R. Co. were to charge the United States for transportation of mails and passengers, only what was reasonable, "and no more than was charged to private parties for the same kind of service."

Albans make rates to St. Albans from Boston | Boston to Detroit. This could only be done more than National Despatch Line makes from on the theory that different tariffs, embracing Boston to Montreal and Detroit. But the Na- different roads, different distances and differtional Despatch Line does not make a tariff ent traffic, make different linge. from Boston to St. Albans, nor take traffic, except for points west of St. Albans, for west bound freight; nor does the tariff made by the roads from Boston to St. Albans include points west of St. Albans for west bound freight; but the points west of St. Albans for west bound freight are included in the National Despatch Line tariff, and embrace all large points in the West, Northwest and Southwest. If, then, the joint tariff from Boston to St. Albans makes a "line," can it be pretended that it is the same identical line as the one made by the National Despatch tariff, which embraces thousands of miles beyond, and when the National Despatch cars belong not to the roads but to a separate organization which makes its own tariff, and issues its own bills of lading, and solicits its own business?

The company presented a claim against the Government for the transportation of passengers between Council Bluffs and Ogden. The regular rate to all persons between these points was $78.50, but by contracts with connecting railroads the Union Pacific receives from companies who sell through tickets at reduced rates from New York to San Francisco $54 only for each passenger carried between Council Bluffs and Ogden. It was also found that the local rate was reasonable. The supreme court allowed the company the local rate of $78.50, and held that the tariff rate from Council Bluffs

When this matter was under discussion in the senate, the question was put, What is meant by the "same line?" and Senator Dawes put to Senator Cullom certain questions look-to Ogden was entirely different from their ing to the result as to the Boston & Albany, which is an Interstate Road, and extends from Boston, Mass., to Albany, N. Y.

Suppose traffic is taken from Kansas City to Albany, and then over the Boston & Albany to Boston; also from Chicago to Albany over a different line, and also from Detroit to Al bany by another, and from Albany to Boston; in each case over the Boston & Albany, what would be the result?

Senator Cullom answered: "They, the Boston & Albany, can carry the freight as they agree to carry it; and whatever their agreement may be it does not affect the freight that goes from Albany to Boston on that line, its own line according to its own published rates of freight."

Senator Dawes:

"Suppose it be a different rate from that at which it takes up freight at Albany and carries it to Boston?"

Senator Cullom:

"It does not make the slightest difference in the world; it has nothing to do with it. One is a line of railroad by itself. The other is a line of railroad in conjunction with one, two, or five others, if you please, and the one rate does not control the others. In other words, as I have said over and over again, the percentage which the Boston & Albany Road gets for carrying the products which are brought from the West after they reach Albany, has nothing to do with regulating the rates from Albany to Boston over that road."

If this is a correct interpretation of the words, "the same line," in the fourth section, it is tolerably plain that the tariff from Boston to Albany makes one line, and the tariff from Boston to Detroit via the Boston & Albany and New York Central, and the steamships on the Great Lakes, forms another line, because, under the interpretation given by Senator Cullom, it would be perfectly competent for the Boston & Albany, an interstate road, to charge $1.00 per 100 pounds from Boston to Albany, and yet by agreement with its connections to charge only seventy-five cents per 100 pounds from

share of the through rate from New York to
San Francisco, although the shorter distance
from Council Bluffs to Ogden was within the
greater distance from New York to San Fran-
cisco. In other words, neither the service nor
the lines are identical.

See Atchison etc. R. R. Co. v. Denver etc. R.
R. Co. 110 U. S. 683 (Bk. 28, L. ed. 297).
Mr. Easley, in commenting upon the word
"arrangement," says:

"If this is the true construction of the Act, then a railway does not become subject to the provisions of the Act unless it owns, uses, or operates, by lease, contract or agreement, roadway in two States, or enters into arrangements with connecting carriers to transport persons or property from one State to another.

"If a railway wholly within a State should enter into an arrangement to carry interstate freights or passengers with a connecting line, it would only be subject to the provisions of this Act quoad the line thus formed. It could decline to make the same arrangement or a like arrangement with another carrier and not violate this Act. And such a carrier might enter into an arrangement to carry interstate passengers or freight to and from one point on its line and not others, with out subjecting itself to this Act further than the extent it arranged to carry."

III. But, however these things may be, the circumstances and conditions under which traffic is taken from Boston to Ogdensburgh and St. Albans, respectively, are wholly dissimilar from what they are in respect to traffic taken beyond Ogdensburgh and St. Albans respectively.

a. There is no competition at Ogdensburgh or St. Albans for traffic from Boston, nor between Ogdensburgh and St. Albans, and points west of there, for business.

b. The rates are reasonable at those points. The distance from Boston to Ogdensburgh is 408 miles, and from Boston to St. Albans is 266 miles. (See Porteous' Milage Computation.)

The tariffs referred to in the petition are as follows:

Tariff made by roads between Boston and Ogdensburgh:

For six classes of freight from Boston to Ogdensburgh,

1 2 3 4 5 6 classes,

60 50 45 30 25 17 cents per 100 pounds. Tariff made by Central Vermont line of steamers, via Ogdensburgh:

From Boston to Cleveland, Ohio, Detroit, Mich. and Port Huron, for the six classes of freight aforesaid, 41, 36, 29, 20, 17, 14 cents per 100 pounds.

Tariff made by Central Vermont line of steamers, via Ogdensburgh:

From Boston to Milwaukee and Chicago for the six classes of freight aforesaid, 44, 39, 31, 23, 19, 16 cents per 100 pounds.

Tariff made by roads between Boston and St. Albans:

For six classes of freight from Boston to St. Albans:

1 2 3 4 5 6 classes,

55 48 38 27 24 17 cents per 100 pounds. Tariff made by the National Despatch Line for points west of St. Albans:

From Boston to Montreal for the six classes of freight aforesaid, 45, 40, 30, 23, 20, 18 cents per 100 pounds.

From Boston to Detroit for the six classes of freight aforesaid, 51, 45, 35, 24, 20, 18 cents per 100 pounds.

c. The Vermont Central and Vermont and Canada Roads, now the Central Vermont Road, were constructed about 1849, and are wholly within the State of Vermont. They depended upon local tariff until 1856, when they went into the hands of a receiver and continued so for a good many years. They were reorganized in 1883. The original capital was lost. They run through a sparsley settled country. If they depend upon local traffic, they cannot pay expenses and interest on their bonded debt as now reorganized, to say nothing of their stocks. As reorganized it is not a powerful and rich corporation, eager to swallow its competitors. It has not paid dividends on its stocks since its reorganization. On the other hand, the road has been brought up to a high state of efficiency with a view to doing a through business. Its track is steel railed and its equipment ten times greater than is necessary for local business. If restricted to a local business two results would follow: the sale of their equipment, and the raising of local rates in order to pay operating expenses. Proper remuneration for the capital invested is a legitimate subject for consideration in determining reasonable rates, as well as extraordinary cost of service over roads like the Central Vermont and Og densburgh.

Harper's Interstate Law, 39.

Interrogatories and answers in regard to the freight and passenger business of the Central Vermont Railroad Company from Rouse's Point and Province Line to White River Junction and Windsor, and also from Essex Junction to Burlington, covering the fiscal year ending June 30, 1886.

1. What was the tonnage of through business East and West?

A. East bound, 882,259 tons. West bound 213,717 tons. Total, 1,095,976 tons.

2. What was the tonnage of joint freight East and West?

A. East bound, 161,934 tons. West bound, 54,219 tons. Total, 216,153 tons.

3. What was the tonnage of strictly local freight?

A. 71,325 tons.

The mortgage on the road is $7,000,000 at 5 per cent interest. It also has common and preferred stocks.

the board of directors tested the question by cutting off the through business. The road scarcely earned its expenses. (See Gov. Smith's testimony.)

That a profit is made on the through busid. But with through business the road man-ness is not open to doubt. In the year ages to live and pay its expenses and interest upon its bonded debt of $7,000,000. It also relieves the local traffic from an increase of charges, and keeps them down to where they now are. The profit on the through business is small in degree, but is great in its results by reason of the magnitude of the business.

Auditor Lucas' statement in respect to earn ings from through and local business is as follows:

The trunk lines fix the rates to competing points; that is to say, the Boston and Albany, the New York Central Line, the Baltimore and Ohio, the New York and Erie and Pennsylva nia lines on the left, and the Grand Trunk and Canada Pacific on the right, all powerful lines,

Ex parte Koehler, 1 Interstate Com. Rep. 317.

The lines out of Boston that compete for

numerous, and are enumerated in the answers and shown on the maps.

Montreal is a competing point. The Grand Trunk, via Portland, is one line competing there; the water line, via New York and Lake Champlain, is another; the Delaware & Hudson Canal Company is another; the Canadian Pacific is another.

which, it is to be presumed, are not unwilling | ville & Nashville Case covers every point. But to see the "survival of the fittest." Weak since the announcement of that decision, Judge lines are to be swallowed up, competition de- Deady has gone a step further, and held that stroyed, and the very purpose of the Interstate competition in all cases, whether by foreign or Commerce Law defeated. The rates thus fixed domestic corporations, or by water lines, conby the trunk lines must be met, or the Cen- stitutes a dissimilar circumstance. tral Vermont must go out of the business; and in meeting them another obstacle is in the way. The Boston and Albany Line is about 140 miles shorter to Chicago than the Central Ver-west bound traffic to points in the West are very mont Line. (See Porteous' Milage Computation.) At the same rates from Boston to competing points in the West, traffic would naturally go by the shorter and quicker line. To meet the difficulty and overcome the inequality thus existing between the lines, it was, as early as 1865, conceded by the trunk lines that this line might charge less than the trunk lines to competing points in the West. This line was obliged to do this in order to secure business, and it was conceded by the trunk lines as a matter of justice. On the other hand, while this line was the longest and slowest, it could, nevertheless, make the lower rate because its line reached the great Lakes at Ogdensburgh by a shorter rail line (118 miles) than the Boston & Albany reached the great Lakes at Buffalo, and also because defendant's cars go West empty, unless they take freight at such rates as they can get. They maintain rates for east bound freight. (See maps and Porteous' Milage Computation.)

All the foregoing applies to the Ogdensburgh & Lake Champlain Road as well as the Central Vermont. See auditor's statement as to earn ings from through and local business.

A vast amount of traffic that, before the passage of the Interstate Commerce Law, used to come over the Grand Trunk and Central Vermont, and was exported at Boston, now stops at Montreal, and is exported that way.

IV. a. It is true that the Boston & Albany Company, and everybody else, has a standing before this Commission to complain. But it is observable that this complaint does not come from a shipper who complains of the rates at Ogdensburgh and St. Albans respectively. It comes from a competitor at points on the great Lakes, and that is the real grievance. The Boston & Albany care nothing about the rates at Ogdensburgh and St. Albans. Theirs is not a missionary duty. But the trouble is, they want to get rid of their principal competitor for west bound traffic to competing points in the West.

But it has been generally supposed that the object of the Interstate Commerce Law was to encourage competition and to break down mo nopolies instead of creating them; and so the Commission announced in the Louisville & Nashville Case.

e. The decision in the Louisvillle & Nashville Case (1 Interstate Com. Rep. 278), completely covers this case. That case announces the rule that when the competition is by foreign railroads or lines, competition is of itself a dissimilar circumstance. Also water lines. The principal competitorsfor Boston west How often has it been held that he who seeks bound traffic are the Grand Trunk, via Port-equity must come into court with clean hands. land, and the Canadian Pacific, via the South- Motives are material. Thus when a stockeastern, also a Canadian corporation, and a holder of a private corporation buys the stock water line by ocean carriage from Boston to of a rival corporation for the purpose of bring. Halifax, and thence by the Inter-Colonial to ing a suit to destroy the rivalry, he will not be Montreal, and by the other water lines referred heard in a court of equity, when the question to in the maps, answers and testimony. is one of discretion.

Especially is this true by the all water line, via New York City, the Hudson River, the Erie Canal and the Great Lakes to Cleveland, Port Huron, Detroit, Milwaukee, and Chicago. New England agents sell their goods delivered in New York, at New England prices. The carriage by water from Boston to New York is trifling. The rates from New York to Cleveland and Detroit are

35 30 25 18 17 15. And Milwaukee and Chicago,

35 30 25 20 18 16. The rates of insurance are much less by this line than by the Central Vermont Line of Steamers, via Ogdensburgh; so that in the ag gregate the rate is 8 to 10 cents per hundred pounds less than on any other line. A vast amount of New England business that used to go via Ogdensburgh now goes by this route, since the passage of the Interstate Commerce Law.

It is unnecessary to go further. The Louis

1 Redfield on Railways, 76.
The author says:

"But when the fact is established that under pretense of serving the interests of one company, the shareholders of a rival company, by purchasing shares for the purpose of litigation, can make this court the instrument for defeating or injuring the company into which they so intrude themselves, in order to raise questions and disputes on matters as to which all the other members of the company may be agreed, I cannot consider that in such a case it is the province of the court ordinarily to interfere. In questions of the law of contracts, when there is a discretionary jurisdiction in this court, circumstances affecting the con dition of the contracting parties and the origin of their rights in relation to the subject matter of the contract deserve great consideration."

b. The second, third, and fourth sections of the Interstate Commerce Law are merely declaratory of the common law. Unjust dis