mined by the Commission. The value of the properties sought to be consolidated shall be ascertained by the Commission under section 19a of this Act, and it shall be the duty of the Commission to proceed immediately to the ascertainment of such value for the properties involved in a proposed con solidation upon the filing of the application for such consolidation.

Sub paragraphs, heading and a and b of paragraph 6 of section 5 added by Transportation Act 1920.

§ 352E. Applications to Consolidate.-Whenever two or more carriers propose a consolidation under this section, they shall present their application therefor to the Commission, and thereupon the Commission shall notify the Governor of each State in which any part of the properties sought to be consolidated is situated and the carriers involved in the proposed consolidation, of the time and place for a public hearing. If after such hearing the Commission finds that the public interest will be promoted by the consolidation and that the conditions of this section have been or will be fulfilled, it may enter an order approving and authorizing such consolidation, with such modifications and upon such terms and conditions as it may prescribe, and thereupon such consolidation may be effected, in accordance with such order, if all the carriers involved assent thereto, the law of any State or the decision or order of any State authority to the contrary notwithstanding.

Sub paragraph C of paragraph 6 of section 5 added by Transportation Act 1920.

§ 352F. Express Companies Consolidation. The power and authority of the Commission to approve and authorize the consolidation of two or more carriers shall extend and apply to the consolidation of four express companies into the American Railway Express Company, a Delaware corporation, if application for such approval and authority is made to the Commission within thirty days after the passage of this amendatory Act; and pending the decisions of the Commission such consolidation shall not be dissolved.

Paragraph 7 of section 5 as added by Transportation Act

§ 352G. Anti-Trust Laws Not to Apply.-The carriers affected by any order made under the foregoing provisions of this section and any corporation organized to effect a consolidation approved and authorized in such order shall be, and they are hereby, relieved from the operation of the 'antitrust laws,' as designated in section 1 of the Act entitled 'An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes,' approved October 15, 1914, and of all other restraints or prohibitions by law, State or Federal, in so far as may be necessary to enable them to do anything authorized or required by any order made under and pursuant to the foregoing provisions of this section."

Paragraph 8 of section 5 as added by Transportation Act

1920.

§ 353. Rail Carrier Not to Own Competing Water Carriers. -From and after the first day of July, nineteen hundred and fourteen, it shall be unlawful for any railroad company or other common carrier subject to the act to regulate commerce to own, lease, operate, control, or have any interest whatsoever (by stock ownership or otherwise, either directly, indirectly, through any holding company, or by stock holders or directors in common, or in any other manner) in any common carrier by water operated through the Panama Canal or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic or any vessel carrying freight or passengers upon said water route or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic; and in case of the violation of this provision each day in which such violation continues shall be deemed a separate offense.

Added by amendment of August 24, 1912, Sec. 11. Known as Panama Canal Act, made Par. 9 of Sec. 5 by Transportation Act 1920.

§ 354. Whether or Not Competition Exists to Be Determined by the Commission.-Jurisdiction is hereby conferred on the Interstate Commerce Commission to determine questions of fact as to the competition or possibility of com

petition, after full hearing, on the application of any railroad company or other carrier. Such application may be filed for the purpose of determining whether any existing service is in violation of this section and pray for an order permitting the continuance of any vessel or vessels already in operation, or for the purpose of asking an order to install new service not in conflict with the provisions of this paragraph. The Commission may on its own motion or the application of any shipper institute proceedings to inquire into the operation of any vessel in use by any railroad or other carrier which has not applied to the Commission and had the question of competition or the possibility of competition determined as herein provided. In all such cases the order of said Commission shall be final.

Added by amendment of Aug. 24, 1912, Sec. 11, par. 10, Sec. tion 5. On April 14, 1914 the Commission issued the following conference ruling:

461. Water carriers controlled by other common carriers. -Section 5 of the act as amended by the Panama Canal Act prohibits common carriers subject to the act to have, after July 1, 1914, any interest, directly or indirectly, in any common carrier by water, or any vessel carrying freight or passengers, with which said carrier does or may compete for traffic.

The manifest purpose of this law is to bring about discontinuance of common ownership or control of water carriers except in those instances in which, after investigation and hearing, it is found that such operation is in the interest of the public or of advantage to the convenience and commerce of the people, and neither excludes, prevents, nor reduces competition on the route by water. The act does not in specific words authorize the continuance of such common ownership or control beyond July 1, 1914, pending the decision. of the Commission on application relative thereto; but it is provided that any application filed before July 1, 1914, may be considered and granted thereafter. It is not conceivable that the Congress intended that the service should be withdrawn from the public on July 1, 1914, if for good and sufficient reasons it had been impossible for the Commission to determine the questions presented in the application before that date. Al

though the language employed is different, it seems that the legislative intent was similar to that expressed in the amended fourth section of the act and in the safety appliance

acts.

The Commission therefore interprets the amendment to section 5 of the act as contemplating and authorizing a continuance of any existing common ownership or control after July 1, 1914, between rail and other carriers and water car riers not traversing the Panama Canal until such time as the Commission has passed upon the application relative thereto, provided such application is filed with the Commission prior to July 1, 1914.

"May compete for traffic," "existing specified service by water," "through the Panama Canal," defined and statute discussed. Application S. P. Co., 32 I. C. C. 690. Continued ownership not shown to be "in the interest of the public." S. P. Co.- Ownership of Schooner Pasadena, 33 I. C. C. 476. "The purpose of the Panama Canal act was to preserve to the common interest of the people, free and unfettered the 'water road bed' via the Panama Canal." Lake Line Application Under Panama Canal Act, 33 I. C. C. 699. Though all rail lines and joint rates make competition within meaning of act. Application Penn. Co., 34 I. C. C. 47. Ferry boat included in meaning of Act. Application Grand Trunk Railway Co., 34 I. C. C. 49. B. R. & P. Ry. Co., Operation of Car Ferry, 34 I. C. C. 52; G. T. W. Ry. Co., Operation Car Ferry, 34 I. C. C. 54.

"A rail carrier does not necessarily have to reach a point in order to compete with water carriers that operate directly to that joint, but that such competition may exist by the rail carrier's participation in joint rates." S. P. Co. Ownership of Oil Steamer, 34 I. C. C. 77; A. A. R. R. Co., Operation Car Ferry Boats, 34 I. C. C. 83; P. M. & B. L. E. R. R. Co., Operation of Car Ferry Boats, 34 I. C. C. 86. Competition found not to exist. S. P. Co., Steamboats Sacramento River, 34 I. C. C. 174. Steamer Lines on Chesapeake Bay, 35 I. C. C. 692 applying the section. For other applications acted on, see Application of Duluth South Shore & A. R. Co., et al., 33 I. C. C. 229; Application of Spokane P. & S. R. Co., 34 I. C. C. 462; Application of S. P. Co., 34 I. C. C. 648.

Notes of Decisions Rendered Since 1915.

These notes apply generally to sections 353 to 355.

In the report of the House conferees on Transportation. Act 1920 it was said: "The House bill in section 408 amended the provisions of the Panama Canal act relating to the ownership of water lines by railroads, so as to allow the commission, when satisfied that the public interests would not be injured, to continue existing service of water lines owned by a railroad, or to permit the establishment of a proposed new service, except on inland waters. The Senate amendment contained no such provision, and the conference bill strikes out this provision in the House bill."’

Notwithstanding competition between rail lines and the owned water line, the interest of the public being served the ownership was permitted to continue. Ocean Steamship Co., 37 I. C. C. 422; Ashtabula-Port Maitland Car-Ferry Service, 40 I. C. C. 143. Delaware & Hudson Boat Lines, 40 I. C. C. 297; Boston & Maine Boat Lines, 40 I. C. C. 565; Central Vermont Boat Lines, 40 I. C. C. 589. S. P. Co. Ownership Atlantic Steamship Lines, 43 I. C. C. 168; Application of Grand Trunk Ry. Co., 43 I. C. C. 286; Direct Navigation Company, 46 I. C. C. 378; Steamer Lines on Long Island Sound, 50 I. C. C. 634. Control of Water Carriers by Railroad Carriers, 51 I. C. C. 436.

No competition existing ownership continued.

S. P. Co. Ownership of Oil Steamers, 37 I. C. C. 529; Pen-· insula & Occidental S. S. Co., 38 I. C. C. 662; Maine Central Boat Lines 40 I. C. C. 272.

See report of Commission to Senate, 39 I. C. C. 1 seq.

Some rail ownership continued, others discontinued. Steamer Lines from Norfolk to Baltimore. 41 I. C. C. 285. While it would seem that reason and the decision in United States v. A. T. & S. F. Ry. Co., 234 U. S. 476, 58 L. Ed. 1408, 34 Sup. Ct. 986 would justify an opposite conclusion, the Supreme Court has held that a refusal to permit a rail carrier to continue the ownership of a water line is negative and not subject to review by the courts. Lehigh V. R. Co. v. United States, 243 U. S. 412, 61 L. Ed. 819, 37 Sup. Ct. 434.