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Provided, That in time of shortage of equipment, congestion of traffic, or other emergency declared by the Commission it may (either upon complaint or upon its own initiative without complaint, at once, if it so orders without answer or other formal pleadings by the interested carrier or carriers, and with or without notice, hearing, or the making or filing of a report, according as the Commission may determine) establish temporarily such through routes as in its opinion are necessary or desirable in the public interest.

Paragraph 4 of section 15 as amended by Transportation Act 1920. The former section, section 401, 2d Ed.,


And in establishing such through route the Commission shall not require any company, without its consent, to embrace in such route substantially less than the entire length of its railroad and of any intermediate railroad operated in conjunction and under a common management or control therewith which lies between the termini of such proposed through route, unless to do so would make such through route unreasonably long as compared with another practicable through route which could otherwise be established.

Par. 4, Sec. 15, added by amendment of June 18, 1910. Limitation stated, Cincinnati & Traction Co. v. B. & O. S. W. R. R. Co., 20 I. C. C. 486, 492. The Commission must work under the limitation imposed. Rates on Meats, 23 I. C. C. 656, 662. The law recognizes the right of the carrier to protect its own haul. Chamber of Commerce of N. Y. v. N. Y. C. & H. R. R. Co., 24 I. C. C. 55, 76. Limitation applied. Davis Bros. Lumber Co. v. C. R. I. & P. Ry. Co., 26 I. C. C. 257, 259. This section gives the carrier no right "to exclude from points of consumption on its line manufacturers located elsewhere." Meridian Fertilizer Factory v. T. P. Ry. Co., 26 I. C. C. 351, 352. Route found unreasonably long. Omaha Grain Exchange v. C. B. & Q. R. R. Co., 26 I. C. C. 553, 557; United States v. N. P. R. R. Co., 28 I. C. C. 518, 523; Hughes Creek C. Co. v. K. & M. Ry. Co., 29 I. C. C. 671, 679. Does not apply to making joint rates, through routes having been voluntarily established. Rates on Cotton Seed and Its Products, 28 I. C. C. 219, 221; Lumber Rates Oregon & Washington to Eastern Points, 29 I. C. C. 609. Cancellation of through routes not justified. Lumber Rate from North Pacific

Coast Points, 30 I. C. C. 111. Section applied. Cement Rates from Mason City, Iowa, 30 I. C. C. 426, 430. This limitation does not prevent ordering through routes with another carrier when such through routes have been voluntarily established with one carrier. Pacific Nav. Co. v. S. P. Co., 31 I. C. C. 472. Carriers cannot insist on this Section when they have voluntarily established one through route or when to deny a through route would continue an unjust discrimination. Decatur Nav. Co. v. L. & N. R. Co., 31 I. C. C. 281; Pacific Nav. Co. v. S. P. Co., 31 I. C. C. 472; Eastern Shore Develop. S. S. Co. v. B. & O. R. Co., 32 I. C. C. 238; U. S. Button Co. v. C. R. & P. Ry. Co., 32 I. C. C. 149; Penn. Co. v. U. S., 236 U. S. 351, 59 L. Ed. 616, 35 Sup. Ct. 370. Switching may be ordered for one shipper only. Union Lime Co. v. C. & N. W. R. Co., 233 U. S. 211, 58 L. Ed. 924, 34 Sup. Ct. 522.

Carriers may cancel through routes which they could not have been compelled to establish. The Ogden Gateway case, 35 I. C. C. 131.

Notes of Decisions Rendered Since 1915.

Ogden Gateway Case, supra, followed. Grain to Arkansas Points, 40 I. C. C. 49. Section applied. Jackson Chamber of Commerce v. N. Y. C. R. Co., 42 I. C. C. 155; Iowa & S. W. Ry. Co. v. C. B. & Q. R. Co., 42 I. C. C. 389. Lake and Rail Cancellations. 42 I. C. C. 513, 516; Grain from Missouri Points, 43 I. C. C. 737; West Coast Lumber Mfrs. Asso. v. T. E. R. R. Co., 45 I. C. C. 227. St. Louis, S. W. R. Co. v. United States, 245 U. S. 136, 62 L. Ed. 189, 38 Sup. Ct. 42.

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§ 396C. Delivery of Ordinary Live Stock-Transportation wholly by railroad of ordinary livestock in car-load lots destined to or received at public stockyards shall include all necessary service of unloading and reloading en route, delivery at public stockyards of inbound shipments into suitable pens, and receipt and loading at such yards of outbound shipments, without extra charge therefor to the shipper, consignee or owner, except in cases where the unloading or reloading en route is at the request of the shipper, consignee or owner, or to try an intermediate market, or to comply with

quarantine regulations. The Commission may prescribe or approve just and reasonable rules governing each of such excepted services. Nothing in this paragraph shall be construed to affect the duties and liabilities of the carriers now existing by virtue of law respecting the transportation of other than ordinary livestock, or the duty of performing service as to shipments other than those to or from public stockyards.

Paragraph 5 section 15 added by Transportation Act 1920 section 418.

§ 397. Division of Joint Rate May Be Prescribed by Commission. Whenever, after full hearing upon complaint or upon its own initiative, the Commission is of opinion that the divisions of joint rates, fares, or charges, applicable to the transportation of passengers or property, are or will be unjust, unreasonable, inequitable or unduly preferential or prejudicial as between the carriers parties thereto (whether agreed upon by such carriers, or any of them, or otherwise. established), the Commission shall by order prescribe the just, reasonable, and equitable divisions thereof to be received by the several carriers, and in cases where the joint rate, fare, or charge was established pursuant to a finding or order of the Commission and the divisions thereof are found by it to have been unjust, unreasonable, or inequitable, or unduly preferential or prejudicial, the Commission may also by order determine what (for the period subsequent to the filing of the complaint or petition or the making of the order of investigation) would have been the just, reasonable, and equitable divisions thereof to be received by the several carriers, and require adjustment to be made in accordance therewith. In so prescribing and determining the divisions of joint rates, fares and charges, the Commission shall give due consideration, among other things, to the efficiency with which the carriers concerned are operated, the amount of revenue required to pay their respective operating expenses, taxes, and a fair return on their railway property held for and used in the service of transportation, and the importance to the public of the transportation services of such carriers; and also whether any particular participating carrier is an originating, intermediate, or delivering line, and

any other fact or circumstance which would ordinarily, without regard to the mileage haul, entitle one carrier to a greater or less proportion than another carrier of the joint rate, fare or charge.

Paragraph 6 of section 15 as amended by Transportation Act 1920, section 418. The former section read:

Whenever the carrier or carriers, in obedience to such order of the Commission or otherwise, in respect to joint rates, fares, or charges, shall fail to agree among themselves upon the apportionment or division thereof, the Commission may after hearing make a supplemental order prescribing the just and reasonable proportion of such joint rate to be received by each carrier party thereto, which order shall take effect as a part of the original order.

Last part of paragraph one of section fifteen as added by Act of June 29, 1906.

Before the amended Act Commission had no authority to compel carriers to make joint rates. Re Application of F. W. Clark, 3 I. C. C. 649, 2 I. C. R. 797; Commercial Club of Omaha v. Chicago, R. I. & Pac. Ry. Co., 6 I. C. C. 647, 677; Fred G. Clark Co. v. Lake Shore & M. S. Ry. Co., 11 I. C. C. 558. Re Alleged Unlawful Discrimination Against Enterprise Transportation Co., 11 I. C. C. 587; Ky. & I. Bridge Co. v. L. & N. R. Co., 37 Fed. 567; Little Rock & M. R. Co. v. St. L., I. M. & S. Ry. Co., 41 Fed. 559; Chicago & N. W. Ry. Co. v Osborne, 52 Fed 912, 915, 3 C. C. A. 347; Memphis & L. R. R. Co. v. So. Express Co. (Express cases), 117 U. S. 1, 29 L. Ed. 791, 6 Sup. Ct. 542, 628; So. Pac. v. Int. Co. Com., 200 U. S. 536, 553, 50 L. Ed. 585, 593, 20 Sup. Ct. 330. Under the Hepburn law, in fixing a division of joint rates between carriers, all circumstances should be considered and such divisions should not be on a mileage or other fixed basis. Star Grain & Lumber Co. v. A. T. & S. F. Ry. Co., 14 I. C. C. 364.

Notes of Decisions Rendered Since 1909.

The power to prescribe divisions is a continuing power. Rates on Lumber and Other Forest Products, 30 I. C. C. 371, 372. The power exercised, People's Fuel Co. v. Grand T. W. Ry. Co., 30 I. C. C. 657; Coal Rates from Oak Hills, Colo..

35 I. C. C. 456; Texas Cement Plaster Co. v. St. Louis & S. F. R. Co., 26 I. C. C. 508, 510. Dispute over divisions no justification for increasing rates. New Mexico Coal Rates, 28 1. C. C. 328; Missouri River Illinois Wheat & Flour Rates, 27 I. C. C. 286; Advances on Ground Iron Ore, 26 I. C. C. 675. Divisions established without previously fixing joint rates. Louisville Board of Trade v. I. C. & S. Traction Co., 34 I. C. C. 640. The words "or otherwise" would seem to make clear the power of the Commission in all cases of a dispute over divisions.

Notes of Decisions Rendered Since 1915.

Divisions prescribed. Port Huron & D. S. S. Co. v. P. R. Co., 40 I. C. C. 335. The text, supra, ending notes of 2nd ed. of this book followed and former decisions overruled. Morgantown & Kingwood Divisions. 49 I. C. C. 540. For an interesting discussion of divisions to industrial roads see National Tube Company v. L. T. R. Co., 55 I. C. C. 469 and the comprehensive dissenting opinion in the same case of Mr. Commissioner Eastman, 56 I. C. C. 272, citing numerous Powers of Commission sustained. O'Keefe v. United States, 240 U. S. 294, 60 L. Ed. 651, 36 Sup. Ct. 313.


§ 398. Right to Suspend Proposed Increases in Rates.Whenever there shall be filed with the Commission any schedule stating a new individual or joint rate, fare, or charge, or any new individual or joint classification, or any new individual or joint regulation or practice affecting any rate, fare, or charge, the Commission shall have, and it is hereby given, authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders without answer or other formal pleading by the interested carrier or carriers, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, fare, charge, classification, regulation, or practice; and pending such hearing and the decision thereon the Commission, upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, fare, charge, classification, regu

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