be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish sufficient business to justify the construction and maintenance of the same, and to furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper."

Under section one of the Act of March 4, 1887, as amended by the Act of June 29, 1906, the Supreme Court held that the Interstate Commerce Commission had power to compel switch connections with lateral branch roads only at the instance of shippers and that it had no power to compel switch connections on the application of a branch railroad."

The amendment of June 18, 1910, however, gives the right to "any lateral, branch line of railroad," as well as to any ship

per.

In construing the words "lateral branch line," the Supreme Court gave as examples of such lines, "those that are dependent upon and incident to the main line-feeders, such as may be built from mines or forests to bring coal, ore or lumber to the main line for shipment," and the court held that the question of whether or not a particular line comes within the meaning of the statutory language must be determined by what the line is, and not by what it may become."

$192. Switch Connections-Power of the Commission.— Should a carrier fail to perform the duty to make switch connections, on application therefor in writing by any shipper or owner of such lateral, branch line of railroad, such shipper or owner of such lateral, branch line of railroad, may make complaint, and the Commission shall hear and investigate the same and shall determine as to the safety and practicability thereof and the justification and the reasonable compensation therefor, and the Commission may make an

road Herald April 1920, p.

et seq.

2. Paragraphs 4 and 9 of Section 1 of Interstate Commerce Act sections 338, 344, post.

3. Interstate Com. Com. V. Delaware, L. & W. R. Co., 216 U. S. 531, 54 L. Ed. 605, 30 Sup. Ct. 415.

4. United States v. Baltimore & O. R. Co., 226 U. S. 14, 57 L. Ed. 104, 33 Sup. Ct. 5, affirming Baltimore & O. R. Co. v. United States, 195 Fed. 962, Opinion Commerce Court No. 60, p. 431. For order of the Commission see, Cincinnati & Columbus Traction Co. v. Baltimore & O. R.

order directing the common carrier to comply with the provisions of the statute in accordance with such order."

This provision is supplemented by the Transportation Act 1920 which authorizes the Commission, when in the public interest and practicable, to require that existing terminal facilities, including main line track or tracks for a reasonable distance, to be opened to a joint use under such terms and for such compensation as may be agreed on or fixed.*

When there is an application for a switch connection made as provided by statute and the evidence shows an existing siding from which interstate freight is tendered, that there is sufficient business to justify the construction and maintenance of the switch and the connection is reasonably practicable and safe, the Commission will order a connection."

There must, however, be an existing side track or lateral branch line of railroad with which the connection can be made, and the Commission has no jurisdiction to enforce a contract for such connection.°

The prohibition against requiring a carrier to give the use of its tracks, terminals and facilities to a competing carrier, does not prevent the Commission in a proper case from requiring a carrier to receive cars from a connection for transportation over its tracks and terminals. Such a requirement when the haul is "a substantial part of a continuous transportation routing" and necessary to such movement, is a proper regulation of the business of the carrier and not an appropriation of terminal facilities for the use and benefit

Co., 26 I. C. C. 240, 243, 244; Louisville Board of Trade v. L. & N. R. Co., 40 I. C. C. 679, 688 and cases cited; Guyton & Harring. ton Mule Co. v. L. & N. R. Co., 50 I. C. C. 546.

7. Ridgewood Coal Co. v. Lehigh Valley R. Co., 21 I. C. C. 183, 185.

8. Winters Metallic Paint Co. v. Chicago, M. & St. P. Ry. Co., 16 I. C. C. 687.

9. Ralston Townsite Co. V.

of another road.10 For the transportation over its tracks the carrier performing the service is entitled to a reasonable compensation."1

The provision of Transportation Act 1920 under which a joint use of terminals may be required supersedes the former law prohibiting the requirement that a carrier should be compelled to give the use of its terminals. Under the amendment the use of terminals are not given; but may, in analogy to the right of eminent domain, be opened to a joint use upon fair compensation.

§ 193. Industrial Switches and Railways.-The jurisdiction of the Commission to require switch connections includes the power and imposes the duty to regulate such connections. Many industries own private switch tracks connecting with a carrier; some of the tracks privately owned have developed so far as to become incorporated as railways. That connections may in proper cases be required to be made by the carriers with these industrial tracks or industrial railways has been shown in the preceding section. When such connections are made, cars are delivered from the line of the carrier to the industrial track or railway, and sometimes the line carrier delivers incoming cars over and takes outgoing cars from the plant tracks. Obviously such delivery and receipt of cars is valuable to the industry and costs the carrier something. Carriers have made allowances from their rates to such industries or to their subsidiary railways in the form of rate divisions, per diem reclaims, remission of car demurrage, furnace allowances, and have performed services without additional charges over the line rate by placing cars at points on the tracks or railways of the industry.

Missouri Pac. Ry. Co., 22 I. C. C. 354.

10. Grand Trunk R. Co. V. Michigan Railroad Com., 231 U. S. 457, 58 L. Ed. 310, 34 Sup. Ct. 152; Michigan C. R. Co. v. Michi. gan Railroad Com., 236 U. S. 615, 59 L. Ed. 750, 35 Sup. Ct. 422;

Penn. Co. v. U. S. 236 U. S. 351, 59 L. Ed. 616, 35 Sup. Ct. 370; Ill. Cent. R. Co. v. Railroad Com. of La., 236 U. S., 157, 59 L. Ed. 517, 35 Sup. Ct. 275.

11. So. Ry. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297, 53 L. Ed. 1004, 29 Sup. Ct. 678.

These allowances and remissions were discussed by the Commission in the First Industrial Railways case," and held to be illegal.

"Spotting cars" in so far as the phrase has a definite meaning, is the service performed by a line carrier of placing or receiving cars for a plant beyond the point of interchange between the rails of the carrier and the tracks of the industry, and, as such practice is so defined, it was held illegal unless a reasonable charge was made for the service."

In prior sections it has been shown that allowances sometimes called absorptions, at other times called divisions, are not unlawful."

§ 194. Switch Connections with Carriers by Water. The Panama Canal Act gives jurisdiction to the Commission over interstate transportation "by rail and water through the Panama Canal or otherwise," and "of the carriers, both by rail and by water, which may or do engage in' the same," and gives the Commission power to establish physical connections Between the lines of the rail carrier and the dock of the water carrier at which interchange of passengers or property is to be made when such "connection is reasonably practicable"

12. Industrial Railways Case, 29 I. C. C. 212.

13. Industrial Railway Case, 29 I. C. C. 212, 234. Spotting was defined in a tariff suspended by the Commission as "service beyond a reasonable convenient point of exchange." In a brief it was defined as "placing a car at a particular spot." See also Alan Wood Iron & Steel Co. v. Pennsylvania R. Co., 22 I. C. C. 540; National Tube Co. v. Lake Tex. R. Co., 56 I. C. C. 272.

14. Atchison, T. & S. F. Ry. Co. V. Interstate Com .Com., 188 Fed. 229 and 929, Opinion Com merce Court No. 2, p. 3, enjoining the order of the Commission in Associated Jobbers of Los Angeles v. Atchison, T. & S. F.

Ry. Co., 18 I. C. C. 310. Commerce Court reversed, Interstate Com. Com. v. Atchison, T. & S. F. Ry. Co., 234 U. S. 294, 58 L. Ed. 1319, 34 Sup. Ct. 814; Secs. 170, 171, supra. Tap Line Cases, 234 U. S. 1, 58 L. Ed. 1185, 34 Sup. Ct. 741; Manufacturers' Railway Co. v. St. L. I. M. & S. Ry. Co., 32 I. C. C. 578; Industrial Railways Case, 32 I. C. C. 129; Car Ferry Allowance at Cheboygan, 32 I. C. C. 578; Trap or Ferry Car Service Charges, 34 I. C. C. 516; Second Industrial Railways Case, 34 I. C. C. 596; Car Spotting Charges, 34 I. C. C. 609; Manufacturer's R. Co. v. United States, 246 U. S. 457, 62 L. Ed. 831, 38 Sup. Ct. 383. Section 170 and 171, supra.

and "can be made with safety to the public, and the amount of business to be handled is sufficient to justify the outlay." 15

It was argued before the Commission that the words "or otherwise" modified the phrase "by rail and water" and not the phrase "through the Panama Canal." This construction was not adopted and it was held that by reason of the words "or otherwise," the Commission had jurisdiction to establish through routes and joint rates between rail carriers and water carriers, those operating through the Canal and those operating on other waters. Not to adopt the construction given the statute by the Commission would leave the words "or otherwise" mere surplusage, to do which would violate the fundamental canons of statutory construction."

The change made by Transportation Act 1920 in this provision makes more specific than the old law, the dock at which interchange may be required. Paragraph 4 of section 15 as amended provided, as the Commission had already held in the Baltimore and Carolina Steamship Case, note 16, supra, that the short haul limitation of section 15 did not apply when one of the connecting "carriers is a water line."

§ 195. Through Routes. It is made the duty of the carriers subject to the Act "to establish through routes.

99 17

The Commission may, after hearing on a complaint, establish through routes and joint rates as the maximum to be charged and prescribe the division of such rates and the terms and conditions under which such through routes shall be operated, when that may be necessary to give effect to any provision of the Act, and the carriers complained to have refused or neglected voluntarily to establish such through routes and joint rates. This jurisdiction exists when one of the carriers is a water line.

15. Act March 24, 1912, Sec. 377, post.

16. Augusta & Savannah Steamboat Co. v. Ocean Steamship Co., 26 I. C. C. 380, 385; Federal Sugar Refining Co. v. Central R. Co., of New Jersey, 35 I. C. C. 488; Decatur Navigation Co. v. L. & N. R. Co., 31 I. C. C. 281;

Bowling Green Bus. Men's Protective Asso., v. L. & N. R. Co., 31 I. C. C. 1; Pacific Nav. Co., v. S. P. Co., 31 I. C. C. 472; Port Huron & Duluth S. S. Co. v. P. R. Co., 35 I. C. C. 475; Baltimore & Carolina S. S. Co. v. A. C. L. R. Co., 49 I. C. C. 176, 179.

17. Sec. 1 of Act, Sec. 338, post.