New York. However, it should also be observed that the Commission has held it neither sound in principle nor equitable in practice for railway lines to create artificial differences in market conditions by an arbitrary differential in rates, whereby the product of one section of the country is assigned to one market and the product of another section of the country to another market.2

Pooling. Section V of the act prohibits pooling. What constitutes pooling within the meaning of the statute has been decided by the courts, and will be further considered in the next chapter. Reference is here made to rulings of the Commission on contracts and agreements among railway companies other than illegal pooling contracts. An early decision,3 confirmed by a recent one, maintains that an intra-state railway becomes interstate when it voluntarily enters into through shipment arrangements; but shipments from within a state with the intention of reshipment beyond the state is not interstate commerce.5 The receipt successively by two or more carriers for transportation of traffic shipped under through bills for continuous carriage or shipment, and previous formal arrangement between them, is not necessary to bring such transportation under the

1 1. 24, 436.

28. 185; see also 5. 571; 7.481; 7. 612; 8. 47.

8 1. 315.

48. 531; see also 167 U. S. 642, and 162 U. S. 184.

5 I. 30.

terms of the law; and the successive receipt and forwarding in ordinary course of business by two or more carriers of the interstate traffic shipped under through bills for continuous carriage over their line is assent to a "common arrangement." "2 A railway is obliged to transport freight when the same is offered in the usual way, without any special agreement.3 Agreements among railway companies supplying a common market from competitive productive areas, which bring advantages to one such area, but disadvantages to the other, are violations of the act.4

6

Referring to the question of jurisdiction, it should be observed that the Commission has included in the "instrumentalities of shipment or carriage," subject to the act, a small road wholly within a state, but used for interstate traffic;5 likewise commerce between points in the same state, but passing through another state; an electric railway between the District of Columbia and the state of Maryland; a bridge extending across a stream from one state into another; 8 live stock carried through different states to stock yards in a centre of this business is interstate commerce until delivery is made at such yards;9 a foreign carrier; 10 and foreign merchandise carried on a through bill of lading. 11 Among the matters held not subject to its jurisdiction the Commission

has mentioned the following: a steamboat plying between two ports in the same state, but engaged in interstate traffic;1 fruit destined to New York, but shipped only to Jersey City from points in New Jersey;2 compelling railways to allow extra baggage to commercial travellers; 3 or to provide a particular kind of cars or other special equipment; to award counsel fees;5 to render judgments and enter decrees. The jurisdiction of the Commission in matters relating to orders on rates will be discussed in connection with court decisions.

6

What has been presented thus far may be considered a code for the administration of railways prescribed by the Interstate Commerce Commission. This code is based upon the formal decisions of the Commission. Its informal work appears at times to overshadow that which is formal; and in an estimate of the services of the Commission informal hearings and mediations should receive a high place. Indeed, there are persons who rate the mediatory work of the Commission

4

5. 193.

5 I. 339.

6

5.

166.

2 2. 142. 7 "This, then, is the significant fact in the life of the Commission: that out of the opinions expressed upon cases there has begun to develop a system of authoritative rules and established interpretations, which, sooner or later, will come to be recognized as a body of administrative law for inland transportation.” — H. C. Adams, "A Decade of Federal Railway Regulation," Atlantic Monthly, 81. 433-443.

higher than the performance of its formal functions. On the whole, "the Interstate Commerce Commission has done a great work; no commission or court in this country has ever done a greater work in the same length of time." 1

1 Senator Cullom, in The Railway Age (April 14, 1893).

CHAPTER III

THE SUPREME COURT AND THE INTERSTATE COMMERCE COMMISSION

MANY of the principles promulgated in the decisions of the Commission have been radically modified or overruled by the Supreme Court of the United States. For the purposes of this discussion only four groups of decisions will have to be considered: first, court decisions affecting the interpretation of the long and short haul clause; or, more definitely, what are the factors to be included in " circumstances and conditions" affecting long and short hauls. Second, the limitations placed by the court on the Commission's power over railway rates. Third, the power of the Commission in securing testimony. And fourth, decisions relating to agreements and contracts among competing railway companies. The treatment by the courts of the findings of fact before the Commission should, perhaps, also be commented upon in this connection, but that question can be considered equally well in the closing part of this paper.

The Interpretation of the Long and Short Haul Clause. On March 23, 1889, the Commission