at a nearer non-competitive point.28 Whether the competition at one point is controlling is a question of fact.29 Sec. 560. Third section does not relate to acts, the result of conditions beyond control of carrier.-When upon an issue as to a violation of the fourth section of the act, it is conceded or established that the rates charged to the shorter distance point are just and reasonable in and of themselves, and it is shown that the lesser rate charged for the long haul is not wholly unremunerative and has been forced upon the carriers by competition at the longer distance point, it must result that a discrimination springing alone from a disparity in rates cannot be held, in legal effect, to be the voluntary act of the carriers, and as a consequence the provisions of the third section of the act forbidding the making or giving of an undue or unreasonable preference or advantage will not apply. The prohibition of the third section, when that section is considered in its proper relation, is directed against unjust discrimination or undue preference arising from the voluntary and wrongful act of the carriers complained of as having given undue preference, and does not relate to acts which are the result of conditions wholly beyond the control of such carriers. To otherwise construe the statute would involve a departure from its plain language, and would be to confound cause with effect. For, if the preference occasioned in favor of a particular place by competition there gives rise to the right to charge the lesser rate to that point, it cannot be that the availing of this right is the cause of the preference.30 28. Interstate Commerce Commission v. Louisville & N. Railroad Co., 73 Fed. 409; Allen v. R. & Nav. Co., 106 Fed. 265, s. c., 98 Fed. 16. 29. Interstate Commerce Commission v. Louisville & N. R. Co., 73 Fed. 409. 30. East Tennessee, Virginia & Georgia Railway Company v. Interstate Commerce Commission, 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. R. 516, reversing Id., 99 Fed. 52, 39 C. C. A. 413 and Interstate Commerce Commission v. East Tennessee, Virginia & Georgia Railway Company, 85 Fed. 107; Interstate Commerce Commission v. Chicago Great W. Ry. Co., 141 Fed. 1003. The same evidence which warrants a finding that dissimilar cir Sec. 561. Competition may be between railroads.-The competition usually dealt with in reference to railroads is that of one railroad with another, and in that connection it has been held that undue discrimination may result from the suppression of competition at a particular point by an agreement or combination of the carriers.31 But the acquisition of one competitive road by another does not affect the question of unjust discrimination at a non-competitive point, where it affirmatively appears that the rates at the noncompetitive point have not been increased since the purchase of the competing road.32 Sec. 562. Competition of ocean lines should be taken into consideration.-There formerly was some question as to whether the competition of ocean lines should be taken into consideration in determining whether a dissimilarity of circumstances and conditions existed within the meaning of the act. This question has now been definitely settled by the Supreme Court of the United States in the affirmative; and the fact that the proportion of a through rate allowed for the carriage from the port of entry to the destination may be less than the rate scheduled for freight originating at the same place, and carried to the same destination, does not necessarily render the lesser rate unlawful.33 cumstances and conditions exist which justify a lower rate for a longer haul to one point than for a shorter haul to another also establishes that the charging of such rates does not give one point an undue preference and advantage over the other in violation of section three. Interstate Commerce Commission v. Nashville, C. & St. L. Railway Co., 120 Fed. 934, 57 C. C. A. 224. 31. Interstate Commerce Commission v. Louisville & N. R. Co., 190 U. S. 273, 47 L. Ed. 1047, 23 Sup. Ct. R. 687, affirming 108 Fed. 988, 46 C. C. A. 685, reversing 102 Fed. 709 and 101 Fed. 146. 32. Interstate Commerce Commission v. Southern Railway Co., 117 Fed. 741, affirmed, 122 Fed. 800, 60 C. C. A. 540. 33. Texas & Pacific Railway Co. v. Interstate Commerce Commission, 162 U. S. 197, 16 Sup. Ct. R. 666, 40 L. Ed. 940, reversing Interstate Commerce Commission v. Texas & Pacific Railway Co., 57 Fed. 948, 6 C. C. A. 653, 20 U. S. App. 6, and Id. 52 Fed. 187; Railroad Co. v. Redding, 17 Tex. Civ. App. 440, 43 S. W. Rep. 1061. Sec. 563. Interests of shipper, carrier and public should be considered. In passing upon questions arising under the act, the tribunal appointed to enforce its provisions, whether the commission or the courts, is empowered to fully consider all the circumstances and conditions that reasonably apply to the situation, and, in the exercise of its jurisdiction, the tribunal may and should consider the legitimate interests as well of the carrying companies as of the traders and shippers, and in considering whether any particular locality is subjected to an undue preference or disadvantage, the welfare of the communities occupying the localities where the goods are to be delivered is to be considered as well as that of the communities which are in the locality of the place of shipment.3 That "there may be cases where the carrier cannot be allowed to avail of the competitive condition because of the public interests and the other provisions of the statute, is, of course, clear. What particular environment may in every case produce the result cannot be in advance indicated. But the suggestion of an obvious case is not inappropriate. Take a case where a carrier cannot meet the competitive rate to a given point without transporting the merchandise at less than the cost of transportation and, therefore, without bringing about a deficiency which would have to be met by increased charges on other business. Clearly, in such a case, the engaging in such competitive traffic would both bring about an unjust discrimination and a disregard of the public interest, since a tendency towards unreasonable rates on other business would arise from the carriage of traffic at less than the cost of transportation to particular places. ''35 Sec. 564. Rules as to competition summarized.-"While the carrier may take into consideration the existence of com V. 34. Texas & Pacific Railway Co. Interstate Commerce Commission, 162 U. S. 197, 16 Sup. Ct. R. 666, 40 L. Ed. 940, reversing Interstate Commerce Commission v. Texas & Pacific Railway Co., 57 Fed. 948, 6 C. C. A. 653, 20 U. S. App. 6, and Id. 52 Fed. 187; Interstate Commerce Commission v. Louisville & N. R. Co., 73 Fed. 409. 35. East Tennessee, Virginia & Georgia Railway Company v. Interstate Commerce Commission, petition as the producing cause of dissimilar circumstances. and conditions, his right to do so is governed by the following principles: First, the absolute command of the statute that all rates shall be just and reasonable, and that no undue discrimination be brought about though, in the nature of things, this latter consideration may in many cases be involved in the determination of whether competition was such as created a substantial dissimilarity of condition. Second, that the competition relied upon be not artificial or merely conjectural, but material and substantial, thereby operating on the question of traffic and rate making, the right in every event to be enjoyed with a due regard to the interests of the public, after giving full weight to the benefits to be conferred on the place from which the traffic moved as well as those to be derived by the locality to which it is to be delivered.''36 Sec. 565. Condition that initial carrier shall have right to route beyond its own terminal is valid.-Although the Interstate Commerce Commission now has the power under certain conditions to form through routes and fix the maximum joint rates, unless those conditions exist which justify the use of that power by the commission, it is still a matter for each carrier to determine for himself whether he will enter into a contract with other carriers for through transportation, through joint traffic, through billing and division of through freight, and the right to select from two or more connecting carriers one which he will employ as the agency by which he will send freight beyond his own lines on through bills of lading, or as his agent to receive freight and transmit it on through bills of lading to his own lines, and without breaking bulk, is not taken away by the Interstate Commerce Act.37 181 U. S. 1, 45 L. Ed. 719, 22 Sup. Ct. 516, reversing Id., 99 Fed. 52, 39 C. C. A. 413, and Interstate Commerce Commission v. East Tennessee, etc. Railway Company, 85 Fed. 107. 36. Railroad Co. v. Behlmer, 175 U. S. 648, 20 Sup. Ct. R. 209, 44 L. Ed. 309, reversing Behlmer v. 37. Railway Co. v. Miami Steamship Co., 86 Fed. 407, 30 C. C. A. 142; Prescott & A. C. R. Co. v. Atchison, etc. Ry. Co., 73 Fed. So, subject to that same power of the commission, a joint through rate coupled with the condition that the initial carrier shall have the absolute right to route beyond its own. terminal is valid.38 But it must always be remembered that if such through routes and joint tariffs are voluntarily established by the carriers themselves, the carriers cannot attach thereto a condition which subjects any particular person or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatever.39 Sec. 566. Joint rate is not a basis for local rate. A joint rate by two railroads does not furnish a basis upon which either company would be bound to adjust its own local tariff. 40 The mere fact that the disparity between the through and the local rates is considerable does not, of itself, warrant the court in finding that such disparity constitutes an undue discrimination-much less does it justify the court in finding that the entire difference between the two rates is undue or unreasonable, especially when there is no person, firm or corporation complaining that he or they are aggrieved by such disparity.41 Nor does the fact that the portion of a through rate received by one. of several railroads transporting the goods as interstate commerce may be less than its own local rate constitute a case of undue discrimination against a local shipper. The court cannot take cognizance of the proportion in which freight earned by connecting railroads under a joint tariff schedule is divided between them.1 438, appeal dismissed, 84 Fed. 214, 28 C. C. A. 481, 51 U. S. App. 599. 38. Southern Pacific Company v. Interstate Commerce Commission, 200 U. S. 536, reversing 132 Fed. 829 and 137 Fed. 606. 39. Interstate Commerce Commission v. Southern Ry. Co., 123 Fed. 597. 40. United States v. Mellen, 53 Fed. 229; Tozer v. United States, 52 Fed. 917. 42 41. Texas & Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 16 Sup. Ct. R. 666, 40 L. Ed. 940, reversing Interstate Commerce Commission v. Texas & Pacific Ry. Co., 57 Fed. 940, 6 C. C. A. 653, 20 U. S. App. 6, and Id., 52 Fed. 187. 42. Parsons v. Railway, 167 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. R. 887, affirming 63 Fed. 903, 11 C. C. A. 489, 27 U. S. App. 394; Al |