A valuable instance of the play of opposing considerations of cost and

value of service in the classification of freight rates is afforded by

the complaint in 1908 of the pulp paper makers in Wisconsin, already

cited in another connection.[159] It appeared that for similar service

over the same roads, the rates per carload on saw logs for lumber were

only about one-half those charged for carriage of logs to be ground

into paper pulp. Judged on the basis of commercial value, hemlock and

spruce bolts, too short and often otherwise unfit for lumber, were

worth much less than saw logs; and yet they paid double the freight

rates. This was not because the pulp wood was less desirable as

traffic. In many ways it was more so. The haul was twice as long as for

saw logs. The paper mills brought relatively more supplementary tonnage

in the form of coal, food stuffs and supplies for workmen and their

families. Fully as much of the finished product to be reshipped to

consumers resulted. While smaller in volume, the pulp wood business was

far more permanent. It was growing rapidly while the lumber business

was declining. Moreover, the actual cost of service in hauling pulp

wood was fully as low as for lumber logs. Carloads were much heavier,

and were more regular in movement. In practice they involved no

milling-in-transit obligation, that is to say, no obligation to re-ship

the finished paper out over the same road; while all the saw log rates

carried this obligation--a matter of some moment to the railways. And

finally the value of the service to shippers of pulp wood was less than

to mere lumbermen; in other words, the paper makers were operating

under closer margins of profit; their plants were more costly, and

depreciated more rapidly. The defence of the carriers in this case was

not that the rates on pulp wood were too high in themselves, but that

the rate on saw logs was perhaps unduly low--the latter having been

crowded down to a minimum figure by competition in the early days of

the business by the lumber raftsmen who floated the saw logs downstream

from the forest to the saw mills. But of equal importance probably in

perpetuating the higher rates on pulp logs, was the assumption that

while the value of the bolts themselves was perhaps even less than

that of saw logs, the value of the resultant product, paper, was much

greater than that of lumber. But the Wisconsin Railroad Commission, in

entire harmony with the principle repeatedly laid down by the Federal

commission, held that the carriers must be guided by real distinctions

of cost from a transportation standpoint and not by gradations

of value. If the goods were bulky, awkward, or risky to handle,

perhaps requiring special appliances or equipment, relatively high

classification was permissible. But if they were substantially similar

for purposes of carriage, no gradation in rates based upon differences

in the ultimate uses to which the commodity might be put would be

upheld. Such was the reasoning of the Interstate Commerce Commission

in a decision, holding that fire, building and paving brick must be

accorded equal rates, regardless of their differing values.[160]

That the element of value is, however, not negligible is brought out

in a later Federal case,[161] wherein it was recommended that cheap

china, to be given away as premiums in the tea trade, be rated nearer

ordinary crockery or earthenware, even though shipped in the same

manner as high grade china ware. Under the official classification,

chinaware is rated first class if in boxes, and second class in casks.

Earthenware or crockery is carried at twenty per cent, less than third

class, in small packages (L. C. L.). On the basis of mere cost of

service, it would seem as if boxes of chinaware should have a lower

rating than casks. Boxes stow better than casks, with less risk of

breakage. But the commercial practice being to ship the finer grades

of chinaware in boxes, such shipments are graded higher because the

traffic will usually bear a higher rate. Thus considerations of cost of

service yield to those of value. The Interstate Commerce Commission,

however, noting the exceptional circumstances under which the tea

company distributed its cheap chinaware, recommended a revision of the

classification to meet the needs of the case; in other words ordering

a greater emphasis upon the elements of the value of the service, even

at the expense of relative cost of operation.

Our final conclusion, then, must be this: That both principles are of

equal importance; and that both must be continually invoked as a check

upon each other. The tendency to the elevation of cost of service to

a position of priority--rather characteristic of regulative bodies

and of legislators--is no less erroneous than the marked disposition

of railway managers to insist upon the universal applicability of

the principle of charging what the traffic will bear. Neither will

stand the test of reasonableness alone. Whether the one or the other

should take precedence can only be determined by a careful study of

the circumstance and conditions in each case; and in practice, the

instances where either principle becomes of binding effect to the

entire exclusion of the other, are extremely rare.

FOOTNOTES:

[119] 13 I.C.C. Rep., 319. The general investigation of wool rates is

another admirable instance. 23 _Idem_, 151.

[120] Wisconsin Railroad Commission, 1908. _Cf._ p. 181, _infra_.

[121] The diverse interests to be reconciled must also include the

lumbering centres once "next the stump," but now placed at a relative

disadvantage. The Eau Claire lumber case [reprinted in Railway

Problems, pp. 203-233] should be read in this connection.

[122] The remarkable rise of the sash, door and blind industry in

the South, as prejudiced by comparison with Chicago under an outworn

schedule of rates, is given in 23 I.C.C. Rep., 110.

[123] On the parity cases, consult Hammond, Railway Rate Theories,

etc., 1911, pp. 120 and 149.

[124] 14 I.C.C. Rep., 1-74 and Ann. Rep. I.C.C., 1911, p. 46. The later

judicial history will be found at p. 543, _infra_.

[125] P. 489, _infra_.

[126] Rates must not vary with profits. 13 I.C.C. Rep., 429; and

consistently held ever since.

[127] Arbitration of Cotton Rates, etc., Nov. 15 and 16, 1900; pamphlet

arguments of Southern v. Illinois Central Railways. Wool rates are the

same. 23 I. C. C. Rep., 151.

[128] This was the gist of the complaint in the Cincinnati Freight

Bureau case; pp. 248, 392 and 588, _infra_.

[129] Chapters XI and XIX, _infra_.

[130] Now covered by law since 1910. Pp. 512 and 571, _infra_.

[131] Pp. 324 and _infra_.

[132] Senate Committee on the Transportation Interests of the United

States and Canada, 1890, p. 362.

[133] 9 Int. Com. Rep., 318; in our Railway Problems, chap. XVII.

[134] Hammond, Railway Rate Theories, etc., 1911, p. 82, cites cases.

[135] Chapter VIII, _infra_.

[136] 5 Int. Com. Rep., 264; in our Railway Problems, chap. VIII.

[137] _Cf._ p. 255 _et seq., infra_.

[138] A carload of bamboo steamer chairs from San Francisco to New York

for $9.40 in the course of a rate war, would seem to be rather below

bed-rock. 21 I. C. C. Rep., 349.

[139] _Quarterly Journal of Economics_, V, 1891, pp. 438-65; reprinted

in Railway Problems, chap. V.

[140] _Cf._ Int. Com. Reports, 1903, p. 436.

[141] The Hepburn Committee testimony in 1879, p. 2893, is eloquent

upon this aspect of the question.

[142] 1st Annual Report, I.C.C., 1888. _Cf._ Strombeck, Freight

Classification, pp. 35-60.

[143] C., N. O. & T. P. case, testimony, vol. II, pp. 332-333.

[144] _Cf._ The Freight Rate Primer, bearing no authors or publishers

name, but largely compiled from addresses by President W. C. Brown of

the New York Central & Hudson River. Similar arguments and computations

occur in the testimony before the Senate (Elkins) Committee of 1905,

pp. 1162 and 2276.

[145] Now who will say that it is unreasonable to charge 7-1/2 cts. to

carry a suit of clothes from Chicago to New York.... Railways could

charge three or four times the cost of transportation for a pair

of drawers and the rates would still be reasonable.... But all the

first-class rates are of that nature.--Albert Fink, testimony, C., N.

O. & T. P. case, p. 290.

[146] Senate (Elkins) Committee, 1905, p. 1162.

[147] In _re_ Proposed Advances in Freight Rates, I.C.C., April 1, 1903.

[148] An interesting illustration of such determination of separable

or extra cost was the computation by which the movement expenses of a

train load of 50 cars of grain, 80,000 lbs. to the car, from Buffalo to

New York were fixed at $520. I. C. C. Reports, 1903, p. 397. Or again

in the estimation of the costs of operation in the express service

from New Orleans to Kansas City in the banana trade. I. C. C. Rep.,

No. 1235, 1908. The able Wisconsin Railroad Commission has carefully

studied a number of such cases, notable in its Two-Cent Fare decision

of 1906.

[149] _Cf._ Tunell, Railway Mail Service, Chicago, 1901.

[150] Personal correspondence.

[151] Details in vol. II.

[152] 13 I.C.C. Rep., 357.

[153] 5 I.C.C. Rep., 299.

[154] On raisins compared with citrus fruits: 22 I.C.C. Rep., 1.

[155] Interstate Commerce Commission, No. 797.

[156] More in detail in chap. IX.

[157] Senate (Elkins) Committee, 1905, testimony of Mr. Bird, Traffic

Manager of the St. Paul road. This is best measured, of course, by

revenue per ton mile, chap. XII, _infra_.

[158] Flour _v._ wheat, p. 135, _supra_.

[159] P. 148, _supra_.

[160] More in detail at p. 318, _infra_. Also Hammond, Rate Theories of

the I. C. C., 1911, p. 32.

[161] U. P. Tea Co.; I.C.C. Rep., No. 1569, 1908.

CHAPTER VI

PERSONAL DISCRIMINATION

Rebates and monopoly, with attendant danger to carriers, 185.--

Personal discrimination defined, 188.--Distinction between

rebating and general rate cutting, 188.--Early forms

of rebates, 189.--Underbilling, underclassification,

etc., 190.--Private car lines, 192.--More recent

forms of rebating described, 195.--Terminal and

tap-lines, 196.--Midnight tariffs, 197.--Outside

transactions, special credit, etc., 198.--Distribution

of coal cars, 199.--Standard Oil Company

practices, 200.--Discriminatory open adjustments from

competing centres, 202.--Frequency of rebating since

1900, 204-6.--The Elkins Law of 1903, 205.--Discrimination

since 1906, 207.--The grain elevation

cases, 211.--Industrial railroads once more, 212.

The philosophy of rebating has perhaps never been better described than

in the following quotation from the Cullom Committee investigation of

1886:

"Mr. WICKER. I am speaking now of when I was a railroad man.

Here is quite a grain point in Iowa, where there are five or

six elevators. As a railroad man, I would try and hold all

those dealers on a 'level keel,' and give them all the same

tariff rate. But suppose there was a road five or six or eight

miles across the country, and those dealers should begin to

drop in on me every day or two and tell me that that road

across the country was reaching within a mile or two of our

station and drawing to itself all the grain. You might say that

it would be the just and right thing to do to give all the five

or six dealers at this station a special rate to meet that

competition through the country. But, as a railroad man, I can

accomplish the purpose better by picking out one good, smart,

live man, and, giving him a concession of three or four cents

a hundred, let him go there and scoop the business. I would

get the tonnage, and that is what I want. But if I give it to

the five it is known in a very short time. I can illustrate

that better by a story told by Mr. Vanderbilt when he and his

broker had a deal in stocks. The broker came in and said, 'Mr.

Vanderbilt, I would like to take in my friend John Smith.' Mr.

Vanderbilt said, 'Let us see how this will work. Here are you

and myself in this deal now. We take in John Smith; that makes

a hundred and eleven. I guess I won't do it.' When you take in

these people at the station on a private rebate you might as

well make it public and lose what you intend to accomplish. You

can take hold of one man and build him up at the expense of the

others, and the railroad will get the tonnage."

"SENATOR HARRIS. The effect is to build that one man up and

destroy the others?"

"Mr. WICKER. Yes, sir; but it accomplishes the purposes of the

road better than to build up the six."

The force of this description of the underlying motive for personal

discrimination, so far as the carrier is concerned; namely to build

up one man at the expense of his competitors and to attach him in

interest indissolubly to the company, is well exemplified in a case

which occurred in 1908 at Galveston, Texas.[162] Practically all

railway traffic entering Galveston was destined for export. Wharfage

facilities were limited to two concerns, one of them being the Southern

Pacific Terminal Co. A uniform charge of one cent per hundredweight for

cotton seed meal and cake passing over the wharves of both companies

had been the rule for a long time. Yet it appeared on complaint that

one merchant had been granted wharfage space under discriminatingly

favorable conditions. Exemption from demurrage charges, free storage

room and other favors and a fixed rental of $15,000 per year

irrespective of the amount of his shipments, had enabled him, having

been in business only since 1898, to build up a very large traffic. The

export of cotton seed cake instead of meal had greatly increased since

1904. The business of all other competitors since this contract was

made had shrunk to insignificant proportions by comparison with that

done by this favored merchant. The margin of profit in the business

was so small that the difference between the charges and privileges

enjoyed by this individual and his competitors, was forcing them all

out of business. It was estimated by the Interstate Commerce Commission

that if the customary wharfage charges had been paid, the rental would

have been nearly $30,000 for the year 1907, irrespective of other

favors. The cotton planters complained also that this monopoly limited

their market and depressed business. It is clear that the larger the

business, that is to say the more nearly it became a monopoly, the

smaller became the wharfage charges per hundredweight under this system

of a fixed rental; and, in consequence, the greater was the disability

of the other shippers. The advantage to the railroad appeared in

a contract entered into, which provided that all traffic for this

individual should be routed over the Southern Pacific or its connecting

lines. As he had practically gathered in all the cotton seed export

business of Texas and the adjoining states within two years, it is

evident that this consideration was of great value to the railroad. The

economic motive in this case and in the one previously cited was the

same. It will be found in fact to underlie almost all cases of personal

favoritism and discrimination.

The supreme disadvantage in building up a great monopoly in order to

win traffic for a railroad is, of course, that the moment the shipper

becomes sufficiently powerful, he can play off one road against

another, thus becoming practically master of the situation. Sindbad is

soon overwhelmed by the old man of the sea. And the weaker the road

financially, the more powerful is the appeal, to which at last even the

strongest lines must succumb. The history of the Standard Oil Company

during the eighties clearly exemplifies this. The rapid rise of the

cattle "eveners" yet earlier, until, as the private refrigerator car

companies they controlled the situation, was primarily traceable to the

same causes. The late J. W. Midgly[163] gives a forcible illustration

in the attempt in 1894 of ninety-five railroads to reduce the mileage

allowance paid for use of oil tank cars owned by private companies

from three-fourths to one-half cent per mile, loaded and empty. The

Union Tank Line promptly replied that it would in that event at once

concentrate all its vast tonnage to points north and west of Chicago,

upon the single line--presumably the weakest one--which would continue

the old rate. This argument was irresistible; and in the old days of

unregulated competition was in the nature of things bound to be so.

Careful distinction must be made at this point, between personal

discrimination and general rate cutting. Rebating,--that is to

say, departure from published tariffs,--occurs in both cases. The

difference between the two is that in the one case it is special,

particular and secret; while in the other it is so general, if not

indeed universal, as to be matter of common knowledge. Rebating, in

other words, is a common feature of rate wars. But, on the other hand,

general harmony in the rate situation by no means implies the absence

of personal favoritism. During a wide-open rate war, indeed, the most

iniquitous aspect of rebating,--inequality of treatment as between

rival shippers,--may be quite absent. All may be getting the same

rate, namely a cut rate; although the chances are of course that the

bigger the shipper, the more substantial the concessions offered. It is

important to keep this distinction clear, especially since the railways

have awakened to the losses to themselves attendant upon rate wars.

All parties concerned are probably agreed in the hope of eliminating

the rate war forever. But there is not the same evidence of either

an intent or desire on the part of railway officials to get rid of

what, from a public point of view, is even more insidious and unjust;

that is to say, the secret concession of favors to a few chosen large

shippers. General rate wars, as will later appear, are probably a thing

of the past.[164] But secret rebating seems, on the other hand, to be

an evil which must be combatted vigorously and un-intermittently in

order to uproot it as a feature of American industrial life. And of

course it must cease. For it is the most prolific source of evil known

in transportation. It has probably had more to do with the creation

of great industrial monopolies than any other single factor. The first

feature of any reform of our intolerable "trust" situation, must be to

keep the rails open on absolutely even terms to all shippers, large or

small.

The keynote of discrimination is, as we have said, the creation of

monopoly, or, at all events, of so large an aggregation of shipments,

that a profitable partnership between the shipper and the railroad

results. This is clear in recent indictments which charge that the

railroads concerned, having selected one large firm of forwarders in

New York and Chicago are giving them a monopoly in respect of all

imports. In the case of the great beef packers, the railroad having

once built up a shipper by favored rates, may continue in the enjoyment

of this concentrated tonnage with greater security and profit than if

it moved in a multitude of small shipments by numerous competitors. Of

course there is another less common form of rebating which, so far as

its profit is concerned, is limited to the particular dishonest railway

official who arranges the matter. Such favoritism as this, however,

represents a loss to the company; and has always been stamped out by

the carriers when discovered. The principal form above described,

is much more difficult to uproot. And yet for some reason, it is a

distinctively American abuse. European countries seem never to have

suffered from it, to any such degree as has the United States. It is,

as has just been said, perhaps the most iniquitous, the most persistent

and until very recently the most nearly ineradicable evil connected

with the great business of transportation.

Rebating in the early days consisted in simply refunding by direct

payment to the favored shipper, a certain proportion of the freight

bill. This refund might be in cash, in presents to himself or his

family, in salary allowances to clerks, in free passes, or in free

transportation of other goods. In a recent case in New York it has

taken the form of importer's "commissions." But, since 1887 at least,

an inconvenience in all such transactions is their necessary entry

in some form or other upon the books of the company. Of course such

rebates could be covered up as a fictitious charge to operating

expenses; or, as in the case of the Atchison in 1893, might be

carried as an asset, as if such refunds would ever be paid. Nearly

$4,000,000 was thus entered as padding in Atchison assets, when it

went into a receiver's hands at that time.[165] Much of the flagrant

Standard Oil rebating in the eighties was almost openly, and certainly

boldly, carried on by these means. But public sentiment was always

against it; and of course, it was a breach of good faith as between

the railways themselves, in their endeavor to maintain agreed rates.

Secrecy, therefore, always attaches to these transactions; and the most

ingenious devices were invented to confer favors without detection.

Underclassification of freight was a very common device in the old

days. It has reappeared again since 1907 in much the same form. There

is a great difference between the freight on a keg of nails and of fine

brass hardware or cutlery. Who is to know whether a shipment be billed

as one or the other? Is every box of dry goods to be examined in order

to discover whether it contains silks or the cheapest cotton cloth? A

carload of lumber or cordwood might easily by prearrangement be filled

inside with high grade package freight. The utmost vigilance is in fact

necessary on the part of carriers, to prevent such fraudulent practices

by shippers. Under the Joint Rate Trunk Line Inspection Bureau in 1893,

183,575 such false descriptions or underweighings were detected on

westbound shipments from seaboard cities alone.[166] What the amount

of such Underclassification of freight by collusion between agent and

shipper was, can only be conjectured. Even more difficult to detect was

the practice of under-billing.[167] At a certain time, the rate on

flour from Minneapolis to New York was thirty cents per hundredweight,

divided between connecting roads in the proportion of ten cents from

Minneapolis to Chicago, and twenty cents from there on to destination.

In the meantime, as against this ten cent proportion of the through

rate to New York, the local rate from Minneapolis to Chicago was twelve

and one-half cents. As between two rival shippers, the one sending to

Chicago on a New York through rate instead of a local one, would enjoy

a clear advantage of twenty-five per cent. over his competitor. And

who was to know whether a car billed through to New York, was really

going beyond Chicago or not? In one period of three months, 1098 cars

thus through billed to New York were turned over at Chicago to a belt

line road; and only 468 actually went on to that destination. About

sixty per cent. of the traffic was being rebated by this means. Very

complicated arrangements of this sort were rife in the Missouri river

rate wars on grain in 1896. This was known as the "expense-bill"

system; or "carrying at the balance of the through rate."[168]

Many services or facilities are worth as much to a merchant as a direct

refund in cash. He may be given free cartage. This was a very common

expedient in the early days; being fully considered by the Interstate

Commerce Commission.[169] Or free storage on wheels or in freight

houses may be utilized as a cover for favoritism. A low carload rate

might be given, and then the goods be held, storage free, by the

railway at some central point; to be subsequently delivered piecemeal

as sold. The dealer would be relieved of all expense for warehousing

as well as of high less-than-carload rates from the initial point of

shipment. The competitor who paid the less-than-carload rate on an

equal volume of business would be sadly handicapped. Cases are on

record where fish was thus stored free from November to February,

being reshipped on order in small lots. Or an excessive allowance might

be made by the railway for some service or facility afforded by the

shipper. The beef interests first got their hold upon the carriers by

demanding liberal rebates in return for acting as "eveners" in the

partition of traffic between the trunk lines about 1873. Complaint

against excessive allowances to favored grain elevator owners, was

common all through the West for years. The elevator allowance cases

before the Interstate Commerce Commission in 1906-1910 concerning

practices on the Union Pacific lines illustrate the delicacy of the

issues involved.[170]

Deductions from the full tariff for the use of special equipment owned

by shippers, has been one of the commonest means of building up great

monopolies.[171] The allowances to the Standard Oil Company for the use

of its tank cars, before the construction of pipe lines, and especially

prior to 1888, were a source of great unrest.[172] But the construction

of pipe lines has not lessened their importance. It is on record that

the use of private cars in other lines of business has led to grave

abuses. When stock cars and beef refrigerator cars, owned by private

shippers, first began to be used about 1883-1884, they were much

sought after by the railroads as traffic. They moved regularly, not by

seasons; the volume of business was large and rapidly growing; it was

concentrated at a few large initial points; much of it was high class

and very remunerative. With the enormous extension of refrigeration

to cover the long-distance movement of fruit and vegetables, a still

more powerful encouragement came into play. These latter businesses

were highly seasonal. Few roads could afford to maintain highly

specialized equipment to care for a business of a few weeks length.

But a private company operating all over the country, could utilize

its cars first for early vegetables and fruits from the south, then

from the middle west or the Oregon-Washington region, and finally in

winter for oranges from California or Florida. The number of these cars

rapidly increased until by 1903 there were 130,000 in service,--in fact

about one-eleventh of all the freight cars in the United States were

privately owned. The so-called Armour interests, primarily engaged in

the packing business, were by far the largest single concern.

The system of payment for the use of these cars consisted of an

allowance, based upon the mileage performed. This used to be one cent

per mile, loaded and empty, for refrigerator cars. In 1894 a determined

effort was made by the carriers to reduce this below the point then

reached of three-fourths of a cent per mile. But the extraordinary

concentration both of ownership and traffic, rendered it easy for the

car companies to defeat the proposition. In the meantime the steady

increase in volume of traffic, making whole trainloads possible,

together with the growth of very long distance business, made it

imperative that these trains be operated at high speed with few stops.

This at once enormously enhanced the earning power of each car, as

based upon mileage. The performance was often as high as four times

that of the ordinary freight cars.

Under these new conditions, at the current rate of earnings, a car

would pay for itself in three years, besides paying all expenses of

maintenance. The burden of these allowances became very great. The

situation some years ago is well described by a former member of the

Interstate Commerce Commission, as follows:--

"Investigations made by the Interstate Commerce Commission at

different times have disclosed to some extent the very large

sums received by shippers as mileage for the use of such cars.

"By an investigation made in 1889 it appeared that on a single

line of road between Chicago and an interior Eastern point--a

distance of 470 miles--refrigerator cars owned by three

shipping firms made in nine months, from August 1, 1888, to May

1889, 7,428,406 miles, and earned for mileage $72,945.97, being

about $8,112 a month or substantially at the rate of $100,000 a

year.

"By another investigation, made in 1890, it appeared that

private stock cars to the number of 250 had been used upon

a line made up of two connecting roads between Chicago and

New York, beginning with 150 cars on September 1, 1880,

increased 30 more a month later, 20 more another month later,

and reaching the total of 250 in June, 1890; that the cars

altogether had cost $156,500, and had earned for mileage in

two years, from September 1, 1888, to September 1, 1890,

$205,582.68; that the entire expense to be deducted during that

period for car repairs and salaries for their management was

$34,050.48, leaving net revenue to the amount of $171,532.20,

being an excess of $15,032 above the whole cost of the cars.

The cars were, therefore, paid for and a margin besides in two

years, and, thereafter, under the same management and with a

corresponding use of the cars, an income of upward of $100,000

a year was assured on an investment fully repaid, or, in

effect, on no investment whatever."

By 1903 the railroads were paying over $12,000,000 annually for the use

of such equipment.

With the growth of their power, the extortionate demands of these

private car lines, both upon the railroads and the shipper, steadily

enlarged. From the roads they often compelled fictitious mileage

allowances; and from the shipper the most outrageous charges were made

for icing and other services en route. The reports of the Interstate

Commerce Commission for 1903-1904 and of the Senate (Elkins) Committee

of 1905 deal fully with these abuses. Moreover the Armour company

gradually forced other competitors out of business, and with the growth

of monopoly, its exactions became even more extreme. The following

instance is typical.

"In 1898 the Armour Car Lines Company was furnishing cars

for the movement of Michigan fruits from points on the Pere

Marquette Railroad to Boston in competition with other private

car companies, and its charge for refrigeration to Boston was

$20 per car. Its present charge to Boston is $55 per car.

Before the present exclusive contract was entered into between

the Armour Car Lines and the Pere Marquette Railroad Company

the actual quantity of ice required was charged for at $2.50

per ton. Under this system the cost of refrigerating cars from

Pawpaw, Mich., to Dubuque, Iowa, averaged about $10 per car,

while the present schedule of the Armour Car Lines is $37.50.

The cost of icing from Mattawan, Mich., to Duluth was $7.50,

as shown by an actual transaction in the year 1902, while the

present refrigeration charge between those points is $45. The

cost of icing pineapples from Mobile to Cincinnati under an

exclusive contract with the Armour Car Lines is $45, while

the cost of performing the same service from New Orleans to

Cincinnati over the Illinois Central is $12.50 per car."

Fortunately the progressive enlargement of Federal powers of

supervision has tended to check these exactions. But the system of

special allowances for the use of privately owned equipment, is one

which needs the most careful watching by the authorities.

With the passage of time, and especially since 1896, new and even more

elaborate schemes for rebating have come to light. One of the most

ingenious, which was discovered about 1904 to be very widespread,

was the use of terminal or spur track railway companies.[173] In

Hutchinson, Kansas, for example, were salt works having a capacity of

some 6000 barrels a day. Two railways were available for shipments.

A new company was incorporated, all its stock being held by the salt

works owners, which constructed sidings to both railroad lines. The

spur track was less than a mile long and cost only about $8000 to

build. But the company was chartered as the Hutchinson and Arkansas

River Railroad. Its officers were the owners of the salt mills.

It owned neither engines nor cars. Yet it entered into a traffic

agreement with the Atchison road for a division of the through rate

to many important points, its share being about twenty-five per cent.

So substantial a pro-rate was this, that in a few months the H. and

A. R. R. received back some fifteen thousand dollars as its share of

the through freight rates. And every dividend declared by it was, of

course in effect a rebate enjoyed exclusively by this particular mill,

as against less favored competitors.

Obviously, rebates assuming the above-described form are open only

to very large shippers, to whom it is worth while to incur the

considerable expense. But many concerns have already such trackage in

or about their works. Nothing is needed except to incorporate them

separately, and then to enter into suitable traffic agreements with

standard roads. Many of the so-called trusts were implicated in such

transactions, about 1904-1905. The International Harvester Company

at Chicago had for years performed much of its own terminal service;

and until 1904 was allowed as high as $3.50 per car for switching

charges by connecting railroads. It then incorporated the Illinois

Northern Railroad, which was promptly conceded twenty per cent, of

all through rates, with the Missouri river rate as a maximum. On this

traffic it would be allowed as high as $12 per car, instead of $3.50

as before. The Illinois Steel Company afforded in 1905 an even more

flagrant example. Apparently it had enjoyed extra-liberal proportions

of through rates since 1897, by means of its separately incorporated

and, in fact, really important terminal road. But an allowance of $700

to $1000 for hauling a trainload of coke some seven miles, yielded a

profit on the business of perhaps ninety per cent. It was an advantage

which no competitor could hope to equal. No doubt the practice of

switching allowances was properly used at the start. But the large crop

of cases discovered in 1904-1905 proved that they had come to be very

widely used as a cover for rebating. It is not always easy, however,

to decide when such an allowance ought to be made to a privately owned

terminal company. The Anheuser-Busch case, decided in June, 1911, with

a dissenting opinion by Commissioner Harlan, shows how intricately

involved such issues may become.[174]

The so-called "midnight tariff" was a strictly legal way of conferring

favors upon certain shippers. It was much in evidence during the grain

wars between lines serving the Gulf ports about 1903. And it seems

to have been a device used at times all over the country. A traffic

manager wishing to steal all the business of a large shipper from some

competing road, and to build him up at the expense of his rivals,

secretly agrees to put into effect a low rate on a given date. The

shipper then enters into contracts calling for perhaps several hundred

carloads of grain to be delivered at that time. This reduction is

publicly filed, perhaps thirty days in advance, with the Interstate

Commerce Commission at Washington. But who is to discover it, in the

great medley of new tariffs placed on file every day? Yet this is not

all. A second tariff, restoring the full rate, is also filed to take

effect very shortly,--perhaps only a day,--after the reduction occurs.

All these are public, and open to all shippers alike. But only the one

who was forewarned is able to take advantage of them. He rushes all

his shipments forward while the reduced rates are in effect. Before

other competitors can assemble their grain or other goods, the brief

reduction has come to an end; and rates are restored to their former

figure.

The President of the Chicago Great Western Railway has concisely

described the commercial effect of one of these midnight tariffs.

"A clean profit, he says, over all expenses of one half of a

cent per bushel is a satisfactory profit to the middleman;

and a guaranteed rate of transportation of even so small a

sum as one-quarter of a cent per bushel less than any other

middleman can get, will give the man possessing it a monopoly

of the business of handling the corn in the district covered by

the guaranty. Why? Such are the facilities of trade by means

of bills of lading, drafts, telegraphs, banks, etc., that

to do an enormous corn trade, the middleman requires only a

comparatively small capital to use as a margin. A capital of

$50,000 is ample thus to handle 15,000,000 bushels, and with

activity, double that amount, per annum. One quarter of a cent

per bushel profit on 15,000,000 bushels would amount to $37,500

which is equal to .75 per cent. per annum on the capital

employed."

A similar device was used by the Burlington road in its dealings with

the Missouri river packing houses on export traffic. They signed an

agreement making a rate to Germany of twenty-three cents per hundred

to last until December 31, 1905. Before the expiration of this time,

however, the roads concerned, publicly filed an amended tariff

presumably for all shippers of thirty-five cents per hundred. They

nevertheless continued the old rate to the packers. This case went to

the Supreme Court which decided in 1908 that the device was unlawful

and discriminatory.[175]

And then again there are all the possibilities of the printer's art to

be used, in connection with the preparation of elaborate tariffs.[176]

The tariff of "33 cents per hundredweight" may conceivably be a

typographical error, to be speedily corrected in a supplementary

hektograph sheet filed the next day. Involved and elaborate rate

sheets may be reprinted with only one little change among a thousand

items left as before. Different tariffs may interlock with complicated

cross references. In one case in 1902 it took seven different tariffs

to enable one to compute the rate for a given shipment. In twelve

months, to December 1907, there were filed with the Interstate Commerce

Commission 220,982 such tariffs, each containing changes in rates or

rules. Some "expire with this shipment,"--and some agree to "protect"

any rate of any competing carrier, that is to say, to meet it if it

happen to be lower.

An entirely different plan of rebating,--and a most effective one,--has

to do with apparently unrelated commercial transactions.[177] Many

shippers are large sellers of supplies to the railroad. How easy then

to make a concession in rates to an oil refinery for example, by

paying a little extra for the lubricating oil bought from a subsidiary

concern. The Federal authorities in recent years and especially

in connection with the prosecution of the Standard Oil Company in

1908-1911, have discovered the most extraordinary variations in the

prices paid by railroads for supplies. Independent concerns were often

not allowed to compete in the sale of lubricants at all. It would be

difficult to prove any connection between so widely separate sets of

dealings; and yet it is clear that rebates are often given in this way.

Or even more fruitful as an expedient, especially in these later days

when rebating is a serious offence, why not confer a favor by extra

liberality in allowances for damages to goods in transit? In 1909 the

so-called Beef Trust was specifically ordered by the Attorney General

of the United States to desist from such practices. Positively the only

way to detect such fictitious allowances for damages, is to ferret out

each case by itself. This is a slow and necessarily expensive process.

Damage allowances and _quid pro quo_ transactions in the purchase of

supplies, are indeed almost "smokeless rebates," as they have aptly

been termed.

Personal discrimination may be as effective upon competition through

denial of facilities to some shippers, as through conferring of special

favors upon others. Practices of this sort have been quite common in

the coal business, especially in the matter of furnishing or refusing

to furnish an ample supply of cars or suitable spur tracks to mines. In

the well known Red Rock Fuel Company case in 1905,[178] the railroad

definitely announced its policy, "not to have a lot of little shippers

on its line who would ship coal when prices were high and then shut

up shop and go home and let the large shippers have the lean years."

The development of over 4,000 acres of coal lands was thus denied in

favor of the large companies, until the Interstate Commerce Commission

took the matter up. A year later came the startling revelations upon

the Pennsylvania Railroad as to the practice of discrimination in

furnishing cars to coal mines.[179] A comprehensive investigation by

the company itself resulted in the discharge of a number of high

officials. It appeared, for example, that the assistant to President

Cassatt had acquired $307,000 in stock of coal companies without cost;

that a trainmaster for $500 had purchased coal mine stock which yielded

an annual income of $30,000; and that one road foreman was given three

hundred shares of the same company stock for nothing. In all these

cases the object was to secure not only an ample supply of cars for

the favored companies, but perhaps even the denial of suitable service

to troublesome competitors. In this regard, the old practices of the

Standard Oil Company in the eighties are recalled. Not only, as in

the celebrated Rice case,[180] did it demand heavy refunds on its own

shipments, but it also compelled the imposition of a surtax on its

competitors' traffic which was to be added to its own special allowance.

Yet other means of favoring large shippers at the expense of small

ones, are almost impossible to eradicate. Certain of these may be

illustrated by recently discovered practices of the Standard Oil

Company. They are fully described in a special report of the United

States Commissioner of Corporations in 1905. Upon the basis of this

evidence, extraordinary efforts were made by the Federal authorities

to secure convictions and to impose heavy fines for violation of the

Elkins law. But the company escaped heavy penalties, in the main, by

reason of legal technicalities. The prosecutions of 1906-1909, however,

cannot be regarded as valueless, merely because the company escaped

the imposition of fines aggregating millions of dollars. The moral

effect of it was thoroughly good; and it is now clear that laws can be

so drawn as to apply in future. Nor can any student of the evidence

doubt for a moment, that, whether strictly an infraction of the law

or not, the net result of these practices was to confer an advantage

upon this large shipper, not open to its smaller competitors. Certain

of its advantages, such as the ownership of pipe lines from the

wells to the seaboard refineries and the strategic location of its

plants, are the fruit of great resources and keen business acumen. But

other advantages, particularly the relative rates on refined oil from

Standard Oil plants and from centres of independent refining, are,

according to the report of the Bureau of Corporations, due to pressure

brought to bear upon the carriers. Whether they are or not, the result

is discriminatory just the same.

The reason for the persistent pressure for low rates on petroleum

products is, of course, that the cost of manufacture is so low

relatively to the expense of transportation. An ample manufacturing

profit is one-half cent per gallon of crude oil; and the average cost

of refining does not exceed that amount. Yet a half cent will scarcely

pay freight for more than one hundred miles. Hence it follows that

for distances greater than this, the question of profit or loss may

entirely depend upon the delicate adjustment of the freight rate. In

this regard, a great company shipping all over the country has a great

advantage over smaller competitors with a strictly local market, in

that it can play off one rate against another. Thus, in one notable

case, cited by the Bureau of Corporations, the Burlington road gave

an absolutely unremunerative rate from the Standard refinery at

Whiting near Chicago to East St. Louis, thereby enabling troublesome

competition to be subdued; but it was recompensed by the payment of

heavier charges on shipments to other points on the Burlington system,

where, there being no competition, the high freight rate could be

shifted on to the consumer. The Commissioner of Corporations gives

one instance on the Northwestern road of a carload rate from Whiting

to Milwaukee in order to meet water competition from independents at

Toledo, which netted the carrier just ninety-two cents for the carriage

of 24,000 pounds of oil a distance of eighty-five miles, with free

return of the empty car.

The peculiarity of many of these rate adjustments of the Standard Oil

Company of late years was that they were publicly filed; and hence not

open to legal attack. This does not however detract in the least from

their discriminatory character. One example, right here in New England,

now happily corrected, may be cited from the records of the Interstate

Commerce Commission for 1906.[181] The southern half of New England

was mainly supplied with kerosene from the great Standard refinery

at Bayonne, New Jersey. The oil was brought there from the fields by

pipe line; and, being refined, was distributed by tank vessels all

along the coast, with a short rail haul thereafter to inland points.

The total cost to the Standard company was estimated by the Bureau of

Corporations at between fourteen and sixteen cents per hundredweight.

To meet this, the independent western refiners had to ship all the

way by rail. This was more expensive in any event; but for some years

they found their handicap greatly increased by the refusal of the New

Haven road to join in any joint through rate. The western independents,

therefore, had to pay the sum of two local rates, up to and beyond the

Hudson river, thereby bringing their transportation up to approximately

thirty cents per hundred pounds. In other words, their cost of carriage

per gallon was enhanced more than enough to constitute a fair refining

profit in itself. The result was the practical exclusion of competition

from this source. Fortunately, however, after this investigation the

New Haven was ordered to pro-rate with the western roads, thereby

overcoming about half of this disability. This case clearly evinces

the necessity of effective Federal regulation of such matters as joint

rates; and it also shows how possible it may be to so adjust tariffs,

openly and even legally, as to favor one shipper over another.

Unlike the preceding instance, most of the Standard's rebates have

been, in fact if not technically, secret. Perhaps the most flagrant

case occurred in the rates from Whiting to the southeastern states. The

Bureau of Corporations estimated that $70,000 a year was saved by this

device; and all competition from independent sources was eliminated

within that territory. The Illinois Central and Southern roads cross at

an obscure point in Tennessee known as Grand Junction. This was made a

centre of distribution for the entire South.[182] But the rate under

which the oil moved,--and in one given month 169 carloads were thus

carried,--was given on a special tariff, publicly filed at Washington,

to be sure, but prescribing the rate, not from Whiting but from Dalton,

Illinois, to Grand Junction, Tennessee. Dalton was an almost unknown

station, near the refinery. Of course any other shipper who happened to

know of it, and who happened to have oil to ship from Dalton to Grand

Junction, could have had the same rate of thirteen cents a hundred

pounds. But he would find it moved over a roundabout route, over four

different connecting lines, instead of over the rails of a single

company. As against this rate of thirteen cents, the only routes known

to the Ohio independent producers charged from nineteen to twenty-nine

and one-half cents per hundred pounds. Meantime the Standard's oil was

by this devious means reaching every point in the South at prices which

no competitor could hope to meet. In one case, the oil going by way of

Grand Junction, travelled over one thousand miles when the direct route

from Chicago was only a little over five hundred miles. The adjustment

was everywhere such that, even on the commonly known tariffs, Whiting

enjoyed a special advantage over the sources of independent oil.

Atlanta, Georgia, is only 733 miles by short line and 1003 miles by

way of Grand Junction from Whiting. Toledo, with its independent

refineries, is distant only 687 miles. Yet despite this fact, the

commonly known rates were shown to be, from Whiting, 33.2 cents as

against 47.5 cents from Toledo. So, even without the Grand Junction

contrivance, the Standard was seemingly favored more than enough. It

should be added, in conclusion, that while the Grand Junction rate was

publicly filed, its discriminatory character stands proven by the fact

that all the actual shipments were "blind billed;" that is to say, no

local agent knew what was the rate actually paid. Such blind bills

of lading are photographically reproduced in the report above named.

Moreover the ill repute of the transaction was indicated by the prompt

cancellation of the rate when discovered in 1905. But in the meantime

it had done its work, and fixed monopoly prices for an indispensable

product over a quarter of the territory of the United States.

Aside from the palpably dishonest secret rebating, the real root of

the difficulty with many of the other big shippers beside the Standard

Oil Company,--and an abuse moreover exceedingly hard to correct,--is

the open adjustment of rates from competing centres of manufacture

or distribution in such a way as to confer favors. The Bureau of

Corporation's report on the Transportation of Petroleum Products deals

fully with this. Relative rates, as above stated, always seem to favor

Chicago (Whiting) as against the centres of independent refining such

as Cleveland, Pittsburg, or Toledo. Formerly, before the great refinery

was established in 1890 at Whiting,--which, by the way, produces

one-third of all the kerosene used in the United States,--the roads

from these centres made joint through rates all over the country. They

still do so on many other commodities. But on petroleum products they

have been withdrawn. The result is that everywhere, except where they

can secure entrance by water, the disability in rates against the

independent refiner is most effective. That much the same conditions

prevail in other lines of business is affirmed on the highest

authority. The _Railway Age Gazette_ has repeatedly protested against

the pressure which is now brought to bear against the carriers by such

organizations as the Illinois Manufacturers' Association to substitute

open but discriminatory local rates for the old secret favors upon

which the great shippers throve for so many years. Fortunately,

however, this situation in some cases relieves the Federal government

of the burden of detection of maladjustments of this sort. For the

communities aggrieved are constantly on the watch to protect their

interests against rival cities. This factor clearly appears in the

sugar and cement lighterage cases in 1908.[183] Carriers at New York in

order to equalize rates with carriers serving Philadelphia refineries,

grant "accessorial allowances" for the use of lighters or for cartage,

in order, as they aver, to overcome the disability against their

clients. But Philadelphia shippers are ever on the alert to detect

such favors given at New York; and substantially aid the government in

eradicating the evil. In the grain elevator allowance cases, likewise,

at Omaha and Council Bluffs in 1906-1909, not only unfavored shippers

at these points but St. Louis grain merchants as a body, intervened as

complainants against the system. The powerful motive of self-interest

thus invoked is of great service.

Before dismissing these recent and widely "muck-raked" oil cases,

it may not be out of place to mention the new interpretation of the

Elkins law which has resulted therefrom. One concerns the definition of

separate offences. In the notorious $29,000,000 fine case, the Federal

Circuit judge applied the maximum penalty of $20,000 for each offence

to each separate carload in a large aggregate of shipments. On review

of the case, each separate settlement of freight rates was defined as

the unit of an offence. As entire train loads had been forwarded or

paid for at one time, this materially reduced the aggregate of possible

penalties. And, in the second place, the question of legally provable

intent was raised. The turning point in the $29,000,000 fine case, was

the ruling of the judge on review, that it was necessary to prove that

a standard rate, higher than the one actually paid, had actually been

filed at Washington; and that the defendant had knowingly accepted a

concession from this figure. These points the government was unable in

fact to establish; and this ended the case.[184]

While general rate cutting has been less common since 1900, partly also

because the roads were rapidly forming great combinations especially

in order to eliminate it, subsequent developments have proved that

personal and secret favoritism to large shippers was still very common.

Despite all they could do to withstand pressure, traffic managers

seemed powerless without the aid of the law. Perhaps the greatest

revelation of the extent of personal rebating was afforded by the great

Wisconsin investigation under the leadership of Governor La Follette in

1903.[185] The original purpose of this inquiry was fiscal; namely, to

examine into the subject of railroad taxation. But its scope speedily

widened, and at last skilled accountants were put into the books of all

the railroads traversing Wisconsin.

The facts elicited by the Wisconsin investigation were startling. For

the years 1897-1903, the direct rebates appearing in the accounts of

the Wisconsin lines alone,--taking no account of other forms of rebates

such as excessive damage allowances and the like,--were $7,000,000.

The Chicago and Northwestern alone had allowed more than half of this

amount. And from what is now known of other forms of allowance, the

total must have been indeed very great. In one year recently, there

was evidence to the effect that rebates on the New York Central lines

amounted to $1,000,000. According to its own admission, the Michigan

Central road, in 1902-1903, made allowances of $586,000. The rebating

to the beef packers, especially on export business during 1902, was

notorious. No wonder the progressive railroad leaders desired to put

an end to this leakage of revenue. And at their request, the wise

legislation known as the Elkins Amendments to the Act to Regulate

Commerce was passed in 1903.[186]

The Elkins law of 1903 not only came at a time when the carriers were

in need of every cent of revenue to tide over a hard year, but it also

followed demonstration under the test of judicial procedure, that

convictions for rebating were practically impossible under the old

law. To convict for unjust discrimination it was necessary to show,

not merely the allowance to one favored shipper, but the fact also had

to be proved that no such allowances were made to others on the same

sort of traffic under similar conditions. This could scarcely ever be

done. In fact, during almost twenty years, there had been less than

a score of convictions. Most of the prosecutions had failed utterly.

Both government and carriers pressed for legislation. This was promptly

given in the Act of February 19, 1903. There were four important

features of this law. Railway corporations, not merely individuals as

before, were now made directly liable to prosecution and penalties. The

tariff filed became the lawful standard. The fact that all shippers got

the same low rate was, therefore, no longer a defence. In the third

place, the shipper as well as the carrier could be held accountable. In

other words, accepting as well as giving rebates, became unlawful. And,

finally, jurisdiction was conferred upon the Federal courts to restrain

any departure from published rates or any "discrimination forbidden

by law" by writ of injunction. This fully legalized a rather doubtful

course of procedure to which the Interstate Commerce Commission had

been compelled to resort as a last weapon in the rate wars on grain and

beef since 1901. It also abolished the penalty of adjustment; imposing

fines instead. But this action was subsequently rescinded in the law

of 1906.

The record of the vigorous prosecutions against rebating under the

Elkins law,[187] affords conclusive evidence, not only as to the

widespread extent of the evil, but as to its identification with many

of the large industrial combinations. The history of the activities

of the Interstate Commerce Commission is to be found in its file of

annual reports. But little seems to have been done for the first two

years; but great activity was displayed during 1905. The ensuing year

was rather notable by reason of the success in securing convictions.

Besides the Standard Oil cases, there was collected in fines for

rebating between October, 1905, and March, 1907, the sum of $586,000.

Several men were sent to jail, for from three to six months. Among the

trusts implicated were the beef packers, who have been indefatigable

in concocting rebating devices; the tin plate combination; and, most

notable of all, the American Sugar Refining Company. Nearly $300,000

in fines was imposed upon this concern alone. The secret allowances

in these cases were most ingeniously arranged. Some were "refund

of terminal charges;" some were "lighterage demurrage;" some were

allowances for damages. Many were paid by drafts instead of checks so

as to preclude identification of individuals; some were by special

bank account; but the sums involved were very large. Shipments of

sugar on which rebates of four to six cents per hundred were given,

amounted within a relatively brief period to upwards of 70,000,000

pounds on one line alone. As sugar shipments westbound from New York

constituted nearly one-third of the total tonnage, the importance of

these prosecutions appear. The following quotation from a letter from

an agent of the sugar trust accompanying a claim for overcharge of

$6,866 on shipments of syrup, introduced in evidence in one of these

cases, aptly describes the situation, both then, now, and always. "We

hope to devise some means to enable us to conduct our freight matters

with the transportation companies satisfactorily even under the new

conditions imposed by the Elkins bill; but there may be some cases that

cannot be taken care of, in the event of which we will, like all other

shippers, have to take our medicine and look pleasant." The Interstate

Commerce Commission reported as to the conditions in 1908 that "many

shippers still enjoy illegal advantages." Many convictions were,

however, secured. And investigations in California showed the existence

of an extensive system of preferential rates.[188] A list of 108 firms

was discovered on the Southern Pacific road alone, who were enjoying

"special inside rates" which often aggregated $50,000 per month. Many

of these assumed the form of refunds upon claims for damages.

Thus the rebate as an evil in transportation, even since amendment

of the law in 1906-1910, while under control, is still far from

being eradicated. Favoritism lurks in every covert, assuming almost

every hue and form. Practices which outwardly appear to be necessary

and legitimate, have been shown to conceal special favors of a

substantial sort. Among the latest forms, undue extension of credit

may be mentioned. It appeared, for instance, in 1910 that the Hocking

Valley Railroad was favoring the Sunday Creek Coal Company to the

extent of credit for transportation on its books to the amount of

$2,400,000.[189] Another device which amounted to favoritism whether

so intended or not, has been brought into court upon prosecution of

the so-called Beef Trust. Substantial concessions in the rate from

Kansas City to various foreign countries prevailed by reason of the

fact that long time contracts for shipments at an established rate

continued after a new higher general tariff had been put into effect.

This increase of rates in general, leaving the trust rates at the old

figure, of course created an undue and unlawful preference.[190] The

chapter might be further amplified by details concerning "substitution

of tonnage at transit points;"[191] excessive allowance for claims,

and, as in a recent important case against the New York Central,

exorbitant rates paid for advertising in a theatrical publication, in

order to secure transportation for an itinerant troupe of travelling

players.[192]

The extreme subtlety of personal favoritism was recently brought to

light in connection with the selling price of coal in the little

town of Durham, North Carolina.[193] Complaint was entered that

a certain retailer was charging but five dollars a ton while his

competitors were unable to dispose of theirs at a profit for less

than six dollars. The explanation offered, that this person employing

no bookkeeper and, paying no rent, was enabled to do this because of

these savings, proved inadequate. Investigation developed the fact

that no direct preference from railroads existed, but that there were,

nevertheless, various peculiar features as to division of rates which

invited further examination. Thus, for example, while the Norfolk

& Western received $30.80 for hauling a carload of coal 160 miles,

the Durham & South Carolina Railroad received $24.80 for hauling the

same car one mile. This little railroad was owned by a lumber company

which seemed in effect to have set up the defendant coal merchant in

business. An arrangement between this little switching road and the

Seaboard Air Line, as well as the Norfolk & Western, also favored the

Durham & Southern. The key to the situation lay in the fact that the

Dukes,--powerful financial interests controlling the American Tobacco

Company, the Southern Power Company and large cotton mills,--also

controlled the Durham & Southern through the lumber company. The

Seaboard Air Line, therefore, when it gave to this little switching

road for a twenty-mile haul, about forty per cent. of its division on

through business, surreptitiously conferred a heavy bonus upon its

little connection. It must have lost money under such a division of

rates. The only conclusion possible is that this little railroad was

specially favored in order to purchase the goodwill of financiers

controlling a large traffic in other lines of business. The rebate,

however, was not given to the American Tobacco Company, but constituted

a comfortable profit "on the side" for powerful interests in its

management.

The elevation cases concerning the legitimacy of a special payment

for unloading grain in private elevators, have been under dispute for

years. Their validity has recently been affirmed by the Supreme Court

in an important decision in 1911.[194] This litigation illustrates

the difficulty of defining rebates as an expression of personal

favoritism. In 1899, the Union Pacific Railroad made a contract

with Peavey & Company at Council Bluffs to erect an elevator and to

transfer grain for a charge of one and one-quarter cents a hundred

pounds. This arrangement was objected to by competing railroads on

the ground that it gave compensation to a private concern, engaged

in general grain business for the handling of its own property. The

Union Pacific insisted that the expedient was necessary and proper

as a means for promptly unloading its cars at Omaha. The Commission,

after investigation, sanctioned the contract. In 1907, the matter again

came before the Commission upon complaint of other railroads competing

with the Union Pacific along the Missouri river. It was alleged that

the continuance of the elevator allowance by the Union Pacific would

virtually compel all other roads to make similar allowances. Still the

Commission adhered to its former conclusion that undue discrimination

did not result. The practice, however, gradually spread until all the

roads at Missouri river points put in an allowance of three-fourths of

one cent as an elevator charge. This brought forth a complaint from the

lines at St. Louis that traffic was being diverted from that point as

a result; and the Commission, once more considering the matter, held

that the practice was prejudicial to public interest. Conditions, in

fact, had changed, mainly through the increase of through shipments

to the East without transfer at the Missouri river. The Commission,

therefore, held that when such transfer took place, it was for the

accommodation of local grain merchants, who ought to pay for the

service rendered. At this stage of the proceedings, the matter went

to the Supreme Court of the United States upon appeal. The decision

finally upheld the Commission, in holding that the payment of an

elevation allowance was not unlawful, but that if paid to one elevator,

it must be paid to all. The bearing of this case upon the larger issue,

of payments by railroads for special services rendered by, shippers

cannot fail to be of great importance in the future.

The use of the industrial railroad as a means of preferential treatment

still occasions difficulty.[195] The case is simple where but one

shipper makes use of the terminal plant; but where a number of shippers

may utilize it jointly, it becomes difficult to draw the line between

pro-rating allowances and actual rebates. The Manufacturers' Railroad

Company, with twenty miles of track, four locomotives and one hundred

and ten employees, serves a considerable manufacturing section in

South St. Louis. A majority of the stock of this terminal railroad is

held by persons controlling the Anheuser-Busch Brewery. The enormous

traffic of this concern, equal to about one-thirtieth of the total

tonnage of St. Louis, is handled over the line of the Manufacturers'

Railway. Almost nine-tenths of its business consists of shipments of

beer; but in 1910 some 5,424 carloads belonging to other patrons moved

over its rails. For this terminal service the Anheuser-Busch Company,

through the Manufacturers' Railway, got a very substantial allowance

for the service rendered. For example, in one month on ten carloads of

beer, the Louisville & Nashville allowed $45 out of a total revenue

of $391.60 for moving the traffic something less than four thousand

feet. The disparity is obvious between this allowance and the balance

remaining as compensation for moving the traffic 477 miles, including

three first-class railroad tolls and terminal charges at the other

end.[196]

A prime difficulty is to determine whether unduly low commodity rates

amount practically to special favors granted to large shippers. Much

evidence recently tends to show that the trusts enjoy advantages of

this sort not extended to other competitors. The Steel Corporation,

through its ownership of railroads and steamships, certainly has a

great advantage over its rivals.[197] But other trusts not controlling

common carriers of their own, are also accorded what seem to be unduly

low rates upon their products. Recent evidence before the Interstate

Commerce Commission seems to show that sugar, beef, and coffee do

not bear their proper share of transportation costs.[198] Copper,

the product of a powerful trust, enjoys a lower ton mile rate than

grain,--a rate, despite its high intrinsic value, actually below that

on soft coal.[199] The discrimination is too palpable to be passed over

without explanation.

From the survey of rebating and rate wars,--which latter of course

afford the most favored soil in which personal favoritism may

flourish,--one cannot avoid the conclusion that a great improvement in

conditions has been brought about. The strengthened arm of the Federal

government has come to the support of the carriers; and has assisted

them to a material enhancement of their revenues, by putting a stop to

serious leakages in income. But the carriers could undoubtedly do much

on their own account, could they be granted the right to make traffic

agreements, subject always, of course, to the approval and supervision

of the Interstate Commerce Commission. Whether Congress will ever

permit this, remains to be seen. The most important result of all

this Federal activity so far, has been the moral stimulus toward fair

business dealing which has been given. Thousands of shippers today,

quite apart from the fear of fines or imprisonment, would disdain to

ask or accept favors which a decade since would have been regarded

as entirely proper. No one can doubt that the morale of business is

distinctly higher than it used to be. Could such higher standards

become universal, the Department of Justice would be relieved of a

substantial part of its present duties.

FOOTNOTES:

[162] 14 I. C. C. Rep., 250. Upheld by the Supreme Court in 1911; 219

U. S., 498. Also 23 _Idem_, 535.

[163] Circular Letters of the Chicago Bureau of Car Performances;

undated.

[164] The latter half of chap. XII.

[165] The chapter on reorganizations in vol. II will afford other

instances with full references. Com. & Fin. Chron., LIX, p. 232.

[166] 55th Cong., 1st Sess., Sen. doc., 39, p. 29.

[167] Ann. Rep., I. C. C., 1896, p. 82: and 1897, p. 53. Fine cases in

1 I. C. C. Rep., 633-656.

[168] Investigation of grain rates at Missouri river points; 54th

Cong., 2nd Sess., Sen. doc. 115, pp. 17-22, etc.

[169] 167 U. S. Rep., 633.

[170] P. 211, _infra_.

[171] On private car lines, Columbia University Studies, etc., LXXXI,

1908, p. 185. J. W. Midgley's Circular Letters as chief of the Bureau

of Car Performances in 1901, costing him his position, by the way,

are most significant. Car service reform resulted nevertheless. _Cf.

Quarterly Journal of Economics_, 1904, p. 299. See pp. 96 and 140,

_supra_.

[172] U. S. Bureau of Corp., Rep. on Trans, of Petroleum, pp. 36, 60,

81, 88.

[173] 10 I. C. C. Rep., 1, 148, 385 and 661: 18th Ann. Rep., I.C.C.,

19 and 42: Senate (Elkins) Committee, 1905, pp. 2424-2495. Later cases

discussed at p. 212, _infra_.

[174] P. 212, _infra_.

[175] P. 209, _infra_.

[176] 11th Ann. Rep., I.C.C.; 16th _Idem_, p. 13; and 21st _Idem_, p.

14.

[177] Bureau of Corp., Rep. on Trans, of Petroleum, 1905, p. 105 _et

seq._

[178] 11 I.C.C. Rep., 438; _Cf._ 13 _Idem_, 70; and 19 _Idem_, 356.

[179] Report on Discriminations and Monopolies in Coal and Oil; Jan.

25, 1907, pp. 1-81.

[180] Ripley, Railway Problems, chap. II, fully described.

[181] 11 I.C.C. Rep., 558; U. S. Bureau Corp'ns Rep., p. 148.

[182] Routes shown by the map on p. 647, _infra_.

[183] 20 I. C. C. Rep., 200, with dissenting opinion. Reviewed by the

U. S. Commerce Court 1912; _Railway Age Gazette_, chap. LII, p. 1550.

P. 586, _infra_.

[184] U. S. Circuit Court of Appeals, decided March 12, 1902. The

history is in Ann. Rep., I.C.C., 1907, p. 114; 1908 pp. 26 and 36; and

1909, p. 26.

[185] Never published. Outlined in Wisconsin _Assembly Journal_, 1905,

chap. II, pp. 1463-1497.

[186] _Cf._ p. 492, _infra_.

[187] _Cf._ 59th Congress, 1st Session, Senate Doc. 526.

[188] 13 I.C.C. Rep., 123.

[189] Ann. Rep., I.C.C., 1910, p. 10.

[190] _Idem_, 1909, p. 32. Circuit Court of Appeals decision, April 29,

1911, Ann. Rep., I.C.C., 1908, p. 32.

[191] 18 I.C.C. Rep., 280. _Cf._ p. 401, _infra_.

[192] _Boston Transcript_, Feb. 20, 1912.

[193] 22 I.C.C. Rep., 51.

[194] 222 U. S., 42. The system is described in the _Railway Age

Gazette_, June 4, 1909.

[195] 21 I.C.C. Rep., 304. Compare also before the U. S. Commerce

Court; the Stock Yards case, 192 Fed. Rep., 330; the California

Switching case, 188 Fed. Rep., 229; and the Crane Iron Works case, No.

55, April session, 1912. The tap-line decision, 23 I.C.C., 277, most

fully discussed the general policy to be observed toward industrial

roads in the lumber business. _Cf._ also the use of boat lines. 23

_Idem_, 358.

[196] _Railway Age Gazette_, LII, pp. 269 and 340.

[197] Evidence before the Stanley House Committee on Steel Corporation,

Feb. 28, 1912, p. 3667; and Bureau of Corporations on U. S. Steel

Corporation, II, p. 72.

[198] _American Economic Review_, 1911, p. 789.

[199] S. O. Dunn, American Transportation Question, pp. 62, 81.

CHAPTER VII

LOCAL DISCRIMINATION

Concrete instances, 215.--Hadley's oyster case not

conclusive, 217.--Two variants: lower long-haul

rates by the roundabout route, as in the Hillsdale,

Youngstown, and some Southern cases, 221; or by the

direct route, as in the Nashville-Chattanooga and

other southern cases, 225.--Complicating influence of

water transportation, 232.--Market competition from

various regions, a different case, 234.--The basing

point (southern) and basing line (Missouri river)

systems, 238.--Their inevitable instability and probable

ultimate abandonment, 242.--Postage-stamp rates,

illustrated by transcontinental tariffs, 245.--Which

line makes the rate? 255.--Cost not distance,

determines, 256.--Fixed charges v. operating

expenses, 257.--Proportion of local business, 259.--Volume

and stability of traffic important, 261.--Generally the

short line rules, but many exceptions occur, 263.

Any unreasonable departure from a tariff graded in some proportion

according to distance is known as local discrimination. It constitutes

one of the most difficult and perplexing problems in transportation.

Personal discrimination now happily having been practically eliminated

since the enactment of the Elkins Amendments to the Act to Regulate

Commerce, this issue of local discrimination under the rehabilitated

long and short haul clause, has recently assumed an added significance.

A merchant of Wilkesbarre, Pennsylvania, purchased a carload of

potatoes at Rochester, New York, and had the freight bill made for a

delivery to Philadelphia, because the freight to Philadelphia was less

than it was to Wilkesbarre, which is 143 miles nearer. He stopped the

potatoes at Wilkesbarre, unloaded them, and paid the freight. A few

days later he received a bill from the Lehigh Valley Company for twelve

dollars additional freight. If the potatoes had gone to Philadelphia,

he would have paid forty-eight dollars freightage. As they stopped at

Wilkesbarre, he had to pay sixty dollars; that is, twelve dollars for

not hauling the carload 143 miles.[200]

A merchant in Montgomery, Alabama, shipped two carloads of fruit jars

from Crawfordsville, Indiana, to Montgomery. He shipped them to Mobile

and then paid the local rate from Mobile back, those fruit jars going

through Montgomery on the way out. By having them hauled 350 miles

farther, he saved seventy-five dollars on the two carloads.

On first-class goods, at one time, the rate from Louisville to

Montgomery, was $1.26 per hundredweight. On to Mobile, 180 miles

further south, it was only ninety cents. In the same territory the rate

on kerosene oil from Cincinnati at times has been three times as much

to interior points as to New Orleans, three times as far. West of the

Missouri river and in the Rocky mountain area similar complaints are

common. Denver, Colorado, pays $1.79 per hundredweight on cotton piece

goods, in small lots, hauled 2,000 miles from Boston; while the rate

to San Francisco, 1,400 miles further away, on the same line, is only

$1.50. This discrepancy is even greater in wholesale rates. No carload

rating is given to Denver; while for similar shipments to the coast the

rate is only one dollar per hundredweight. In the opposite direction,

sugar is carried from San Francisco through Denver to Kansas City for

sixty-five cents per hundredweight, as compared with a rate of one

dollar if the sugar is stopped at Denver. Smaller places in the West

afford equally striking instances. The rate on rope from San Francisco

to Independence, Kansas, is seventy-five cents; while the same goods

are hauled on through Independence, Kansas, much farther, to Missouri

river points for sixty cents per hundred pounds. Wichita, Kansas,

complains that cotton piece goods from New York by way of Galveston

are rated at $1.36; while by the same route Kansas City, 225 miles

longer haul by that route, the charge is only ninety-three cents. The

Southwestern Lumberman's Association complains,--

"that a train of cars of lumber starts from Camden or other

common point in Texas via Atchison, Topeka and Santa Fe

Railway, and one car is dropped off in Oklahoma at 27-1/2 cents

per 100 pounds; one each also at Wichita and Emporia, Kansas,

at 27-1/2 cents per 100 pounds; one at Kansas City at 23 cents,

and two cars also set off this same train at Kansas City,

destined for Omaha and Lincoln, Nebraska, at 23 and 24 cents

per 100 pounds, respectively. The balance of this train, now at

Kansas City, runs on to Chicago, and 24 cents per 100 pounds is

the charge then for most of the train which is left there....

Why should builders of homes in Wichita and Emporia, Kansas,

pay higher freight than builders in Kansas City, Omaha, and

Chicago when using yellow pine from Texas?"[201]

Such instances as these might be multiplied indefinitely. They are

often striking in character. The first impression is of intolerable

abuse. The simplest tenets of justice and fair dealing appear to be

violated. Careful analysis should, however, always be made before

drawing such conclusions. Railroad practice seldom departs so

flagrantly from the fundamental consideration of cost of service

without very substantial economic justification.

The reasoning underlying local discrimination is admirably set forth

by President Hadley in the following passage from his _Railroad

Transportation_:--[202]

"On the coast of Delaware, a few years ago, there was a place

which we shall call X, well suited for oyster-growing, but

which sent very few oysters to market, because the railroad

rates were so high as to leave no margin of profit. The local

oyster-growers represented to the railroad that if the rates

were brought down to one dollar per hundred pounds, the

business would become profitable and the railroad could be sure

of regular shipments at that price. The railroad men looked

into the matter. They found that the price of oysters in the

Philadelphia market was such that the local oystermen could

pay one dollar per hundred pounds to the railroad and still

have a fair profit left. If the road tried to charge more, it

would so cut down the profit as to leave men no inducement to

enter the business. That is, those oysters would bear a rate

of one dollar per hundred, and no more. Further, the railroad

men found that if they could get every day a carload, or nearly

a carload, at this rate, it would more than cover the expense

of hauling an extra car by quick train back and forth every

day, with the incidental expenses of interest and repairs. So

they put the car on, and were disappointed to find that the

local oyster-growers could only furnish oysters enough to fill

the car about half full. The expense to the road of running

it half full was almost as great as of running it full; the

income was reduced one-half. They could not make up by raising

the rates, for these were as high as the traffic would bear.

They could not increase their business much by lowering rates.

The difficulty was not with the price charged, but with the

capacity of the local business. It seemed as if this special

service must be abandoned.

"One possibility suggested itself. At some distance beyond

X, the terminus of this railroad, was another oyster-growing

place, Y, which sent its oysters to market by another route.

The supply at Y was very much greater than at X. The people

at Y were paying a dollar a hundred to send their oysters to

market. It would hardly cost twenty cents to send them from Y

to X. If, then, the railroad from X to Philadelphia charged

but seventy-five cents a hundred on oysters which came from

Y, it could easily fill its car full. This was what they did.

They then had half a carload of oysters grown at X, on which

they charged a dollar, and half a carload from Y on which they

charged seventy-five cents for exactly the same service.

"Of course there was a grand outcry at X. Their trade was

discriminated against in the worst possible way--so they

said--and they complained to the railroad. But the railroad men

fell back on the logic of facts. The points were as follows: 1.

A whole carload at seventy-five cents would not pay expenses of

handling and moving. 2. At higher rates than seventy-five cents

they could not get a whole carload, but only half a carload;

and half a carload at a dollar rate (the highest charge the

article would bear) would not pay expenses. Therefore, 3. On

any uniform rate for everybody, the road must lose money,

and 4. They would either be compelled to take the oyster car

away altogether, or else get what they could at a dollar, and

fill up at seventy-five cents. There was no escape from this

reasoning; and the oyster men of X chose to pay the higher rate

rather than lose the service altogether."

The logic of this oyster case seems convincing in its simplicity. But

it presents more complications than appear at the outset.

[Illustration]

First of all, what is the nature of the competition at the more distant

point which is alleged to "compel" the lower rate? Is it merely of

rival routes or of competing markets? It will be advisable to keep the

two distinct so far as possible. Under the first heading, competition

of routes, the subjoined sketches represent two possible situations. In

both instances, however, Y, enjoying the lower rate, is more distant

from Philadelphia than X. The difference between the two arises from

the fact that in the one case X is nearer Philadelphia than Y on a

roundabout line; while in the other X is actually nearer than Y by

the shortest direct route. We may safely assume that the compelling

competition alleged at Y as justifying the lower rate is by rail; as,

the commodity being a marine bivalve, both places presumably enjoy

equal facilities for water carriage. At all events, assuming that we

have to do with competing rail routes alone, what differences obtain

between the two sets of circumstances above sketched? Not insignificant

inequalities in the length or power of the two routes are implied by

the diagrams. They are supposed to represent substantially different

lines, which may, for the purpose of the argument, be denominated

strong, natural, or standard, and weak, unnatural, or abnormal,

respectively, so far as the particular traffic in hand is concerned.

That this distinction is not irrelevant, but frequently of determinant

force, is shown by an analysis of concrete cases which have arisen for

adjudication.

This proposition is clear beyond dispute. The actual cost of service,

which fixes an irreducible minimum rate between Y and Philadelphia, is

less on the short line than by the roundabout one. For either road to

accept less than the portion of the cost traceable to this particular

traffic, that is to say, the extra cost incident to its acceptance,

is economically inconceivable. From this it follows, other conditions

being equal, that the shortest line between Y and Philadelphia

rules the rate in the last instance. This is normally the case. The

roundabout route thereafter merely accepts the rate thus compelled.

To permit the roundabout line to rule the minimum rate would not only

violate a fundamental principle of operation: it would inevitably

lead to chaos. The analogy with cut-throat competition in business is

obvious. It is equally plain that the mere acceptance of a short line

rate by a roundabout road, so long as this rate is adequate to yield

some profit over the extra cost, while of advantage to some, may not

work positive injury to any one. This condition normally corresponds

to the state of affairs represented by diagram A. The nearer point, X,

as Hadley avers, has no just grievance against Y because the latter

has the good fortune to have a direct service to Philadelphia at a

low rate. For Y to withdraw shipments from the line via X might even

destroy the only chance of X for a market. It would also deprive Y

of whatever benefit it might have derived from competition either of

routes or of facilities. Of course, we have expressly omitted market

competition as a factor, reserving it for separate treatment. Yet

one objection arises. Normally, the direct line ought to maintain

a tariff conforming in some degree to the distance principle. The

roundabout line can compete at Y only by a violation of it, unless,

indeed, its local tariffs be graded much more gradually. In other

words, its progression towards the maximum must be distributed over

a much longer line. Even this would, on Hadley's statement of fact,

eliminate X from the Philadelphia market. Such reduction of local

rates upon the roundabout route would in turn discriminate against

places like Z on the direct line, equally distant with X from

Philadelphia. For the latter places would necessarily be assessed at

a higher rate per ton-mile.[203] This would constitute another form

of local discrimination, which will be discussed in due time. There

is, therefore, at best, only a choice of adjustments, either of which

leads to some form of inequality. But, upon the whole, balancing the

evil with the good, the first variant of our oyster case appears to be

best solved by according all shippers at Y a somewhat lower rate than X

enjoys.

Conditions corresponding to diagram A have frequently given rise to

complaints before courts and administrative tribunals. An interesting

illustration is afforded by the Hillsdale ice case in Michigan.[204]

Ice was moved from this town to Springfield and Columbus, two

neighboring Ohio cities, over several different routes. (See map on

next page.) To Columbus the shortest road was by the Hocking Valley

Railroad directly through Toledo. Another route by way of Sandusky

existed; and even a third through Sandusky, thence over to Springfield,

and in by the side door, so to speak, to Columbus. This last routing

was due to the fact that the Big Four road from Sandusky diagonally

across to Springfield had no access to Columbus except through a branch

line from Springfield. This last-named zigzag route was 295 miles in

length as against 190 miles by the direct line through Toledo. To

Springfield, on the other hand, no direct route from Hillsdale existed;

but freight might move either _via_ Sandusky by the Big Four road or

through Sandusky and around by way of Columbus. The shortest of any of

these lines to Springfield, however, was twenty-nine miles longer than

the shortest line to Columbus. This established Columbus, therefore,

as normally the nearer point. Complaint arose from the fact that ice

carried over the zigzag route to Columbus actually passed through

Springfield and forty-five miles beyond to reach its destination. For

such shipments over the Big Four road, Springfield instead of Columbus

was the nearer point. But, contrariwise, for ice coming to Springfield

through Columbus, the latter in turn became the intermediate

point.[205] The specific complaint was that the rate by all routes

to Springfield was one dollar per ton, while to Columbus it was only

eighty cents. Originally, the rate was higher ($1.25 per ton), but was

the same to both points. Is this a case of local discrimination or not?

[Illustration]

The Big Four road operating through Springfield answered that it was

not responsible for the eighty cent rate to Columbus; that this was

made by the direct line; and that it obviously must meet this rate or

withdraw from the ice business. It alleged, moreover, that the rate of

one dollar was reasonable in itself as compared with other rates in the

same territory, and was in fact substantially less than it formerly

was; nor would its withdrawal from Columbus ice business evidently be

of any advantage whatever to Springfield, but would indeed deprive it

of some small contribution to joint expenses of operation on all its

tonnage. No evidence being offered that Springfield was positively

injured by this adjustment, the Commission properly dismissed the

complaint.

The distinctive feature of this class of cases, as has been said, is

that the intermediate point preferring the complaint is always on a

roundabout route.[206] St. Cloud, Minnesota, and Wichita, Kansas, whose

contentions are described hereafter in detail, were thus situated. The

so-called "rare and peculiar" case of Youngstown, Ohio, cited in the

original Louisville and Nashville decision of 1889, was in no sense

different. It was a case of pure competition of routes.[207] Traffic

to New York was starting its journey from Pittsburg, over the rails of

the same company, in exactly opposite directions. Some of it went east

by the direct line; while other freight first moved due west, thence

north, by way of Youngstown, Ohio, until it reached the main line at

Erie, which took it on to New York. This traffic, therefore, described

three sides of a rectangle in reaching its destination, traversing a

route 172 miles longer than by the direct line. The issue was raised

by a demand for as low a rate to New York from Youngstown as Pittsburg

enjoyed, on the ground that it was nearer New York by this indirect

line; Pittsburg traffic, in other words, passing through it _en route_

to the seaboard. The reply, of course, was that, although nearer by an

indirect road, it was more distant by the natural and shortest route,

and consequently should pay more for the service. What the roundabout

line was really demanding was permission to compete at Pittsburg for

New York business, without being compelled to reduce its local rates

from intermediate points like Youngstown. In other words, the long line

was demanding exemption from the long and short haul clause, while the

direct short line conformed to it. Without such exemption it could not

continue to reach out for Pittsburg business, as the loss incident

to reduction of its local rates would outweigh the profit in the

competitive tonnage.

One side of the Savannah Freight Bureau Fertilizer case[208]--namely,

the complaints of local stations on a roundabout road--brings it

within our first category. The roundabout line from Charleston to

Valdosta, shown upon the map at p. 648, was 413 miles long as against

a direct route of only 273 miles. Kathleen, Georgia, is only 288

miles out from Charleston on this indirect line,--approximately the

same distance as Valdosta, which thus corresponds to Y in the oyster

case. Yet Kathleen paid a rate of $3.32 per ton on fertilizer from

Charleston as against $2.48 charged to Valdosta, 125 miles beyond.

But this excess distance is by an indirect route. Most of the notable

English cases concerning local discrimination appear to be of the same

stamp.[209] The complaints of a number of smaller places in the St.

Paul-Milwaukee territory, like Cannon Falls, Lacrosse, and Northfield

some years ago, reduce in part to the same thing.[210] Whether the

Troy, Alabama, and Wichita, Kansas, cases belong here or in the next

group is indeterminate, owing to the difficulty of comparing conditions

of carriage by rail and by water, respectively.

On the other hand, the set of circumstances shown in diagram B (page

219, _supra_) is of quite a different sort. The justification for

the local discrimination is much less clear. Here, as before, the

distant point Y enjoys a lower rate than X because of the presence of

competition; but it is important to inquire both as to the nature and

the amount of it. In the first case, competitive traffic from Y was

_extra_ rather than normal in character, so far as the line serving

X was concerned. It was relatively small in amount. Whatever surplus

revenue resulted from it aided the local tariffs, including those

at X, in supporting the burden of fixed expenses. This burden they

were bound to bear entirely in the absence of competitive business

picked up at Y. The distant point Y of course had no complaint in any

event, and the chances are that X was benefited, as we have seen.

But in the second case the great bulk of the traffic from Y belongs

naturally to the direct line through X. It constitutes the mainstay

of its business. The direct line, unlike the roundabout one, cannot

withdraw from the field when rates become unremunerative. It is in

this business passing directly through X to stay. Nine-tenths of the Y

traffic, perhaps, moves through X in this latter case; in the former

one, one-tenth would perhaps measure the proportion of the indirect

line. Under this assumption, it is obvious that the question of the

level of rates at Y, as determined by the presence of competition,

assumes a ninefold greater importance in the eyes of X, so far as the

effect upon local rates in supporting the fixed and joint expenses of

the road is concerned. In any event, even the line operating under

a disability supposedly earns some small net return on competitive

traffic, else it would withdraw from the field. This it is in fact free

to do at any time; and, however small the net return, it is at least

all gain. On the other hand, when the net return on a large volume of

its natural business becomes unduly small, the financial stability

of the direct line is put in jeopardy. The danger of local rates (as

at X) being actually enhanced or at least prevented from reduction,

because of an unduly low level of competitive rates at more distant

points, is thus much greater when X is a way station on a direct line

than when, as in our first instance, it is an intermediate point on

a roundabout route. For this reason the direct line through X is at

the outset put to a justification of its local tariffs, as to whether

they are inherently reasonable or not; first, by comparison with the

general level throughout the surrounding territory; and, secondly, as

yielding a return on the capital actually invested. This seems to have

been the line of reasoning which the Interstate Commerce Commission

adopted in the recent important Spokane, Washington, cases.[211] The

low through rates to the Pacific coast were established as reasonable

by the competition of sea routes round the Horn, and especially by the

newly-opened Tehuantepec Railroad. The only ground for finding there

was discrimination against Spokane was an inherent unreasonableness in

its rate. This was, in fact, the outcome; the decision being rendered

notable, further, by reason of the prominence given to the valuation of

the railroads' property as a basis of judgment.

The first important point to be established, then, in this second

variety of the oyster case was as to the relative distribution of

traffic from the more distant competitive point by the several lines

open to it. The next concerned the absolute reasonableness of the rate

at the intermediate point. In the third place, we must inquire whether

the rate at the more distant point may not be unreasonably low. This

was a contingency not possible, as we have just seen, in the Spokane

case. But others may be different in this regard. One is thus forced

to consider the effect of the presence of roundabout competitive lines

upon the level of rates at the more distant point. An indirect rival

road may, as in the St. Cloud case, carry only seventy-three carloads

a day as compared with a daily movement of one thousand cars by the

direct lines. On the other hand, as in the Savannah Freight Bureau

case, Valdosta, Georgia, may receive nine-tenths of its supply of

fertilizer by indirect roads. But in any event it is the potential,

not the actual, movement of tonnage, which may count in the long run.

It is indisputable that the short line between two points never pares

its rates down to an irreducible minimum except under compulsion.

The presence of a roundabout route affords just this pressure to

reduction. Even allowing that in the last analysis the long line will

strike bed-rock of no profit first, it is indisputable that such lines

frequently, instead of merely meeting rates made for them by the direct

routes, seek to divert business by actually undercutting those rates.

Having only a small share of the tonnage, they take risks which would

be fatal to others. To transport at an absolute loss is of course no

more defensible than the argument of the merchant that the only way

to compensate for selling goods below cost was to enlarge the volume

of his business. But, of course, there is always the chance that, by

enlarging this volume sufficiently, operating expenses may be so far

cut down that a loss may be transformed into a profit. The diversion

of enough traffic from the direct railroad line to accomplish this end

would, of course, reduce the volume of its traffic and thereby unduly

burden it, to the manifest injury of all local points like X.

Suggestive illustrations of lower rates at the more distant point

than are under the circumstances actually "compelled" by competition

of routes are to be had. In a recent case[212] the rates on bananas

from Charleston, South Carolina, to Danville and Lynchburg, Virginia,

respectively, were called in question. The traffic moved through

Danville on its way to Lynchburg, sixty-six miles beyond, at a rate

of forty-three cents to Danville as compared with a rate of twenty

cents to Lynchburg. The reason for the low rate at Lynchburg was the

presence of a rival route,--bananas, coming in through Baltimore. But

the lowest rate "compelled" by this competition was in fact thirteen

cents higher than the Danville line charged at Lynchburg. In other

words, the long-distance rate was that much lower than it need have

been. This instance is analogous in another way to our oyster case,

inasmuch as the demand at Danville being limited, one-half of the

same carload paid the Danville rate of forty-three cents, while the

other half went on at the lower rate of twenty cents enjoyed at the

more distant point. It is in this connection, of rates unduly low at

so-called competitive points, that the partial weakness in the railroad

arguments in many of the southern basing point cases appears. Since the

Supreme Court of the United States had held that competition at the

more distant point justified its lower rates, the Interstate Commerce

Commission was powerless to give effect to whatever opinion it might

entertain that at times it is neither water nor commercial competition

which actually brings about the low rate at the basing point; but

merely a consensus of opinion among carriers that that place will

respond quickly enough to favors granted, to make it worth while to

try the experiment.[213] This conviction is vastly strengthened, of

course, since entire monopoly among all the southern railroad lines

has become an established fact. It is an absurdity to speak longer of

any competition between rail carriers existing in a large part of this

territory.[214]

[Illustration]

Actual illustrations of this second variant of the oyster case, free

still from the complications of competition of markets, are not

common, but occasionally arise. Chattanooga, which aspires to be the

commercial and industrial centre of eastern Tennessee, is about 150

miles southeast of Nashville, as shown by the accompanying sketch map.

Owing to the southwestern trend of the Appalachian Mountain valleys,

it is only 846 miles from New York by rail, almost as the crow flies;

while Nashville has access to the North principally through Ohio river

gateways, over lines, at the best, 1,058 miles in length. By these

lines, therefore, the latter is 212 miles further from New York than

Chattanooga. But the two competitive places are only 151 miles apart;

whence it follows that the shortest possible all-rail line from New

York to Nashville, swings around to the south by way of Chattanooga.

The situation is complicated by other combined rail and water routes

from New York through Norfolk, Savannah, and Charleston. But all these

lines also reach Nashville by coming up through Chattanooga. From every

point of view, therefore, Chattanooga, on the basis of mileage, is the

nearer point to New York--151 miles nearer by the direct line, all

rail; equally nearer by all combined rail and water routes: and 212

miles nearer than is Nashville by the roundabout all-rail lines through

Louisville or Cincinnati. Its location corresponds to X in our second

variation of the oyster case; namely, an intermediate point on the

direct line to another more distant point Y, which latter enjoys the

competition of more roundabout routes.

[Illustration]

The disability against Chattanooga, against which it protested, was

substantial.[215] Its first-class rate from New York was $1.14 per

hundred pounds, while Nashville paid only ninety-one cents. On various

commodities the Chattanooga rates were from twenty-five to seventy-five

per cent, above those to Nashville. The effect of such differences

upon jobbing business at the places intermediate between Nashville and

Chattanooga is shown by the subjoined chart. The two upper sloping

lines represent the through rates from New York to each distributing

centre, plus the local rates out to way stations. Even at Bolivar, the

nearest place to Chattanooga, the Nashville combination is slightly

lower than that based upon Chattanooga. This disability steadily

increases as Nashville is approached, rates from Chattanooga rising

while those from Nashville fall, until at Kimbro the jobber located

at Chattanooga--the nearer point to New York on the direct line--must

lay down his New York goods at a rate of sixty-three cents a hundred

pounds higher than his competitor in Nashville enjoys. This adjustment

is partly an historical product. Nashville, by the old river routes

from Pittsburg down the Ohio and up the Cumberland, was formerly nearer

the Eastern cities than Chattanooga. Then, the trunk lines through

Cincinnati with heavy traffic and low rates shortened the distance;

and, finally, the Louisville & Nashville Railroad, supplanting the

river routes, undertook to build up Nashville as against Cincinnati

and Louisville. Historically, on the other hand, Chattanooga was long

an unimportant point. It took, as it still does, the same rate from

the North as prevailed at some twenty-three other southern cities from

Atlanta to Memphis. Here is the crux of the difficulty. The rates

at Nashville must be assumed as historically fixed. Whatever remedy

may apply must come from a reduction of the rates to Chattanooga,

the nearer point. This place has now become an important centre, the

meeting point of a number of rail and water lines. The long prevalent

grouping of all the southern cities with equal rates from the North

must be replaced by a system of differentials, if the discrimination

against Chattanooga is ever to be ameliorated.

By this time it will be observed that in the discussion of the

Chattanooga case we have drifted far beyond the mere competition of

rival routes. Commercial competition, which affords the justification

for grouping all these twenty-three important southern cities together,

is a topic to be treated elsewhere by itself. The difficulty in many

of these cases is to distinguish between the really strongest line and

the one which is merely the shortest. Upon this point one's decision of

the Chattanooga case might actually depend. The Louisville & Nashville

contends that Nashville even today is, from an operating point of view,

nearer New York than Chattanooga, although the distance is 212 miles

more. All the trunk lines compete at Ohio river points, and bring them

relatively much closer to New York. The density of traffic on these

lines is far heavier than on the air line to Chattanooga.

It happens that Chattanooga meets this allegation of greater trunk

line density and cheapness by proof of the still greater economy

of operation by the coastwise steamers to southern ports, traffic

coming thence north by rail through Chattanooga. The appearance of

water competition in any of these cases always introduces an almost

insuperable difficulty in the way of comparison of long and short

lines. Shipment by vessel differs from rail carriage, primarily in

the relatively high terminal costs, the absence of all maintenance of

way costs, and the low cost of actual propulsion. With a cargo once

securely stowed, the distance traversed by a vessel is of relatively

little importance, much less so than in the case of carriage by rail.

A powerful factor in determining water rates, moreover, especially

by sea, is the absence of local traffic. Wharves and terminals being

expensive to build and maintain, and the method of loading in a ship's

hold not being conducive to ease in access or assortment, vessels

are confined largely to bulk traffic at a few important points. The

expenses of operation must be more uniformly distributed over the cargo

than in the case of a trainload. The water line, therefore, is deprived

of one advantage in cutting rates. It cannot, so readily as a railroad,

recoup itself for losses on competitive business or at competitive

points by falling back upon its earnings from way stations.

From all these considerations it not infrequently comes about that,

unlike carriage by rail, the longest way round may indeed be the

shortest way home. This is clear in the highly involved Wichita,

Kansas, cases.[216] Wichita, a commercial centre of southern Kansas,

is 200 odd miles southwest of Kansas City. Its all-rail rates from

the East are higher than to Kansas City. Yet by the water route from

New York to Galveston and thence up by rail, as compared with Kansas

City, it is a nearer and intermediate point. The Interstate Commerce

Commission well expresses the difficulty:

"It is quite probable that the actual cost of transporting

cotton piece goods from New York to Wichita _via_ Galveston

does not exceed that of carrying them from New York to

Kansas City via the cheapest route. The all-rail haul is to

the latter point 1,300 miles and over. The ocean and rail

movement involves a rail carriage of from 1,100 to 1,300 miles,

depending upon the route selected. If the goods move through

some Gulf port, there is a rail carriage of not less than 850

miles. If, therefore, the rate were to be measured by the

expense of the service, it is probable that Wichita would today

enjoy as low a rate as the Missouri river."

The Wichita complication, moreover, works both ways. Wichita and Kansas

City form two angles of a narrow triangle with its apex at the Gulf

ports; but the distance from Kansas City is longer than from Wichita.

Railroad competition brought it about, however, that the rate on export

grain from Wichita _via_ Kansas City to the Gulf came to equal the

rate from Kansas City to the Gulf _via_ Wichita. But the former was a

much longer and more roundabout haul; and, moreover, was less than the

shorter haul rate from Wichita to the Gulf direct. The analogy to the

Hillsdale case, above-described, will appear clearly on inspection of

the map.

Summarizing the results so far reached, in all that concerns the

two sorts of cases considered in the preceding paragraphs, our

conclusion is that, when competition by rail at the distant point is

alone present, and when the nearer point is on a roundabout route, a

railway "is entitled to carry the traffic past X to Y (Philadelphia)

for considerably less than nothing"; but, when the nearer point is on

a direct line, the case is debatable. Proof that normal competition

compels the lower rate at the remoter station must be uncommonly clear

and conclusive. In other words, the facts that the rate at Y is not

unduly low and also that the rate at X is not unreasonably high must

both be firmly established.

A distinct class of cases of local discrimination is suggested by

the recent case of Montgomery, Ala., in the United States Commerce

Court.[217] These like other cross line cases, akin to that of Wichita,

Kansas, above-mentioned, arise in connection with practices as to the

division of joint rates. They will be discussed in connection with

pro-rating in our second volume.

The question has forced itself forward constantly as to whether the

existence of the alleged discrimination in rates is merely a matter of

relativity in cost of operation or whether it inflicts positive injury

upon the nearer point. Would it benefit the nearer point if the lower

rate beyond were withdrawn? It is here that the complexity of some of

these cases of local discrimination becomes apparent. To understand

this phase of the matter, the factor of commercial competition, as

distinct from mere rivalry of routes, must be introduced. Hadley's

analysis of the oyster case is quite inadequate on this point. Rates

in that instance were on commodities (oysters) produced at practically

uniform cost at both X and Y. They were, moreover, rates _from_ two

places out to a common market. Would it, however, make any difference

if the controversy concerned the rates in the opposite direction;

or, in other words, from a common centre of distribution out to two

competing consuming points? Would it make any difference whether

the goods were to be consumed at X and Y; or were to be used as raw

material in manufactures at those two points; or were to be distributed

throughout the countryside from X and Y as jobbing centres? It is at

once evident that these issues are more complicated than in the first

case. The two points X and Y being commercial and industrial rivals, is

it not possible that the growth of one may take place at the expense

of the other? At any given time there is only a fixed demand for the

goods consumed, manufactured in or redistributed from the two places.

Trade won by one is quite lost to the other. Of course, in a measure,

this might also have been true of the oyster production. But, inasmuch

as in that case the rate from Y was not affected by the entry of X,

its prosperity would not probably be disturbed. The Hillsdale ice case,

above described, is also one where the commodity (ice) is of relative

unimportance for Columbus and Springfield, respectively. How would

matters stand if the rates in question were on lumber or coal for

manufacturing purposes? The difference, no doubt, is merely of degree

and not of kind. Magnitudes, however, must not deceive us. The rights

of Kathleen or Danville are just as sacred as those of Youngstown and

Pittsburg.

[Illustration]

St. Cloud, Minnesota, is located upon a line of the Northern Pacific

Railroad, seventy-six miles northwest of St. Paul.[218] It is a

competitor not only with St. Paul, but with other local centres in

the vicinity, like Elk River, Princeton, and Anoka, either for flour

milling or for distributive jobbing business. It is about the same

distance as these other places from Duluth or Superior; through which

the entire district obtains its supplies, such as coal from the East

by lake boats; and by way of which its flour must be shipped to the

Eastern markets and to Europe. And yet the rate on flour made at

St. Cloud to New York in 1899 was twenty-eight and a half cents per

hundredweight, as against a rate of twenty-one and a half cents from

St. Paul, this latter rate being enjoyed also by Milaca, Princeton,

Elk River, and Anoka. The rates on coal and other supplies from the

East were likewise proportionately higher than to St. Paul and these

neighboring towns. The specific complaint in this case is of local

discrimination. The Northern Pacific Railroad operates the long line

between St. Paul and the head of Lake Superior by way of Brainerd.

On this business, passing through St. Cloud, it has to meet a rate

compelled at St. Paul by the competition of no less than three direct

lines to Duluth. It avers that this business, taken either way for

longer distances and at lower rates than are accorded to St. Cloud,

in no way affects the rates at that point; and that whatever it can

earn as a contribution to joint expenses decreases the burden of these

upon St. Cloud rates. This is all entirely true from the transportation

point of view; but, viewed in a large way, the situation is altered.

Wheat of local production about St. Cloud is rendered of less value by

practically the excess of the St. Cloud rate per hundredweight over

the rate enjoyed from St. Paul. The Interstate Commerce Commission

found that this was equivalent to a difference of fully $1 per acre

in the value of wheat lands tributary to St. Cloud. And on the other

hand, of course, the cost of all its supplies is enhanced above the

level of rival manufacturing centres. On soft coal this equalled no

less than eighty-five cents per ton. To this the Northern Pacific

replied that the discrimination against St. Cloud was not of its

creation, but had existed before its entry into any St. Paul business

by its indirect route. The Commission found, however, that in fact the

participation of this indirect line on St. Paul-Duluth business did

affect the short-line rate; and that its withdrawal would at least tend

to prevent any further reduction of the St. Paul and related rates. If

the withdrawal did not remove the discrimination against St Cloud it

would not at all events aggravate it. The vital point, differentiating

this case from that of the Savannah Freight Bureau, previously stated,

was the actual damage to the intermediate point due to the existence of

commercial competition between it and the place more distant.

An important feature in commercial competition is its entire

dissociation from all considerations of cost of service by long or

short routes. Neither strong nor weak lines make the rate. The business

is there. Market conditions are fixed. The carriers are free to take

traffic or leave it. Single-handed, at least they cannot rule the

price of transportation. The price of sugar at Kansas City is made

by competition of Louisiana sugar coming from New Orleans, of beet

sugar and Hawaiian sugar from Colorado and San Francisco, and of the

world's sugar from New York. This is why Kansas City, in the complaint

stated in the opening paragraph, enjoys a lower rate on sugar from San

Francisco than the transcontinental lines can accord to Denver. The

only possible justification for the apparent anomaly in lumber rates

from Texas points, cited in the same paragraph, is that, as the heart

of the Middle West is approached, lumber supplies from every point of

the compass converge upon common markets. As is so frequently averred

in such cases, no carrier makes the rate. The rate is made for all of

them by conditions beyond their control. The only rates, therefore,

which it is in their power to fix in some accordance with average costs

of operation, are the rates at local stations. For these rates alone

can they be brought to book.

Just here another characteristic of commercial competition as distinct

from rivalry of routes is to be noted. Local discrimination, wherever

it is alleged to occur, frequently assumes the form of complaint

against rates to various places, not on the same line but by different

and often widely separated lines. Complaints of this class might

arise, for instance, referring back to our diagrams of the oyster

cases, between X and Z. Philadelphia, we will assume, as before, to

be the common market. A multitude of different varieties of protest

are distinguishable. Point X equally distant from Philadelphia with Z

may pay a higher rate than Z. Or X may be less distant than Z, and yet

be called upon to pay the same rate. It may even be less distant than

Z and yet actually be charged a higher rate than Z. But in all these

instances the two points (X and Z) are not on the same route, but on

divergent routes. The issue remains the same. The conditions imposed

at the point of convergence being fixed, each line must exercise its

own ingenuity in conforming thereto. Methods in each case must differ,

according to the length of line, the direction and composition of the

traffic, and other factors.

* * * * *

Three general schemes of rate-making are distinguishable in American

practice. The most satisfactory one is that which obtains in trunk

line territory, of zone tariffs with a gradation in some degree

corresponding to distance.[219] At the other extreme is the system of

the flat or postage-stamp rate, exemplified in the Missouri-Mississippi

river territory,[220] and in Pacific coast rates from all points east

of the Mississippi.[221]

Intermediate between the two are the systems of basing lines and

basing points. The first of these, the basing line system, prevails

throughout the country west of the Missouri river. The second, the

basing point system, is found throughout the southern states east of

the Mississippi. In both the principle is the same. The two differ

only in detail. Through rates are made to certain designated places;

and from there on, a local rate to all other places, large or small,

is added. This local charge rises, of course, with distance. Thus the

first-class rate to Denver, Colorado, is made up of a rate of eighty

cents from Chicago to the Missouri river, plus $1.25 for the balance

of the haul. From Chicago to a point in central Nebraska the only

difference would be a lower local. In southern territory the rate to

Troy, Alabama, equals the sum of the through rate to the nearest basing

point, Montgomery, and of the local rate from there on to destination.

The only difference in detail between these two systems is that in

the western territory, all competing lines being parallel (until

the routes around by sea and back from the Pacific coast are met),

rates rise in all cases progressively with distance. The complaint of

local discrimination rests merely on the allegation that the rate of

progression with increasing distance is too rapid. In the South, on the

other hand, owing to the encircling seacoast with deeply penetrating

navigable rivers, the competing routes from the East or North converge

from different and even from directly opposite directions. Hence it

is impossible to base rates upon extended boundary lines, like the

Missouri river. Rates must be based upon certain designated points.

This introduces a serious complication. Points, instead of lines, being

used for basing purposes, in the South, local rates rise outward in

every direction around each basing centre until the sphere of the next

basing point is met. And local rates to points even back on the same

line, through which the traffic has already passed to reach the basing

point, are thus of necessity higher than rates to points beyond.

[Illustration]

The economic anomaly of rates actually falling progressively as the

length of the haul increases is graphically well illustrated in

the accompanying diagram, based upon data in the Georgia Railroad

Commission cases.[222] The charges from Cincinnati to local points

on all lines converging upon Atlanta equal the sum of the rates to

Atlanta plus the local charges out. This holds good even on the direct

line from Cincinnati through Chattanooga, as the diagram shows; yet

of course it also follows that rates must again decline as the next

basing point is approached in any direction; be it Montgomery to the

west, Macon to the south, or even Chattanooga to the north. The only

condition analogous to this in the Far West appears in those places

whose rates are made up by a combination of the low water rates to the

coast plus a local back eastward into the mountains. The transition

from this Pacific coast combination to the system based upon the

Missouri river occurs at those places where the aggregate charges from

either direction become equal. Viewed as a large matter of principle

the whole western system is analogous to the southern system. It is

inevitable in both that intermediate points should in all cases be

assessed at a higher rate than those adopted as bases.[223]

The reason advanced in support of these basing point or basing line

systems is that they are an outgrowth of commercial competition; in

other words, that they are compelled by conditions beyond the carriers'

control. Sometimes it may be the competition of widely encircling water

routes--as from New York around to Galveston and up to Kansas City in

the southwestern field, or to Mobile and up to Montgomery, Alabama, in

the southeastern states. But, in many other cases, market competition

from other centres of supply set the limit to the rate at the basing

point. Missouri river cities enjoy a great advantage over all

competitors, as meeting places of the ways. Generally, the low rates

to the base points have been originally accorded in order to build up

local distributive or industrial centres in the face of competition

from older places. Nashville undoubtedly owes a large measure of its

present prominence to the fact that in the old days its principal

railroad gave a foothold and made a clientage for its merchants as

against older rivals in Cincinnati and Louisville. Nor can it be said

that this was an injury to that clientage, composed of consumers all

through the adjacent countryside. Rates for these consumers were not

put up, in order to build up Nashville. On the contrary, Nashville

was given perhaps inordinately low rates, in order that the sum of

these low rates and of the local rates out to Four Corners should be

at least as low as those from Cincinnati and Louisville direct. This

last argument is the main economic defence of the southern basing point

system.[224] It applies equally to the advocacy of a low basing line at

Missouri river cities for rate making to points beyond.[225]

Railroads: Rates and Regulations · 第 23 / 31 章