reasonable a question to be determined by the Commission. Mitchell Coal & Coke Co. v. P. R. Co., 230 U. S. 247, 57 L. Ed. 1472, 33 Sup. Ct. 916. The question is discussed in the several opinions and reports in the Sugar Lighterage case. United States v. B. & O. R. Co., 231 U. S. 274, 58 L. Ed. 218, 34 Sup. Ct. 75, affirming B. & O. R. Co., v. United States, 200 Fed. 779, Op. Ct. No. 38, p. 499, and setting aside the order of the Commission in the Federal Sugar Refining Co. v. B. & O. R. Co., 20 I. C. C. 200. See the related case of the Am. Sugar Refining Co. v. D. L. & W. Ry. Co., 200 Fed. 652, reversed American Sugar Refining Co. v. D. L. & W. R. Co., 207 Fed. 733, 125 C. C. A. 251. The Tap Line case involved the question, United States v. L. & P. R. Co., 234 U. S. 1, 58 L. Ed. 1185, 34 Sup. Ct. 741; Louisiana & P. Ry. Co. v. United States, 209 Fed. 244, Op. Com. Ct. No. 90, p. 709; The Tap Line case, 23 I. C. C. 277, 549, 31 I. C. C. 490. The provision does not apply where rate constructed on the theory that the shipper shall furnish the instrumentality. Best v. G. N. Ry. Co., 33 I. C. C. 1, 4.

Notes of Decisions Rendered Since 1915.

Payment to shipper must not be excessive. Mitchell Coal & Coke Co. v. P. R. Co., 38 I. C. C. 40; New Orleans Terminal Allowances, 42 I. C. C.748, 754, cases cited; Lehigh C. & N. Co., v. P. R. R. Co., 50 I. C. C. 543; and see cases National Tube Co. v. L. T. R. Co., 55 I. C. C. 469, 56 I. C. C. 272. Recovery for services denied, there being no tariff provision therefor. Southern Cotton Oil Co. v. Cent. of Ga. R. Co., 228 Fed. 335. Unlawful payment in the form of an allowance under a lease. Cent. R. Co. of N. J. v. United States, 229 Fed. 501, 143 C. C. A. 569. Orders of Commission relating to allowances to elevators.. Omaha Elevator Co. v. Union P. R. Co., 249 Fed. 827, 162 C. C. A. 61. The issue is one of fact, npt of law. Penn. R. Co. v. United States, 236 U. S. 351, 59 L. Ed. 617, 35 Sup. Ct. 370. State courts have no jurisdiction to determine allowances. Loomis v. L. V. R. Co., 240 U. S. 43, 60 L. Ed. 517, 36 Sup. Ct. 228.

$405. Enumeration of Powers of Commission Not Exclusive. The foregoing enumeration of powers shall not ex

clude any power which the Commission would otherwise have in the making of an order under the provisions of this act. Last paragraph of section fifteen added by Act June 29, 1906. Fourteenth Par. in Transportation Act 1920.

The statute gives shippers new rights but preserves existing rights. Copp v. L. & N. R. Co., 43 La. Ann. 511, 12 L. R. A. 725, 26 Am. St. Rep. 198, 9 So. 441; Carlisle v. Mo. Pac. R. Co., 168 Mo. 656, 68 S. W. 898; Western & A. R. Co. v. White Provision Co., 142 Ga. 246, 82 S. E. 644; Gulf, C. & S. F. R. Co. v. Moore, 98 Tex. 302, 83 S. W. 362, 4 Ann. Cas. 770; Puritan Coal Min. Co. v. Penn. R. Co., 237 Pa. 448, 85 Atl. 426, Ann. Cas. 1914B, 37; Mitchell Coal & Coke .Co. v. Penn. R. Co., 230 U. S. 247, 57 L. Ed. 1473, 33 Sup. Ct. Rep. 916.

Compare Texas & P. R. Co. v. Abilene Cotton Co., 204 U. S. 426, 439-446, 51 L. Ed. 553, 561, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075; Robinson v. B. & O. R. Co., 222 U. S. 506, 56 L. Ed. 228, 32 Sup. Ct. Rep. 114; 36 Stat. at L. 551 (15), chap. 309, Comp. Stat. 1913, Sec. 8583; 38 Stat. at L. 220, chap. 32. Penn. R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 59 L. Ed. 867, 35 Sup. Ct. 484, 486, 487. Ill C. R. Co. v. Mulberry Hill Coal Co., 238 U. S. 275, 59 L. Ed. 1306, 35 Sup. Ct. 760, 763.

§ 405 A. Meaning of Words "Rates" and "Carriers".When used in this section the term 'rate' means rates, fares, and charges, and all classifications, regulations, and practices, relating thereto; the term 'carrier' means a carrier by railroad or partly by railroad and partly by water, within the continental United States, subject to this Act, excluding (a) sleeping-car companies and express companies, (b) street or suburban electric railways unless operated as part of a general steam railroad system of transportation, (c) interurban electric railways unless operated as a part of a general steam railroad system of transportation or engaged in the general transportation of freight, and (d) any belt-line railroad terminal switching railroad, or other terminal facility, owned exclusively and maintained, operated, and controlled by any State or politicay subdivision thereof; and the term 'net railway operating income' means railway operating income,

including in the computation thereof debits and credits arising from equipment rents and joint facility rents.

Paragraph 1 of section 15a added by section 422 Transportation Act 1920.

§ 405B. Commission's Power to Initiate Rates Fair Return. In the exercise of its power to prescribe just and reasonable rates the Commission shall initiate, modify, establish or adjust rates so that carriers as a whole (or as a whole in each of such rate groups or territories as the Commission may from time to time designate) will, under honest, efficient and economical management and reasonable expenditures for maintenance of way, structures and equipment, earn an aggregate annual net railway operating income equal, as nearly as may be, to a fair return upon the aggregate value of the railway property of such carriers held for and used in the service of transportation: Provided, That the Commission shall have reasonable latitude to modify or adjust any particular rate which it may find to be unjust or unreasonable, and to prescribe different rates for different sections of the country.

Paragraph 2 of section 15a added by section 422 Transportation Act 1920.

§ 405C. Percentage Constituting a Fair Return To Be Determined by Commission.-The Commission shall from time to time determine and make public what percentage of such aggregate property value constitutes a fair return thereon, and such percentage shall be uniform for all rate groups or territories which may be designated by the Commission. In making such determination it shall give due consideration, among other things, to the transportation needs of the country and the necessity (under honest, efficient and economical management of existing transportation facilities) of enlarging such facilities in order to provide the people of the United States with adequate transportation: Provided, That during the two years beginning March 1, 1920, the Commission shall take as such fair return a sum equal to 52 per centum of such aggregate value, but may, in its discretion, add thereto a sum not exceeding one-half of one per centum of such

aggregate value to make provision in whole or in part for improvements, betterments or equipment, which, according to the accounting system prescribed by the Commission, are chargeable to capital account.

Paragraph 3 of section 15a added by section 422 Transportation Act 1920.

§ 405D. Determination of Aggregate Value of Property.— For the purpose of this sectiion, such aggregate value of the property of the carriers shall be determined by the Commission from time to time and as often as may be necessary. The Commission may utilize the results of its investigation under section 19a of this Act, in so far as deemed by it available, and shall give due consideration to all the elements of value recognized by the law of the land for rate-making purposes, and shall give to the property investment account of the carriers only that consideration which under such law it is entitled to in establishing values for rate-making purposes. Whenever pursuant to section 19a of this Act the value of the railway property of any carrier held for and used in the service of transportation has been finally ascertained, the value so ascertained shall be deemed by the Commission to be the value thereof for the purpose of determining such aggregate value.

Paragraph 4 of section 15 a added by section 422 of Transportation Act 1920.

§ 405E. Income in Excess of Fair Return a Trust Fund.— Inasmuch as it is impossible (without regulation and control in the interest of the commerce of the United States considered as a whole) to establish uniform rates upon competitive traffic which will adequately sustain all the carriers which are engaged in such traffic and which are indispensable to the communities to which they render the service of transportation, without enabling some of such carriers to receive a net railway operating income substantially and unreasonably in excess of a fair return upon the value of their railway property held for and used in the service of transportation, it is hereby declared that any carrier which receives such an income so in excess of a fair return, shall hold such

part of the excess, as hereinafter prescribed, as trustee for, and shall pay it to, the United States.

Paragraph 5, section 15a added by section 422 Transportation Act 1920.

§ 405F. Disposition of Excess Over Six Per Centum.-if, under the provisions of this section, any carrier receives for any year a net railway operating income in excess of 6 per centum of the value of the railway property held for and used by it in the service of transportation, one-half of such excess shall be placed in a reserve fund established and maintained by such carrier, and the remaining one-half thereof, shall within the first four months following the close of the period for which such computation is made, be recoverable by and paid to the Commission for the purpose of establishing and maintaining a general railroad contingent fund as hereinafter described. For the purposes of this paragraph the value of the railway property and the net railway operating income of a group of carriers which the Commission finds are under common control and management and are operated as a single system, shall be computed for the system as a whole irrespective of the separate ownership and accounting returns of the various parts of such system. In the case of any carrier which has accepted the provisions of section 209 of this amendatory Act the provisions of this paragraph shall not be applicable to the income for any period prior to September 1, 1920. The value of such railway property shall be determined by the Commission in the manner provided in paragraph (4).

Paragraph 6 of section 15a added by section 422 Transportation Act 1920.

§405G. Carriers Use of Reserve Fund.-For the purpose of paying dividends or interest on its stocks, bonds or other securities, or rent for leased roads, a carrier may draw from the reserve fund established and maintained by it under the provisions of this section to the extent that its net railway operating income for any year is less than a sum equal to 6 per centum of the value of the railway property held for and used by it in the service of transportation, determined as