it was fair, in assigning the cars properly apportioned to a given station in accordance with its usual business, to prorate these cars among shippers in proportion to their usual business. And the court thought that it was, saying: "The question is not whether he received all the cars he wanted, but whether the cars on hand were apportioned in fairness and without unjust discrimination." In a case a little later, the same court expressed its sympathy for a railroad placed in the difficult position of trying to do business with two active and jealous competitors in such a manner as to remain upon good terms with both by reciting these lines

"How happy could" they "be with either,
Were t'other dear charmer away!"

§856. Basis of prorating cars.

It seems now well established, therefore, that it is the duty of the management when the supply is short to prorate cars apportioned to the station among the applicants. The law has become quite elaborate in late years as to the various elements that may enter into the consideration as to what is a fair apportionment. Thus in a recent case it was said in apportioning cars: "I am of the opinion that in reaching a proper basis for the distribution of rail

'State v. Chicago, B. & Q. R. R. Co., 72 Neb. 542, 101 N. W. 23 (1904). See further:

Kentucky.-Newport News & M. V. R. R. Co. v. Mercer, 16 Ky. Law Rep. 555, 29 S. W. 301 (1895).

Nebraska.-State v. Chicago & N. W. Ry. Co. (Neb.), 120 N. W. 165 (1909).

United States v. West Virginia Northern Ry. Co., 125 Fed. 252 (1903).

2

Moreover an arrangement, entered into between a railroad and warehousemen along its route that cars shall be distributed to warehousemen, no notice being taken of storers as such, as it leaves possibilities of abuses in the dealings of the warehouseman, is not to be supported. United States ex rel. v. Oregon Ry. & Nav. Co., 159 Fed. 975 (1908).

road cars it is necessary that an impartial and intelligent study of the capacity of the different mines be made by competent and disinterested experts, whose duty it should be to carefully examine into the different elements that are essentially factors in the finding of the daily output of the respective mines which are to share in the allotment. Among the matters to be investigated are the following: the working places, the number of mine cars and their capacity, the switch and tipple efficiency, the number and character of the mining machines in use, the hauling system and the power used, the number of miners and other employés, the mine openings, and the miners' houses. No one of these various and essential elements can safely be said to be absolutely controlling, though likely the most important of them all are the real working places, the available points at which coal can be profitably mined." 1

§ 857. Private facilities considered in the apportionment.

By the most recent development in this law of car distribution the private cars utilized by a particular shipper are counted as part of his allotment. This is elaborately defended in one of the latest cases 3 thus: "It is a charter duty of railroads to provide cars, as well as tracks and locomotives; and in the distribution of cars by an interstate railroad company among coal mines on a percentage basis in times of shortage of cars, private cars owned by shippers or consignees, which have no right upon the company's tracks except by virtue of its charter, must be con

1 Every presumption will be in favor of an arrangement of car distribution which has been generally acquiesced in. United States v. Norfolk & W. Ry. Co., 109 Fed. 837 (1901).

2 But such distributing arrangements are not necessarily conclusive

even when agreed upon between the railroad and the principal shippers. United States v. Norfolk & W. Ry. Co., 143 Fed. 266, 74 C. C. A. 404 (1906).

3 Chicago & A. Ry. Co. v. Interstate Commerce Commission, 173 Fed. 930 (1908).

2

sidered as leased to it and as forming a part of its commercial equipment; and while the owner is entitled to the exclusive use of such cars, they are to be counted against the mine as a part of its percentage in the distribution." 1 This whole matter as to the regulation of the distribution of cars was threshed out in a series of cases in the United States Supreme Court within a year. It was noted that the regulations established by the railroads had dealt with the car situation as though there were four classes of cars, 1, System cars, that is, cars owned by the carrier and in use for the transportation of coal; 2, company fuel cars, that is, cars belonging to the company, and used by it when necessary for the movement of coal from the mines on its own line, solely for its own fuel purposes; 3, private cars, that is, cars either owned by coal mining companies or shippers or consumers and used for the benefit of their owners in cnveyoing coal from the mines to designated points of delivery; 4, foreign railway fuel cars, that is, cars owned by other railroad companies and sent to mines upon other lines, the coal being intended for use as fuel by such foreign railroad companies. As Mr. Justice White pointed out in making this analysis of the problem in the leading case,3 some systems of car distribution had excluded some of these classes from consideration in the allotment, and other systems had excluded

1 Majestic Coal & C. Co. v. Illinois C. R. R. Co., 162 Fed. 810 (1908).

See Logan Coal Co. v. Pennsylvania Ry. Co., 154 Fed. 497 (1907), holding a division of cars based upon subtracting such special or private cars as were coming to a shipper from his capacity figures and allowing him his pro rata amount upon the balance not outrageous.

2 See Interstate Commerce Commission v. Chicago & Alton R. R. Co., 215 U. S. 479, 30 S. Ct. 163 (1910); Baltimore & Ohio R. R. Co. v. United States ex rel., 215 U. S. 481, 30 S. Ct. 164 (1910).

3 Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452, 30 Sup. Ct. 155 (1901).

others. Such class distinctions, he admitted, might perhaps be made by the railroads without its being personal discrimination. But, as he said in writing the opinion of the court, it was within the power of the Interstate Commerce Commission to insist that all shippers should be treated alike, regardless of what classes of cars they were utilizing in their shipments.

CHAPTER XXV

REGULATION OF THE SERVICE

860. The function of regulations.

Topic A. Establishment of Regulations

§ 861. Who may make regulations.

862. Publication of regulations.

863. Changing regulations.

864. Waiver of regulations.

865. Essential elements of valid regulations.

866. Proper enforcement of regulations.

Topic B. Regulations Governing the Service

§ 867. Regulations for limiting the service.

868. Regulations relating to acceptance.

869. Reasonable conditions of performing service. 870. Establishment of stopping places.

871. Delivery districts.

872. Time-tables.

873. Waiting rooms.

874. Office hours.

875. Proper baggage.

876. Unusual baggage.

Topic C. Regulation of Patron's Conduct

§ 877. Regulations requiring prepayment.

878. Regulations to prevent escape from payment.

879. Personal behavior of patron.

880. Bringing dangerous things prohibited.

881. Restriction of patron's position.

882. Passengers forbidden upon platforms.

883. Regulations governing the supply.

884. Use made of equipment.

Topic D. Regulations Relating to Tickets

885. Ticket may be made indispensable.

886. Failure to produce ticket.