must be a special rate, rebate, drawback, or other device by which a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property subject to the provisions of this Act by a carrier for doing a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions which is defined to be unjust discrimination. To violate the first clause of section three a common carrier subject to the provisions of the Act must make or give an undue or unreasonable preference or advantage to some person, company, firm, corporation, or locality, or particular description of traffic, or must subject some person, company, firm, corporation, or locality, or particular description of traffic to some undue or unreasonable prejudice or disadvantage. To violate the second clause of section three, a common carrier, subject to the provisions of the Act, must refuse, according to its powers in that respect, to afford all reasonable, proper and equal facilities for the interchange of traffic between its respective connecting lines, and for the receiving, forwarding, and delivering passengers and property to and from such lines and those connecting therewith, or must discriminate in its rates and charges between such connecting lines. To violate section four, the carrier must charge or receive a greater compensation in the aggregate for the transportation of passengers or the like kind of property under substantially similar circumstances and conditions for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance. To violate section six, with reference to the printing and posting of schedules of rates, fares, and charges, the carrier must fail to comply with some one of the express requirements of this section. There are, of course, other provisions of the Act regulating and defining the duties of carriers, but it is unnecessary to refer to these as they have no bearing whatever upon the questions involved in this proceeding.

The rule of statutory construction is well settled that when a statute thus defines in express terms what shall constitute a

violation of its provisions, and makes such violation penal, this definition is conclusive upon every tribunal whose duty it is made to enforce the statute. Such tribunal can add no terms of description to the definition so made by the lawmaking power, and can take no terms away from that definition. That definition expresses the will of the legislature and it can not be enlarged or reduced by construction. When the will of the legislature is plainly expressed, there is no room for construction, and it must be obeyed and enforced as expressed.

The words "under substantially similar circumstances and conditions," found in the second section of the statute, are words of controlling import, and so are the same words found in section four. It is not enough that the circumstances and conditions should be similar, but they must be substantially similar. So in section 3 the words “undue” or unreasonable" are words of controlling import. It is not enough under this section that the preference or advantage, or prejudice or disadvantage, should exist, but in each instance it must be "undue or unreasonable." Congress in each of these sections has used apt and well-selected words to define what shall constitute a violation of each of these sections.

Every word in a statute must, if possible, be given some operation, but this is the more true of words which deal with the substance of things, and which are of controlling import. By giving to the words "under substantially similar circumstances and conditions" the field of operation they occupy in this statute, the carrier is enabled to adjust its business methods to its traffic in such way as that it may properly and fairly serve the public under the various exigencies of transportation and commerce without injustice to shippers or localities and without crippling its own legitimate business. The same is true of the words "undue or unreasonable" as they occur in the first clause of section three. One shipper may obtain better or larger cars than another from causes that are purely accidental or without any intention to give him a preference. For illustration, because he applies first for cars, and the carrier may furnish them to him without knowing that the other

shipper will come for cars, and there would be no "undue or unreasonable advantage or disadvantage or preference of prejudice" about that. So it might be also in the case of scarcity of cars, if the carrier should furnish freight cars to one shipper who comes first and applies for them without his knowing that the other shipper might later in the day apply for cars. So it would be where a carrier, for business reasons of its own, has a larger or more expensive depot at one station than another, or a depot nearer to the business portion of a city or town on its line than another, or has an elevator at one station and no elevator at another, or a cotton compress at one station and no cotton compress at another, or finds itself in a condition that its depot is so far from the business portion of a city or town on its line that in order to properly serve all of its patrons at such city or town it is obliged to use wagons in carting its freight to and from its depots without any separate charge being made for this specific service, not as a "device" to prefer that city or town over another, but as a necessity of its business and as a part of its transportation expense covered by its transportation rate. There are many other instances that readily occur to the mind, but it is unnecessary to specify them. In none of these instances named would it follow that there was "undue or unreasonable prejudice" or "undue or unreasonable preference," or that it was done as a "device" to give one shipper or locality an advantage over another, or to place one at a disadvantage as compared to another, or to subject one and not the other to prejudice or disadvantage or to do for one a greater service for a less compensation than for another "under substantially similar circumstances and conditions." To be "undue or unreasonable," the preference or advantage, the prejudice or disadvantage, must not be of a doubtful character, but it must be unmistakable, which character is indicated by its being "undue," and it must be without lawful cause or ground for its existence, which of course renders it "unreasonable."

As the expense incurred by the defendant at Grand Rapids in the delivery and receipt of freight is a mere transportation

expense involved in the cost of transportation for which it makes no separate charge, but which is covered by the transportation rate charged, it is no more required by the statute to publish this in its tariffs than it is to publish any other transportation expense or item in the cost of transportation that it incurs in transporting freight to and from Grand Rapids over its line.

IN THE MATTER OF THE APPLICATION OF F. W. CLARK, GENERAL FREIGHT AND PASSENGER AGENT OF THE SEABOARD AIR LINE.

Heard and decided April 23, 1890.

1. Through rates in interstate traffic are the subject of agreement among carriers who transport the freight, and for their existence are dependent upon such agreement; and one of the features of such rates usually is that each carrier receiving the freight pays the charges upon it of the carrier delivering it.

2. Where a line of steamships, for example, plying between New York and Wilmington, N. C., make a through rate from New York via Wilmington and the Carolina Central Railroad to interior points, by adding the steamer rate to the local tariff rate of the railroad to the interior points, there being no agreed through rates for such freight between the steamship and rail lines, the rail carrier, when the freight is tendered to it at Wilmington, is under no obligation to pay the rates earned by the steamer in transporting the freight from New York to Wilmington, but may decline to do so, leaving the steamship and the shipper to settle the matter of the steamship's charges before the carrier takes the freight and transports it to the interior point.

MEMORANDUM.

REPORT AND OPINION OF THE COMMISSION.

BRAGG, Commissioner:

In this proceeding the Commission has received an application from F. W. Clark, General Freight and Passenger Agent of the Seaboard Air Line, as follows:

"Will you kindly advise me if a line doing business from an eastern Atlantic port has a right to publish and operate rates from the said eastern ports, via a southern port, based upon whatever rates the steamer line may choose to make in connection with the local rates of a railroad from the southern port to the interior; and if the railroad line from