It

the common carrier is required to convey freight over the private side track any more than it is required to carry freight over another common carrier's line with which it is compelled to make connection, but the inference is that it must receive freight from the private side track and deliver freight to it and upon it. The private siding, off the carrier's property, is not a part of the main line, nor the property of the carrier. It may be a convenience for the carrier in its service to other shippers; it may save the carrier expense for larger yards or additional tracks therein, or in simplifying its switching. But none of these considerations affect the question here. That it is voluntarily done from prudence does not render it enforceable as a right and may be prejudicial to others; that is, directly in conflict with the statute. is a safe rule (and I find no decision to the contrary) to hold transportation begins and ends where the carrier's, or connecting carrier's, line begins and ends. So far as an enforceable right exists under a freight rate, why should not the right begin and end at the line or on the property of the carrier? Such rule has many advantages. It is definite; it avoids temptation to, and facility for, preferences and favoritism; under it all rates for one class of freight would be practically uniform for the same locality or rate "zone"; and it is consistent with the strict responsibility resting upon carriers to safely transport and deliver. Terminal, or extra, charges may perhaps be made and published for valuable services over a private side track, but every shipper from Schenectady, or from the zone in which a Schenectady rate prevails, would be upon the same footing for a shipment in and out of that zone, as far as the carrier is concerned. To require a carrier to spot cars off its own tracks and on private sidings must often result in unequal rates and privileges, or at least be a constant temptation thereto. I know of no reason why a shipper, who has a private siding, should be deprived of this advantage. The law does not attempt to equalize location, opportunity, or foresight. He may have his car freight delivered and received on that side track, which necessarily means that the carrier may be permitted to convey the cars some distance on or over the side track. But, because the carrier is permitted, in one movement, to convey the cars 500 feet on a private siding, it is not to be concluded that it must convey them ten miles on such siding. There must be a line drawn, and, under the statute, that line is "undue and unreasonable advantage," "equality of rates as to all." Where the movement is so short, or the service is of so little cost, that it does not add an appreciable amount to the cost of transportation, as furnished to all shippers under the published rate charged to all shippers, it may be performed, otherwise it may not be.

So if, as claimed, Schenectady rates now include something in addition to the proper charge for transportation to a Schenectady point, because the carrier in some cases does work in the shipper's yard, that "something in addition" should be cut from the said rate rather than paid back to the shipper. The plaintiff is not justified in putting into its published through Schenectady rate an item for service to defendant in defendant's yard. If it may lawfully charge (the charge being in its published tariff) defendant for such service, and if defendant

may pay for it, it cannot add to the charge to shippers generally something for service to this defendant. The general freight rate from point to point may not include an element for spotting (where it occasions appreciable expense), as such actually results in an unjust . charge to those for whom spotting is not done. If the plaintiff's rate charged to defendant is 20 cents per ton more than the just rate to and from a Schenectady point, because it covers spotting, that 20 cents should be cut from the rate. The antirebate law can be better enforced if no such contract as here in question be allowed, except where the shipper does work or furnishes instrumentalities on the carrier's lines and property, and when it separately states the charge in its published tariffs. When this plaintiff has delivered cars on defendant's storage and delivery tracks in defendant's yard, it has made delivery off its own line in the Schenectady zone at a place convenient to defendant and selected by it. If it then pays 20 cents per ton to the defendant for a service in transporting beyond that place, it has realized 20 cents per ton less than it realizes from any other shipper in said zone, who receives his own freight at the freight house or yard or on a siding on plaintiff's lines used by shippers, and defendant has been given a preference. This is forbidden. Wight v. U. S., 167 U. S. 512, 517, 17 Sup. Ct. 822, 42 L. Ed. 258. Plaintiff must treat all shippers alike (Armour Packing Co. v. United States, 209 U. S. 72, 28 Sup. Ct. 428, 52 L. Ed. 681, cited in Chicago & Alton R. Co. v. Kirby, 225 U. S. 165, 32 Sup. Ct. 648, 56 L. Ed. 1033); it must charge the same rate to all and that the published rate (Id.). I find that the delivery on the storage tracks is a delivery to defendant; that the transportation begins and ends there; that plaintiff's published tariffs include no charge for service upon a "private siding"; that no transportation on a private siding further than to make clearance can be required from the carrier, though it may move cars thereon where the cost of such movement does not add appreciably to the cost of transportation as furnished to all shippers; that to perform the service here demanded by defendant, under the conditions disclosed in defendant's yard, would add substantially to the cost of transporting defendant's freight. The contract is illegal. This in substance is the holding of the Interstate Commerce Commission (14 Interst. Com. Com'n R. 361), and which it has never modified. Reference will now be made to some of the decisions most strongly urged by defendant.

In Int. Com. Comm. v. Diffenbaugh, 222 U. S. 42, 32 Sup. Ct. 22, 56 L. Ed. 83, the decision is confined to "grain in transit" from one carrier to another and to grain that had been "treated, weighed, inspected, or mixed," and it was held that payment for elevation and transferring of such grain so in transit may be allowed, even though the owner of the grain owned the elevator and reaped an advantage from the opportunity to treat, clean, clip, and mix the grain during elevation. The law does not attempt to equalize fortune and opportunity.

"If the carrier receives services from the owner of property transported, or uses instrumentalities furnished by the latter, he shall pay for them."

There is nothing to prevent a carrier from hiring an instrumentality used in transportation, if he does not own such. This case leaves the

question as to where transportation ends and where delivery is madeentirely open. The decision specifically does not cover grain which "did not go on." 222 U. S. 48, 32 Sup. Ct. 22, 56 L. Ed. 83, and dissenting opinion of Mr. Justice McKenna, concurred in by Mr. Justice. Hughes, 222 U. S. 50, 32 Sup. Ct. 22, 56 L. Ed. 83.

Authorities are cited to show that the carrier's contract covers the loading and unloading of freight. It has long been the rule that it was. the carrier's duty to load and unload many kinds of freight. In London & L. F. I. Co. v. Rome, W. & O. R. R. Co., 144 N. Y. 200, 205, 39N. E. 79 (43 Am. St. Rep. 752), the court said:

"There is no doubt that it is the duty, generally, of a railroad company to load the freight delivered to it for transportation into its cars. But

we know from our own observation that as to hay, lumber, sawlogs, live animals and other bulky freight, the shipper usually loads the freight into the cars."

But this rule of duty is not made applicable to a case where the cars are not to be loaded or unloaded at the station or upon the lands and tracks of the common carrier. It is nowhere held that, where cars are delivered upon a private siding, off the lands of the common carrier, the carrier must follow the car and unload it.

Authorities are also cited to establish that the carrier's contract includes, not only conveying the property, but its delivery to the consignee. I think this proposition will not be disputed. But there always remains the question: Where is the delivery to be made? In some cases delivery is made properly at the carrier's station or warehouse. In other cases it is made properly at the yard or upon a side track upon the lands of the carrier at a place convenient to the consignee for unloading. In no case has the carrier's contract made by a railroad company been held to include a delivery beyond its lines further than on the line of a connecting carrier, or upon a private side track. If this defendant had no side track, undoubtedly delivery of its car load freight would be complete when the plaintiff had delivered its cars at a place as convenient as possible in the yards or upon the side track upon the plaintiff's property, had notified the defendant of the arrival and placing of the car, and defendant had had a reasonable time in working hours to remove the same. The fact that the defendant company has a private siding, which it owns and controls, in its own yards, and the statute above quoted, do not change the place of delivery further than to fix the delivery point upon the private side track off the defendant's right of way. The movement to the defendant's storage and delivery tracks is the substantial equivalent of the "one movement" in "spotting" on 'ordinary sidetracks.

Cases are cited holding that a general custom forms the law of contracts, though at variance with their terms, and reference is then made to the evidence, which shows that the custom of spotting cars is very common, practically universal. But custom cannot modify a statute or its plain meaning. One plain purpose of the statute was to prevent discrimination by rendering a voluntary service without compensation. to one shipper and not to all.

I have examined many of the opinions of the Interstate CommerceCommission. One of its decisions (Merchants' C. P. & S. Co. v. I. C.

R. R. Co., 17 Interst. Com. Com'n R. 98) is strongly urged by the defendant. It seems to me the facts in that case distinguish it from the case at bar. At Memphis, for more than 25 years, it has been customary for the railroad companies to give rates upon "flat cotton"; and the railroad company has undertaken to compress all cotton shipped. The warehouses are some distance from the railroad track, and it has been also the custom for the railroad company to pay the cost of draying. The published tariffs have shown that the charges for these two elements are included in the published freight rate to and from Memphis, although the particular amount charged for each of such services is not published separately. At South Memphis, the Memphis Warehouse Company provides tracks leading from the railroad yards to compress plants and to the warehouses of cotton dealers for switching and conveying cars of cotton from the railroad storage tracks to the compress plants and the warehouses. The railroad company pays the warehouse company 10 cents per bale for this service and 50 cents for compressing. These charges are also included in the published tariffs. The complaint in the case was against the allowances to the warehouse company for compressing and for switching and transferring to the warehouses of the consignees. The published rate is a special rate for cotton. It is alike for all dealers and for all shippers. In each case the published tariff covers the allowance made; and, whether or not it is strictly a service within transportation, it is a service covered by the freight rate published and charged, of which every shipper has notice. The payment of the allowance therefor causes no discrimination and gives no undue or unreasonable preference or advantage to any particular person. The practice does not offend against either section 2 or section 3 of the Act to Regulate Commerce. If the holding is based on a principle in conflict with that stated in the General Electric Case, I think that the former is the better decision. I do not understand that the General Electric Case turned on whether or not the allowance goes to "the owner." The shipper is usually the owner, and the allowance is by statute available to the shipper only.

The letter of March 24, 1894, indicates that the allowance was not looked upon as a payment for a service to be rendered or an instrumentality to be furnished in transportation, but as a concession because, under the arrangement, plaintiff would be relieved of considerable expense and labor. The letter states a reason why the arrangement was for the benefit of the parties, but it does not indicate (as perhaps it naturally would not, since the statute was later passed) that the parties intended to provide for payment of only that part of a transportation service which the defendant contemplated rendering.

[6] The plaintiff maintains that this matter has once been determined by the Interstate Commerce Commission, and that that determination is conclusive upon the claim in question. In 1906, after the plaintiff had ceased to make payments under the contract of 1894, the Act to Regulate Commerce was amended and contains the following in section 15:

"If the owner of property transported under this act directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no

more than is just and reasonable, and the Commission may, after a hearing on a complaint, * * * determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the service so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order, which order shall have the same force and effect and be enforced in like manner as the orders above provided for in this section."

This defendant filed its complaint with the Interstate Commerce Commission under that section, and this plaintiff came in and answered. Upon the same facts as appear in this case at bar, the Commission made its decision and entered an order dismissing the complaint. This order does not recite the grounds on which the complaint was dismissed, but those grounds are disclosed in the opinion (14 Interst. Com. Com'n R. 238). On page 242 of 14 Interst. Com. Com'n R. it says:

"The real question before us is whether the complainant, under the amended Act to Regulate Commerce, may lawfully make any charge and demand any compensation from the defendants upon the facts shown of record. Is the service performed by it a carrier's service? Is it a part of the transportation undertaken by the carrier?"

On page 245 of 14 Interst. Com. Com'n R.:

"In our judgment the complainant does nothing within its plant which it can lawfully call upon the defendants to do for it and therefore nothing for which it may lawfully demand compensation."

The opinion is filed with the order.

Under this section of the statute the Commission is given authority to pass upon two questions: (1) If (whether or not) the owner of property transported under this act directly or indirectly renders any service connected with such transportation or furnishes any instrumentality used therein; and (2) what is the reasonable charge therefor? By act of Congress the Interstate Commerce Commission was given authority to determine these two questions. It was therefore a court or tribunal of competent jurisdiction. The parties were the same as the parties herein. The well-settled general rule of estoppel is that the estoppel in a former judgment extends to every material matter within the issues which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. It is not necessary to the conclusiveness of a former judgment that issue should have been taken upon the precise point controverted in the second action. Whatever is necesarily implied in the former decision is, for the purpose of the estoppel, deemed to have been actually decided. Thorn v. De Breteuil, 179 N. Y. 82, 71 N. E. 470. The Commission did determine that the service, for which claim is made here, was not a transportation service. There has been no review or modification in any form of the said decision of the Interstate Commerce Commission. In People ex rel. Loughran v. Railroad Com'rs, 158 N. Y. 428, 53 N. E. 165, the court said, in speaking of a decision by the Railroad Commission:

"In consenting to the discontinuance of the station in question, we think the Board of Railroad Commissioners acted judicially. As was said in People v. N. Y., L. E. & W. R. R. Co., 104 N. Y. 58, 65, 9 N. E. 856, 859 (58 Am. Rep. 484): 'By creating, the statute recognizes the necessity for, such a tribunal to