INTERSTATE COMMERCE COMMISSION v. CHICAGO, B. & Q. R. CO. et al., 103 F. 249

BROWN, Circuit Justice, delivered orally the opinion of the court. We have come to the conclusion that this case must be affirmed upon the authority of Walker v. Keenan, 19 C. C. A. 668, 73 Fed. 755. While the facts of the two cases differ in some immaterial particulars, the principles involved are practically the same, and a proper deference to the prior decisions of this court requires a similar conclusion.

As this is the first case involving the validity of the terminal charges which has been called to my attention, I have thought it proper to state briefly my reasons for concurring in the conclusion of the court in the prior case. I have no doubt it is the general duty of railway companies to provide proper facilities for the reception and discharge of freight and passengers at each of their regular stations upon the line of the road. The location of such stations must be determined largely, if not exclusively, by the railway companies themselves.

Having regard for their own interests, they would naturally provide such facilities as near the center of the town as they are able, consistently with the price of real estate, the convenience of their customers, and their connection with other railways. The character of these terminal facilities must be determined by the custom of the plaee and by the démands of the traffic. So far as passengers are concerned, they usually consist of a platform, a building for the reception of passengers, and a baggage room for the accommodation of luggage.

Upon this platform passengers alight, and from that moment the responsibility of the company as a carrier ceases. They separate to different parts of the city, taking their own conveyances; and their luggage is deposited in the baggage room, remaining subject to their call for a reasonable time. So far as what is known as “dead freight” is concerned, a freight depot is usually provided, in which the freight is deposited, and notice given the consignee, or, under the custom of some places, the property is delivered personally to the consignee, for which an extra charge is made.

But suppose there be an exceptional kind of traffic, such as live cattle. I should have no doubt that, if the transportation of such cattle became a substantial part of the traffic of the road, terminal facilities should be provided for them; and, if it were the custom of the place for the consignee of cattle to call and drive them away, pens should be built for their immediate confinement until the consignee can be apprised of their arrival, and a sufficient time has elapsed for him to remove them.

Until 1865 that seems to have been the custom in Chicago, where there were four or five cattle yards near the principal railway stations. The record does not show whether the consignee came there and drove them away, or whether they were marketed and slaughtered there; but this is immaterial, so far as the duties of the railway company were concerned. So it is usual, in the stock-raising portions of the country, to provide cattle pens for the detention of cattle until they are laden on board the cars, and sometimes for their delivery by the railway company in those yards.

While I do not think railway companies would be bound to furnish terminal facilities of this kind for an occasional horse, or perhaps even for an occasional and wholly exceptional car load of live stock, yet, if cattle became a substantial part of the traffic, I have no doubt provision should be made for their reception. In 1865 the Union Stock Yards were organized, a large area of lands purchased, and separate tracks laid by (he stock-yards company, connecting with practically all the railways running to Chicago.

Prom this time the demand for separate terminal 'facilities at each of these railways seems to have ceased, and all (tattle were consigned for delivery at the stock yards, — not for the purpose of being claimed there by the consignee, but for the purpose of finding a market for them. Here all the cattle consigned to Chicago are deposited for slaughter •or for further shipment, and great slaughtering houses have been erected in the vicinity of the yards for the disposition of the cattle.

Providing a market for cattle is certainly no part of thetbusiness of the railway company; and I think, therefore, any extra expense occasioned from the time the cars containing the cattle leave the tracks of the company, and until they arrive at the stock yards and the empty cars are returned, the company is entitled to make an additional terminal charge, equivalent to the expense occasioned to it by providing these extra facilities.

Prior to June 1,1894, the railway companies seem to have assumed this burden themselves, but at this time a trackage was imposed by the stock yards of from 40 to 75 cents each way upon every car going and" returning from the tracks of the railway company to the stock yards. It is insisted that, as this is the only extra expense then occasioned, any charge beyond that was unreasonable and improper. I do not think that necessarily follows.

While the imposition of this trackage charge by the Union Stock Yards was doubtless the immediate occasion for a reformation of its tariff, the railway companies were then at liberty to adopt a new

schedule with relation to these terminal facilities, and charge what they actually cost them. The evidence is that it costs some railways a trifle less than two dollars, and some considerably more than that. The average seems to have been somewhat more than two dollars. . But we think it was proper for the railway companies, whether the expense to the companies were a few cents more or less, to adopt this amount as an approximate charge, and that their aciion in so doing should be sustained.

In the limited time at my disposal, I find myself unable to file a. written opinion; and, as the case will doubtless be appealed to the court of last resort, it seems quite unnecessary to do so. The decree of the circuit court is therefore affirmed.