OCTOBER TEP? 1907. 197, 198. But to deny to pro'ties the power of agreeing upon rates of transportation for a reasonable time tends to destroy and not promote commerce. Op.e of the conditions of suceess- ful bus?ness--one of the things which induce? new indns?e?-- is the ability to provide in advance for certainty of expondi- tures, including among them the ccet of transportation. Who will engage in any new enterprise or invest money in a manu- facturing industry when he knows tkat he cannot m?l?e a deft- nite contract for rates of transportation to and from his factory, but is advised that whatever contract he make? may, at the whim of the carrier, upon ten days' notice, be set a?de and a higher rate imposed? Further, it seems to be implied that Congress has given ex- press authority to the carrier to raise its rates, but this is not so. The single provision is that it s .h?11 not raise its rates with- out giving ten days' notice. It is a limitafon upon power instead of a grant of authority. It may be said that the remedy of the shipper is to pay the increased rkte? and then sue the carrier for the excel. 'But upon what ground can such an action be maintained? If the contract is no longer valid, ff it has been destroyed by the mere action of the carrier in publishing a new tariff, and the rates of the latter are in themselves reasonable, although in excess of the cont?act provisions, how ? a shipper recover damages? The contract is gone, has ceased to be valid, the new rates are reasonable, and the shipper must abide by the consequences of the arbitrary act of the carrier. But, it may be sa?d, tha? prescribing the limitation of ten days' notice of an increase in rates is an implied authority to the carrier to make such a raise, providing the new ratcs are reasonable. To my mind it seems more in accordance with the spirit and purp �f the Interstate Commerce Act to hold that, there being no express authority given to raise rates, the fact that the railway company has made a contract to operate for a reasonable time should be construed as an inhibition upon its right to make such a raise, and that the rates ns fixed by its
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