Evening star. [volume] (Washington, D.C.) 1854-1972, 1913-04-29
Law Violated for Thirty
Years by ''Free" Delivery,
Merchants Attorney Says

| chants OF Washington. This is the con-
tention Of Milton d. Rosenberg. attor-
| ney for the Retail Merchants Asso-
citation, in a brief fled with the inter-
state commerce commission today in q
| case involving the withdrawal Of free
store door delivery I'm Washington.
The brief asserts that the withdrawal
| of the practice, while it<would not only
work a hardship, would be a breach
of contractual relations.
1t is further pointed out that its dis
continuance would be discriminatory, and
also that the question OF other cities
wanting the delivery has no right to fig
ure in this case. Mr.. Rosenberg declares
that the railroads have utterly failed to
show the reasonableness Of the proposed
change.
Launching into his argument with the
matter of free delivery. Mr.. Rosenberg
declares it never has been free, for the
reason that the carriage from the station
to the storedOor of the consignee has
always been contemplated and included
as a part Of the service from the place
where the shipment originated. and the
contractual relations established between
the railroads and the consignees referred
to. made certain fixed rates. which in
cluded loading at place OF origin, trans
portation over the railroad lines, delivery
to the freight station in Washington. D.
c., and carriage to the door OF the con-
signee: no part Of the same should be re-
garded as free or gratuitous.
Discrimination Is Cited.
Then taking up the matter Of violating
the law, the brief says. after quoting the
section Of the interstate commerce act
relating to discrimination: 1t will be
seen that II the railroads have
been giving free store-door delivery
they have been doing an unlawful act,
as set forth in the above section, and It
can hardly be assumed that they would
attempt to justify their position in this
case by claiming to have violated the
law by system practiced by them for
more than thirty years past. He that
comes into equity must come with clean
hands,
It is then pointed out that to with
draw the service from Washington and
let it remain in Baltimore. this also
would be discrimination and In vio-
lation of law. Many cases are pointed
to in supporting this contention Mr.:
Rosenberg says that where rates and
services have been long standing and the
shippers have adjusted themselves and
their business to these conditions Of trans
portation, the taking away OF any part
of the service would work a hardship
upon the shippers which could not be
justified under the act to regulate COM
merce. He then cites q decision OF the
commission itself to uphold his conten-
ton.
Pointing to Q case where the commits
sion decided that the published charges
of a carrier covered not only the car
riage. but services rendered in receiving
sans saa ae0Se''ns the properly '"s '''e'
st would accordingly appear that pay
ment or compensation for stOre-dOOr de-
livery has always under the existing
system been included in the rate from
points Of origin: that the carrier has
been compensated for the same, ana that
the said compensation and resulting
profit has been adequate. and, having been
no proffer made by the carriers to make
a corresponding reduction in the rate II
the carriage service Is eliminated. IT
would seem unjust and upjustifiable to
have the said service discontinued. and
more so as the carriers themselves adopt
ed the practice for continuity OF thirty
years. and having acquiesced In present
tariff rate. which includes store-door de-
livery for period of ten years, they
would surely be estopped by their own
act from withdrawing 1t Qr claiming that
1t has been maintained at loss.
Numerous Authorities Given.
Taking I'D the contention of the rail-
roads that they were not obligated to
make a personal delivery. Mr.. Rosenberg
declares that this has no application to
the present case for the reason that
the defendants themselves, by usage and
custom Of more than thirty years. estab-
lished this additional privilege Of cart
age by contractual agreement from which
neither side has departed during the
period referred to ." He declares
that 1t is assumed that charge has been
made by the carriers for the service per-
formed which not only reimburses them,
but gives them reasonable profit.
Numerous authorities are cited in the
brief to support the contention that the
withdrawal of the delivery practice would
In effect be an increase in rates.
The ability of the carrier to continue
store-door delivery without sustaining
any loss from the practice would ap-
pear to be supported by testimony of
the protestants. according to Mr..
Rosenberg, who says further that 'the
testimony adduced also shows that
years ago 1t was made necessary by
congestion in the freight terminals.
which from time to time had been
relieved by additional freight and
storage facilities. and IL these facili-
ties made the handling of freight less
troublesome 1t would seem that 1t
might be correspoDdingly less expen-
sive for the freight companies to han
die the same; furthermore. 1t is testt-
fed to that the business has grown ten
started, and necessarily a large vol
ume Of business should minimize the
proportionate expense. and corre-
spondingly increase the profit for the
railroads"
Declares Protest Weighty.
The brief on behalf of the merchants
declares also that weight should be at
tached to the protest Of tho Post ONCE
Department, from which it could be
fairly deducted that the other depart
ments of the government are entitled to
like consideration.
1.-The only points advanced with any
force by the railroads." says Mr.. Rosen-
berg. in concluding, "have been that they
desire the store-door delivery eliminated
in order to obtain a uniformity Of prac-
tice. and also for the reason that the
original purpose. namely. the congestion
OF the terminals, no longer exists at the
present day, q very weak showing as
compared with the vast amount Of loss
and inconvenience which the Washington
shippers will sustain should the claim of
the railroads be sustained in this case
The reasons advanced by the railroads in
the evidence are mere Incidents, and
should not be controlling as against the
position of the protestants. 1t is accord
ingly submitted that to deprive the citi-
zens OF the District Of Columbia Of the
benefits Of a system in vogue for the past
thirty years upon the showing made
would be SO obviously unjust as to war
rant the commission I'm deciding the is
sues In this cause In favor OF the protest.
ants