Imágenes de páginas
PDF
EPUB

benefit of others. Such charges, therefore, are not only unjust and contrary to the very spirit of the American people, but they are sufficiently injurious to arouse to action those who are injured. The consumer usually pays the unjustly high rate, but the shipper or the community is injured, sometimes ruined, by the discriminatory rate. Under the once prevalent system of rebating, businesses were built up or destroyed by carriers. Even since rebating has practically ceased, cities are helped or injured by privileges given the one and withheld from the other. Rarely would carriers have complaints of rates if all rates and practices were adjusted without unjust discrimination and undue preference. Speaking of the evils existing before the Act to Regulate Commerce was passed by Congress, and which evils the states had ineffectually attempted to remedy, the Supreme Court said:14

"These evils ordinarily took the shape of inequality of charges made, or of facilities furnished, and were usually dictated by or tolerated for the promotion of the interests of the officers of the corporation or of the corporation itself, or for the benefit of some favored persons at the expense of others, or of some particular locality or community, or of some local trade or commercial connection, or for the destruction or crippling of some rival or hostile line."

The problem of giving shippers a just equality is not an easy one of solution by the carriers. It is easier to know what is just equality than to adopt such rates and practices as will accomplish that end. Long-existing injustice is hard to dislodge. A particular discrimination that has long continued in favor of a community, may have become, in the eyes of that particular community, a vested right. It is hard for the beneficiary of a wrong to see that wrongs do not become rights by mere lapse of time. Carriers frequently welcome the aid of the Commission to help rid themselves of practices that are unjustly discriminatory.

§ 142. Discrimination Against Individuals.-Section 2 of the Interstate Commerce Act (Post, Section 427) was intended to prevent different charges for different persons for a like

14 Int. Com. Com. v. Baltimore & O. R. Co., 145 U. S. 263, 36 L. Ed. 699, 703, 12 Sup. Ct. 844.

66

and contemporaneous service to a like kind of traffic under substantially similar circumstances and conditions. Under the same circumstances" and "goods of the same description," as used in the English law, are not used with reference to the contents of the parcels, but to the parcels themselves, that is, like or different for the purposes of carriage. They are also used with reference to the conveyance of goods and not to the persons themselves.15 This means, and the Interstate Commerce Act has also been so construed, that competition, however great, cannot justify charges to one person greater than those to another. Two shippers, shipping a like kind of traffic at the same time, over the same road, are entitled to the same rate. It makes no difference that one may be in a position to ship over another line, or that his total shipments may greatly exceed those of the other. In Wight v. United States,16 the Supreme Court, speaking of the phrase "under substantially similar circumstances and conditions," said:

"For this case, it is enough to hold that that phrase as found in Section 2, refers to the matter of carriage, and does not include competition."

In the Troy, Alabama, case,17 the Supreme Court advanced the same ruling as follows:

"To prevent misapprehension, it should be stated that the conclusion to which we are led by these cases, that, in applying the provisions of the 3d and 4th sections of the act, which make it unlawful for common carriers to make or give any undue or unreasonable preference or advantage to any particular person or locality, or to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially

15 G. W. Ry. Co. v. Sutton, 38 L. J. Ex. 177, L. R. 4 H. L. 226, 22 L. T. 43, 18 W. R. 92.

16 Wight v. United States, 167 U. S. 512, 42 L. Ed. 258, 17 Sup. Ct. 822. See also Int. Com. Com. v. Detroit G. H. & M. Ry. Co., 167 U. S. 633, 42 L. Ed. 306, 310, 17 Sup. Ct. 986; Re Restricted Rates, 20 I. C. C. 426, 433.

17 Int. Com. Com. v. Alabama M. R. Co., 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45; Pennsylvania R. Co. v. International Coal Mining Co., 173 Fed. 1, 97 C. C. A. 383; reversed on another point, Pennsylvania R. Co. v. International Coal Mining Co., 230 U S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 893.

similar circumstances and conditions, for a shorter than a longer distance over the same line, in the same direction, competition which affects rates is one of the matters to be considered, is not applicable to the 2d section of the act.

"As we have shown in the recent case of Wight v. United States, 167 U. S. 512 (42 L. Ed. 258, 17 Sup. Ct. 822), the purpose of the second section is to enforce equality between shippers over the same line, and to prohibit any rebate or other device by which two shippers, shipping over the same line, the same distance, under the same circumstances of carriage, are compelled to pay different prices therefor, and we there held that the phrase 'under substantially similar circumstances and conditions,' as used in the second section, refers to the matter of carriage, and does not include competition between rival routes.

"This view is not open to the criticism that different meanings are attributed to the same words when found in different sections of the act; for what we hold is that, as the purposes of the several sections are different, the phrase under consideration must be read, in the second section, as restricted to the case of shippers over the same road, thus leaving no room for the operation of competition, but that in the other sections, which cover the entire tract of interstate and foreign commerce, a meaning must be given to the phrase wide enough to include all the facts that have a legitimate bearing on the situation-among which we find the fact of competition when it affects rates."

Kirkman, in the Science of Railways, vigorously argues against any governmental regulation of railroads, but he admits that there is no justice in distinguishing between persons. He says:18

"If a railroad refuses to one shipper what it concedes to another, everything being alike, article, place, time, quantity, risk, and service, that is not discrimination, but robbery. Petty instances of this kind have occurred in the history of railway management. But they are only instances. They are, however, the stock in trade of railway critics. They are un

18 Vol. 8, p. 110.

worthy of notice. They form no appreciable element, and are not to be compared for a moment to the benefits that grow out of the ability of carriers to adapt their properties to the varying needs of those they serve."

The equality required by Section 2 of the Act is required as to all persons when "a like and contemporaneous service” relating to a "like kind of traffic" transported "under substantially similar circumstances and conditions" is performed. The three quoted provisions are limitations on, or exceptions to, the general principle of equality. What, then, is meant by these phrases? In Mitchell Coal & Coke Co. v. Penn. R. Co.,19 the contention was made that "contemporaneous" must be confined to shipments made practically at the same moment of time, and that shipments as much as a month apart were too remote to come within the meaning of the statute. Obviously, such a construction would destroy the practical effect of the law, and the court properly held that the word referred to rates in effect and meant "at the same time with the offending rates." In affirming this case in part, the Supreme Court recognized and applied this construction.20

"Like kind of traffic" permits a classification of different commodities, but the phrase refers to the traffic itself, and not to the use to which it should be put nor to its ownership.

In Section 96, Chapter III hereof, is discussed the cases referring to the use of a commodity. Under the holdings of the Commission and the decisions of the courts, in the words. "like kinds of traffic," like modifies traffic and not the use to which the traffic may be put.21

How "similar circumstances and conditions" has been construed is shown in the first part of this section. That different persons may own the commodities shipped constitutes no dif

19 Mitchell Coal Co. v. Pennsyl vania R. Co. 181 Fed. 403, 411.

20 Mitchell Coal & Coke Co. V. Pennsylvania R. Co., 230 U. S. 247, 57 L. Ed. 1472, 33 Sup. Ct. 916.

21 Int. Com. Com. v. Baltimore &

C. R. Co., 225 U. S. 326, 57 L. Ed. 1107, 32 Sup. Ct. 742. See also Business Men's Assn. v. Chicago, St. P. M. & O. R. Co., 2 I. C. C. 52, 2 I. C. R. 41.

ferent circumstance or condition.22 The words relate to the circumstance of carriage only.23 The provision requires the same equality as to the incidents of transportation, the accessorial services; thus it is illegal to give a shipper a preference by the devise of leasing to him at a nominal charge land used in the transportation of his commodities.24 So, it is illegal to concede a favored shipper the privilege of giving notes in payment of freght due.25 The rule of equality extends to demurrage.26 The provisions of the Elkins Act prohibiting rebates will be discussed in a subsequent section.27

§ 143. Same Subject-Construction by the Commission.In Capital City Gas Co. v. Central V. R. Co.,28 Mr. Commissioner Knapp, speaking for the Commission and having under consideration rates, one of which was made for coal when delivered to a connecting carrier for "railroad supply," and the other and higher of which was a combination rate applicable to coal used for commercial purposes and purposes other than "railroad supply," said:

"When bituminous coal is carried by defendants from Norwood to Montpelier the service is performed under substantially similar circumstances and conditions whether transported for a connecting railroad or for complainant and other

[blocks in formation]

"We are constrained to hold that these facts, which are wholly undisputed, establish a discrimination forbidden by the second section of the act.

22 Int. Com. Com. v. Delaware, L. & W. Ry. Co., 220 U. S. 235, 55 L. Ed. 448, 31 Sup. Ct. 392, reversing Delaware, L. & W. Ry. Co. v. Int. Com. Com., 166 Fed. 499. See as to persons, Re Advances on Manganese Ore, 25 I. C. C. 663, 668; Re Commutation Tickets to School Children, 27 I. C. C. 144.

23 Pennsylvania R. Co. v. International Coal Mining Co., 173 Fed. 1, 97 C. C. A. 383. See same case, 230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct.

In transporting bituminous

24 Southern Pacific Terminal Co. v. Int. Com. Com., 219 U. S. 498, 55 L. Ed. 310, 31 Sup. Ct. 279.

25 United States v. Sunday Creek Co., 194 Fed. 252; affirmed same styled case, 210 Fed. 747.

26 Lehigh Valley R. Co. v. United States, 188 Fed. 879.

27 Sec. 462.

28 Capital City Gas Co. v. Central Vermont R. Co., 11 I. C. C. 104, 105, 106, 107.

« AnteriorContinuar »