PART II. PREVENTION OF DISCRIMINATION. CHAPTER XXI. GENERAL PRINCIPLES GOVERNING DISCRIMINATION. TOPIC A-DIFFERING THEORIES AS TO DISCRIMINATION. § 711. Development of the rule against discrimination. 712. Early view that there was no law against discrimination as such. 713. Later rule against unreasonable differences. 714. Outright discrimination now universally condemned. 715. All discrimination forbidden by the better view. TOPIC B-VIEW THAT NO RULE AGAINST DISCRIMINATION AS SUCII. § 716. Extension of the rule against unreasonable rates. 717. No rule against discrimination as such. 718. Discrimination as evidence of unreasonable rates. 719. Special concessions may be made from established rates. 720. Outright discrimination unreasonable. 721. Undue preferences forbidden. 722. Special rates may not be discriminatory. 723. Exclusiveness of the privilege creates discrimination. TOPIC C-VIEW THAT DISCRIMINATION ILLEGAL IN ITSELF. 724. Necessity for the rule against discrimination. 725. Evils of discriminations between competitors. 726. Discriminations foster monopolies. 727. Rule forbidding discrimination goes beyond rule beginning rea sonable rates. 728. Public injury by discriminations in freight rates. 729. Public wrong in giving free passes to passengers. 730. Giving free passes prima facie discrimination. TOPIC D-WHAT CONSTITUTES DISCRIMINATION. § 731. Not all differences are discriminatory. 732. Whether the rule is limited to discrimination between competitors. 733. Whether reductions can be made for benevolent purposes. 734. Whether concessions may be made for special purposes. 735. Whether differences in the conditions of service may be recognized. 736. Differences may be made proportionate to the cost of service. TOPIC A- -DIFFERING THEORIES AS TO DISCRIMINATION. § 711. Development of the rule against discrimination. The fundamental limitation upon the charges of a common carrier, that they shall be in no respect unreasonable, has just been discussed with much detail. But a further requirement of the public service law governing the rates of the common carrier remains to be considered, and that is the more modern requisite that rates shall be in no respect unjustly discriminatory. It must be plain to all who have followed the course of events with the least attention that there has been distinct evolution in the law governing public employment during the last twenty-five years. The rule against discrimination is the most recent development in the definition of public duty. A comparatively few years ago it was held that if a public service company served at reasonable rates it performed its obligation; but modern industrial conditions require the further law that it shall serve with equality. The double aspect in which the duty of the common carrier is making its rates is viewed by the more advanced courts is well stated by one judge thus: "The statement that one is a common carrier, ex vi termini, imports a duty to the public, and a corresponding legal right in the public, a right common to all. One of the duties imposed upon the common carrier is, that he is bound to carry for a reasonable remuneration, and is not allowed to make unreasonable and excessive charges. He cannot, like a merchant or mechanic, consult his pleasure or caprice in the conduct of his business, and cannot even by special agreement receive an Another duty excessive and extortionate price for his services. imposed upon him is to make no unjust, injurious or arbitrary discriminations between individuals in his dealings with the public. The right to the transportation services of the carrier is a common right belonging to every one alike." 1 § 712. Early view that there was no law against discrimination as such. The state of the law as to this matter at the middle of the nineteenth century is well set forth in the important case of Fitchburg Railroad v. Gage. The principal issue in this case was whether the railroad could charge one shipper a fifty cent rate on ice from one point on their route to another while it was charging another shipper a twenty cent rate on brick for the same transportation. It will be seen that this case really involves no question of personal discrimination since these are obviously very different goods which are being shipped over the route. Still the language of the court is often cited as expressing the opinion that there is no rule against discrimination as such and this undoubtedly was their view. Mr. Justice Merrick thus concluded his discussion of the general rights and duties of common carriers according to the common law as he conceived it to be: "The principle derived from that source is very plain and simple. It requires equal justice to all. But the equality which is to be observed in relation to the public and to every individual consists in the restricted right to charge, in each particular case of service, a reasonable compensation, and no more. If the carrier confines himself to this, no wrong can be done, and no cause afforded for complaint. If, for special reasons, in isolated cases, the carrier sees fit to stipulate for the carriage of goods or merchandise of 1 Per Baker, J., in St. Louis A. & T. H. Co. v. Hill, 14 Ill. App. 579 (1884). 2 12 Gray (Mass.), 393, B. & W. 354 (1859). any class for individuals for a certain time or in certain quantities for less compensation than what is the usual, necessary, and reasonable rate, he may undoubtedly do so without thereby entitling all other persons and parties to the same advantage and relief. It could of course make no difference whether such a concession was in relation to articles of the same kind or belonging to the same general class as to risk and cost of transportation. The defendants do not deny that the charge made on them for the transportation of their ice was according to the rates established by the directors of the company, or assert that the compensation claimed is in any degree excessive or unreasonable. Certainly then the charges of the plaintiffs should be considered legal as well as just; nor can the defendants have any real or equitable right to insist upon any abatement or deduction, because for special reasons, which are not known and cannot therefore be appreciated, allowances may have been conceded in particular instances, or in reference to a particular series of services, to other parties." 3 § 713. Later rule against unreasonable differences. 4 For a considerable time thereafter this remained the prevailing statement of the extent of the limitations which the law placed upon the charges of the carrier. Indeed as new cases arose the courts committed themselves to still more definite statements. Thus in the case of Johnson v. Pensacola and Perdido Railroad Company the court refused to grant reparation to a complainant who showed that while they were charging him one rate for transportation of lumber they were charging another shipper one-third less for the same transportation under circumstances and conditions in all respects that were esessential entirely similar. Mr. Justice Westcott in delivering the opinion of the court held this declaration demurrable by the 3 See §§ 716-719, infra, and cases cited. 4 16 Fla. 623, 26 Am. Rep. 731 (1878). weight of authority. "Our conclusions," he said, "are that, as against a common or public carrier, every person has the same right; that in all cases, where his common duty controls, he cannot refuse A and accommodate B; that all, the entire public, have the right to the same carriage at a reasonable price, and at a reasonable charge for the service performed; that the commonness of the duty to carry for all does not involve a commonness or equality of compensation or charge; that all the shipper can ask of a common carrier is, that for the service performed he shall charge no more than a reasonable sum to him; that whether the carrier charges another more or less than the price charged a particular individual, may be a matter of evidence in determining whether a charge is too much or too little for the service performed, and that the difference between the charges cannot be the measure of damages in any case, unless it is established by proof that the smaller charge is the true reasonable charge in view of the transportation furnished, and that the higher charge is excessive to that degree." 5 5 See §§ 720-723, infra, and cases cited. 714. Outright discrimination now universally condemned. Even in so extreme a case as the one last cited some qualifications were made; the power to discriminate as much as it pleased between shippers was not left to the railroads. For even then it was vaguely felt that equal service to all dealers upon fair terms was necessary for the maintainance of free industrial conditions. And the courts never went so far that they could not be continually more insistent that they had meant that reasonable rates to all must be equal rates to all unless the conditions were shown to be disssimilar. This is the position still taken in many jurisdictions, but it will be seen that to a large extent it prevents discriminatory rates as well as unreasonable charges. An elaborate case of the sort just described from a comparatively recent period is Cook v. Chicago, Rock Island and Pa |