certain limits, they stand in the community as other individuals invested with the power to contract and be contracted with, and the validity of their contracts depends upon the same principles which govern contracts between natural persons. It is too vague to say, in general terms, that the contract is inequitable and against public policy, and, therefore, not enforceable. To be void on such grounds, it must run contra to some known principle of equity or contravene some well-established doctrine of public policy forbidding it." 3

§ 718. Discrimination as evidence of unreasonable rates.

In an outrageous case the principles discussed in these cases. will usually be found to give relief. Thus where one shipper was "blacklisted" by a common carrier and subjected to unreasonable discriminations, including being charged more than usual rates, because he maintained business relations with a rival carrier, the court issued an injunction, Judge Baxter saying: "Unquestionably a common carrier is always entitled to a reasonable compensation for his services. Hence it follows that he is not required to treat all those who patronize him with ab

3 Of the cases cited in the preceding section see, especially, the following for their definite language:

California-Cowden v. Pacific C. S. S. Co., 94 Cal. 470, 29 Pac. 873, 28 Am. St. Rep. 142, 18 L. R. A. 221 (1892).

Florida-Johnson v. Pensacola & P. R. R., 16 Fla. 623, 26 Am. Rep. 731 (1878).

Massachusetts-Fitchburg R. R. v. Gage, 12 Gray, 393, B. & W. 354

(1859).

New Hampshire-Concord & P. R. R. v. Forsaith, 59 N. H. 122, 47 Am. Rep. 181 (1879).

New York-Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292, 42 Am. St. Rep. 712, 25 L. R. A. 674, B. & W. 380 (1894); Langdon v. N. Y., L. E. & W. R. R., 9 N. Y. Supp. 245 (1890).

South Carolina-Ex parte Benson & Co., 18 S. C. 38, 44 Am. Rep. 564 (1882).

Texas-Houston & T. C. Ry. v. Rust & Dinkins, 58 Tex. 98 (1882). 4 Menacho v. Ward, 27 Fed. 529, B. & W. 372 (1886).

solute equality. It is his privilege to charge less than fair compensation to one person, or to a class of persons, and others cannot justly complain so long as he carriers on reasonable terms for them. Respecting preferences in rates of compensation, his obligation is to charge no more than a fair return in each particular transaction, and except as thus restricted he is free to discriminate at pleasure. This is the equal justice to all which the law exacts from the common carrier in his relations with the public. In the present case the question whether the defendants refuse to carry for the complainants at a reasonable compensa*tion resolves itself into another form. Can the defendants lawfully require the complainants to pay more for carrying the same kind of merchandise, under like conditions, to the same places, than they charge to others, because the complainants refuse to patronize the defendants exclusively, while other shippers do not? The fact that the carrier charges some less than others for the same service is merely evidence for the latter, tending to show that he charges them too much; but when it appears that the charges are greater than those ordinarily and uniformly made to others for similar services, the fact is not only competent evidence against the carrier, but cogent evidence, and shifts upon him the burden of justifying the exceptional charge. The estimate placed by a party upon the value of his own services of property is always sufficient, against him, to establish the real value; but it has augmented probative force, and is almost conclusive against him, when he has adopted it in a long continued and extensive course of business dealings, and held it out as a fixed and notorious standard for the information of the public."

5 Citing Fitchburg R. Co. v. Gage, 12 Gray, 393, B. & W. 354 (1859), inter alia.

6 Discrimination was held evidence of unreasonable rates in the following cases, among others:

United States-Union Pac. Ry. Co. v. Goodridge, 149 U. S. 630, 37 L. Ed. 986, 13 Sup. Ct. 970 (1893); Parsons v. Chicago & N. W. Ry., 167

8719. Special concessions may be made from established

rates.

Even in some comparatively recent cases these general doctrines are stated in much the same language as formerly. Thus in Lough v. Outerbridge, in holding that a common carrier might grant special reductions in pursuance of a policy to maintain its business in the face of competition, the court held that those who would not conform to the conditions had no complaint if they were not given the reduced rates. The court thus stated the general principles governing the situation as it conceived them to be. "There can be no doubt that the carrier could at common law make a discount from its reasonable general rates in favor of a particular customer or class of customers in isolated cases, for special reasons, and upon special conditions, without violating any of the duties or obligations to the public inherent in the employment. If the general rates are reasonable, a devia

U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887 (1897); Hays v. Pennsylvania Co., 12 Fed. 309, B. & W. 368 (1882); Menacho v. Ward, 27 Fed. 529, B. & W. 372 (1886); Missouri Pac. R. R. v. Texas & Pac. R. R., 30 Fed. 2 (1887); Burlington C. R. & N. Ry. v. N. W. Fuel Co., 31 Fed. 652 (1887). Alabama-Mobile & O. R. R. v. Dismuker, 94 Ala. 135, 17 L. R. A. 113 (1891); Mobile v. Bienville Water S. Co., 130 Ala. 379, 30 So. 445, B. & W. 417 (1901).

Colorado Bayles v. Kansas Pac. R. R., 13 Colo. 181, 22 Pac. 341, 5 L. R. A. 480 (1889).

Illinois-St. Louis, A. & T. H. R. R. v. Hill, 14 Ill. App. 579 (1884). Indiana-Louisville, E. & St. L. Con. R. Co. v. Wilson, 132 Ind. 517, 32 N. E. 311 (1892).

Iowa-Cook v. Chicago, R. I. & P. Ry. Co., 81 Iowa, 551, 46 N. W. 749, 25 Am. St. Rep. 512, 9 L. R. A. 764 (1890).

Missouri-Christie v. Missouri P. R. R., 94 Mo. 453, 7 S. W. 567

(1888).

New Hampshire-McDuffee v. Portland & R. R. R., 52 N. H. 430, 13 Am. Rep. 72, B. & W. 149 (1873).

New York-Root v. Long I. R. R., 114 N. Y. 300, 21 N. E. 403, 11 Am. St. Rep. 643, 4 L. R. A. 33, B. & W. 377 (1889).

7 143 N. Y. 271, 38 N. E. 292, 42 Am. St. Rep. 712, 25 L. R. A. 674, B. & W. 380 (1894).

tion from the standard by the carrier in favor of particular customers, for special reasons not applicable to the whole public, does not furnish to parties not similarly situated any just ground for complaint. When the conditions and circumstances are identical, the charges to all shippers for the same service must be equal. These principles are well settled, and whatever may be found to the contrary in the cases cited by the learned counsel for the plaintiff originated in the application of statutory regulations in other States and countries.8 Special favors in the form of reduced rates to particular customers may form an element in the inquiry whether, as matter of fact, the standard rates are reasonable or otherwise. If they are extended to such persons at the expense of the general public, the fact must be taken into account in ascertaining whether a given tariff of general prices is or is not reasonable. But as in this case the reasonable nature of the price for which the defendants offered to carry the plaintiff's goods has been settled by the findings of the trial court, it will not be profitable to consider further the propriety or effect of such discrimination." 919

8 Railroad Co. v. Gage, 12 Gray, 393, B. & W. 354 (1859); Sargent v. Railroad Co., 115 Mass. 422 (1874); Steamship Co. v. McGregor, 21 Q. B. Div. 544, affirmed 23 Q. B. Div. 598, and by H. L. 17 App. Cas. 25 (1892); Evershed v. Railway Co., 3 Q. B. Div. 135, affirmed L. R. 3 App. Cas. 1029 (1878).

9 See, also:

United States-Hays v. Pennsylvania Co., 12 Fed. 309, B. & W. 368 (1882).

Florida-Johnson v. Pensacola & P. R. R., 16 Fla. 623, 26 Am. St. Rep. 731 (1878).

Illinois-Chicago, B. & Q. R. R. v. Parks, 18 Ill. 464, 68 Am. Dec. 562

(1856).

Missouri-Rothschild v. Wabash, St. L. & P. R. R., 92 Mo. 91, 4 S. W.

418 (1887).

New York-Killmer v. New York C. R. R., 100 N. Y. 395, 3 N. E. 293, 53 Am. Rep. 194 (1885).

Pennsylvania-Com. v. Delaware & H. C. Co., 45 Pa. St. 295, B. & W. 405 (1862).

720. Outright discrimination unreasonable.

It will be noted that in none of these cases is the possibility of giving legal redress for outright discrimination quite cut off. That it is not impossible to hold the views herein expressed and yet find simple discrimination illegal is shown by the opinion of Chief Justice Doe in McDuffee v. Portland and Rochester Railroad, 10 an important case, elsewhere discussed fully. He said in part:

"The commonness of the right necessarily implies an equality of right, in the sense of freedom from unreasonable discrimination; and any practical invasion of the common right by an unreasonable discrimination practised by a carrier held to the common service is insubordination and mutiny, for which he is liable to the extent of the damage inflicted, in an action of case at common law. The question of reasonableness of price may be something more than the question of actual cost and value of service. If the actual value of certain transportation of one hundred barrels of flour, affording a reasonable profit to the carrier, is one hundred dollars; if, all the circumstances that ought to be considered being taken into account, that sum is the price which ought to be charged for that particular service; and if the carrier charges everybody that price for that service, there is no encroachment on the common right. But if for that service the carrier charges one flour merchant one hundred dollars, and another fifty dollars, the common right is as manifestly violated as if the latter were charged one hundred dollars and the former two hundred. What kind of a common right of carriage would that be which the carrier could so administer as to unreasonably, capriciously, and despotically enrich one man and ruin another? If the service or price is unreasonable and injurious, the unreasonableness is equally actionable, whether it is in inequality or in some other particular. A service or price that would otherwise be reasonable may be made unreasonable by an unreason

10 52 N. H. 430, 13 Am. Rep. 72, B. & W. 149 (1873).