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there is a sufficient consideration for the reduction which shall lessen the cost to the company of the conveyance of their traffic, or some other or equivalent or other services are rendered to them by such individuals in relation to such traffic."

And in the important case of Interstate Commerce Commission v. Texas and Pacific Railroad Company, it was said: "The Interstate Commerce Act would be emasculated in its remedial efficacy, if not practically nullified, if a carrier can justify a discrimination in rates merely upon the ground that unless it is given, the traffic obtained by giving it would go to a competing carrier. A shipper having a choice between competing carriers would only have to refuse to send his goods by one of them unless given exceptional rates to justify that one in making a discrimination in his favor on the ground of the necessity of the situation."

744. Reductions to get competitive business illegal.

Such reductions to get business from a rival line are regarded as personal discrimination in most cases, however complicated the facts. This is a matter upon which the English cases have been particularly strong in holding that it is not sufficient that the railway company merely desires to attract the traffic from another line to itself, especially where the favor thus shown to a few is prejudicial to many others in the same trade as the favored persons. Thus the fact that one shipper can go by another route and will probably do so if charged as much as the charge made to the complaining party, is not a circumstance justifying an unequal charge; nor will the fact that those charged a less rate are seeking to develop a new trade. For the lowering of rates for the purpose of developing business is an undue prefer

3 52 Fed. 187 (1892).

4 Thompson v. London, etc., R. Co., 2 Nev. & Mac. 115.

5 Denaby Main Colliery Co. v. Manchester, S. & L. R. Co., L. R. 11 App. Cas. 97.

ence; and so is making a lower rate in consequence of a threat. from the owner of a colliery to construct another railway, by which traffic would be diverted.7

745. Concessions allowed by some cases to get shipments from outlying territory.

8

It has been seen that some courts permit any difference in the situation to be seized upon as a reason for making a discrimination. Thus in Ragan & Buffet v. Aiken, where a bill in equity was filed by merchants at a station on the defendant's railway who were charged a twenty-five-cent rate, who alleged that other shippers who brought their goods from an outlying district were charged only a fifteen-cent rate, the court sustained a demurrer to the bill, taking the ground that there was a difference shown in the circumstances. The argument of Mr. Justice Cooper in writing the opinion of the court was:

"In determining whether or not a company has given undue preference to a particular person, the court may look to the interests of the company.13 In other words, if the charge on the goods of the party complaining is reasonable, and such as the company would be required to adhere to as to all persons in like condition, it may, nevertheless, lower the charge to another person if it be to the advantage of the company, not inconsistent with the public interest, and based on a sufficient reason. It is obvious that the intention of the defendant, in this instance, was not to discriminate against the complainants in favor of any person of the same place, and in the same condition. His object was to get business for his road from persons at a distance from its terminus, which otherwise would reach their destination by a differ

6 Oxlade v. North Eastern R. Co., 1 C. B. N. S. 454, S. C. 26 L. J. C. P. 129, 1 Nev. & Mac. 72.

7 Harris v. Cockermouth & W. R. Co., 3 C. B. N. S. 693, S. C. 27 L. J. C. P. 162, 1 Nev. & Mac. 97.

89 Lea (77 Tenn.), 609 (1882).

13 Citing Ransome v. Eastern Counties Ry., 1 C. B. N. S. 437 (1855).

ent route. Under these circumstances we cannot see that the contracts complained of are against public policy, or that the complainants have been damaged, if the charges on their goods were reasonable. The bill contains no allegation that the charges made against, and paid by the complainants, were unreasonable. Without such an averment, there has been no damage. The third ground of demurrer was, therefore, well taken." 14

§ 746. Such concessions forbidden by later cases.

But such concessions are forbidden by the later cases as illegal discrimination. Thus in one proceeding before the Interstate Commerce Commission, 15 the facts shown were that a higher rate was charged to goods brought to one terminus for consumption there than for goods which were to be carted beyond to another district. In declaring this illegal, Commissioner Morrison said: "In collecting more from complainants and others for carrying goods to Eureka Springs, not to be forwarded, than they accept for carrying goods of the same classes from the same places to Eureka Springs to be forwarded to points in said Harrison transportation district, the defendants receive greater compensation from complainants than from other persons for a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions,' and are guilty of unjust discrimination; and in thus denying to complainants and other shippers of articles to Eureka Springs, for use there or for distribution from that place, the same transportation charges which they accord to shippers and and receivers of like articles there to be forwarded to Harrison and other places for distribution, the defendants subject the complainants, the business in which they are engaged, and the city of Eureka Springs to unreasonable disadvantage and give

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14 In the important case of Johnson v. Pensacola & P. R. R., 16 Fla. 623, 26 Am. Rep. 731 (1878), the facts and the decision were the same. 15 Cary v. Eureka Springs Ry., 7 I. C. C. Rep. 286 (1897).

to Harrison and such other places, and to shippers and receivers of articles of freight at such other localities, undue preference. The defendant railway companies will be required to discontinue the illegal practice of exacting from complainants and other shippers to Eureka Springs proper, any greater charges than are at the same time demanded and received from other persons for the transportation of freights to Eureka Springs to be forwarded to more favored localities." 16

§ 747. Shippers making expensive preparations cannot be favored.

In Bundred v. Rice,17 a shipper of oil set forth in his complaint a most extraordinary state of affairs-a contract whereby a railroad company bound itself to carry for one shipper crude petroleum at half the rate it agreed to charge all others, and to pay such favored shipper one half the amount collected from others, in consideration of his agreeing to establish and maintain a system of pipe lines to its road. This was held wholly void and money so paid by a shipper in ignorance of the agreement, and received by the favored shipper was recovered back in an action for money had and received by the former against the latter. An extract from the per curiam opinion follows: "That the contract between Brundred and his associates was against public policy, and void, will hardly admit of a question. As said by Baxter, J., in Handy v. Railroad Co.:18 Railroads are constructed for the common and equal benefit of all persons wishing to avail themselves of the facilities which they afford. While the legal title thereof is in the corporation or individuals

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16 Compare Bigbee & W. R. Packet Co. v. Mobile & Ohio R. R., 60 Fed. 545 (1893), where the court laid it down as a fundamental principle that all goods offered for shipment at a certain point must be carried at the established rate for such goods from such point, regardless of the place where they originated.

17 49 Ohio St. 640, 32 N. E. 169, 34 Am. St. Rep. 589 (1892)

18 31 Fed. 689 (1888).

owning them, and to that extent private property, they are, by the law and consent of their owners, dedicated to the public use. Except in the mode of using them, every citizen has the same right to demand the services of railroads, on equal terms, that they have to the use of a public highway, or the government mails.' Whatever may have been the financial condition of the railroad company, it was not warranted in making a contract by which it bound itself to carry for one shipper at half the rate it agreed to charge all others for the same service, in consideration of his agreeing to establish a system of pipe lines to its road; at the same time and for the same consideration binding itself to charge all others double the amount as a fixed, open rate, and to pay to such favored shipper one half of it when collected."

§ 748. Additional services performed for certain shippers.

Upon the general principles now under discussion it will constitute discrimination to perform additional services for certain shippers in order to get their business. The issue has several times been raised whether it would be permissible for a railroad to make allowance for cartage to certain shippers distant from the station, while making no such allowance to other shippers, and the decision has always been that this would be illegal discrimination.19 For the feeling has been universal that the varying cost of shippers in delivering to the carrier for shipment can have no bearing on the case. In the most important case of this series,20 Mr. Justice Brewer said: "It is contended 20 Wight v. United States, supra.

by the defendant that it was necessary for the Baltimore & Ohio Company to offer this inducement to Mr. Bruening in order to get his business, and not necessary to make the like offer to Mr. Wolf, because he would have to go to the expense of carting, by

19 Wight v. United States, 167 U. S. 512, 42 L. Ed. 258, 17 Sup. Ct. 822 (1897); Hezel Milling Co. v. St. Louis, A. & T. H. R. R., 5 I. C. C. Rep. 57; Chicago F. P. C. Co. v. Chicago & N. W. Ry., 8 I. C. C. Rep. 316; The Brandt Milling Co.'s Case, 4 Can. Ry. Cas. 259.

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