number of tons per day. It appeared that the railroad received a quantity of freight from the factory. A coal dealer, established in business subsequent to the making of the contract, was charged a greater rate for coal. Held, that the conditions of the shipments were not substantially alike so that the difference in rate made an undue discrimination within the meaning of the statute of Pennsylvania providing that there should be no discrimination in rates "for a like service from the same place, upon like conditions and under similar circumstances."-Hoover v. Pa. R. Co., 156 Pa. 220, 27 Atl. 282, 22 L. R. A. 263.

One carload of lumber is "like" another.-N. Y. T. & M. R. Co. v. Gallaher, 79 Tex. 685, 15 S. W. 694.

The words "under similar circumstances are used not with reference to what the parcels contain, or their ownership, but the parcels themselves and their conveyance.- Great Western R. Co. v. Sutton, L. R. 4 H. L. 226.

[34]

What difference in circumstances justifies.

What dissimilarity in "circumstances and conditions" makes differences in rates not discriminatory.- Brewer v. Central of Ga. R. Co., 84 Fed. 258.

Dissimilarity in circumstances as warranting differences in rates.Bigbee & W. R. P. Co. v. Mobile & O. R. Co., 60 Fed. 545.

There must be reasonable, just and appreciable differences in conditions before a difference in rates can be allowed.- Louisville & N. R. Co. v. Commonwealth, 108 Ky. 628, 22 Ky. L. R. 328, 57 S. W. 508.

It is for the Interstate Commerce Commission to determine whether, in given cases, the services rendered were like and contemporaneous whether the respective traffic was of a like kind, and whether the transportation was under substantially similar conditions.- Texas & P. R. Co. v. Interst. Com. Commission, 162 U. S. 197, 16 Sup. Ct. R. (U. S.) 666, revg. s. c. 57 Fed. 48, affg. s. c. 52 Fed. 187.

Whether circumstances and conditions of carriage have been substantially similar or otherwise are questions of fact depending on the matters proved in each case.- Interst. Com. Commission v. Ala. Mid. R. Co., 168 U. S. 144, 18 Sup. Ct. R. 45, affg. 74 Fed. 715, 69 Fed. 227; Missouri Pac. R. Co. v. Tex. & P. R. Co., 31 Fed. 862, 4 Inters. Com. R. 434; Phillips Co. v. L. & N. R. Co., 8 Inters. Com. R. 93.

[36]

Dissimilarity created by carriers themselves.

That one of the defendants originated the competition does not require that it should not be considered, but is immaterial. A contrary construction would discourage competition, which the Interstate Commerce

Commission Act was intended to foster.-Interst. Com. Commission v. Ch. G. W. R. Co., 141 Fed. 1003.

Carriers cannot create the conditions by which they seek to justify their rates. Mayor of Tifton v. L. & N. R. Co., 9 Inters. Com. R. 160. Carriers cannot create dissimilarity of conditions of competition simply by agreeing to compete at one point, and not to compete at the other.- Holdzkom v. Mich. Cent. R. Co., 9 Inters. Com. R. 42.

A railroad must not create a disability for the sake of obtaining a differential.-The Canadian Pac. Pass. Differentials, 8 Inters. Com. R. 71.

Differences in circumstances and conditions of transportation that are of the carrier's own creation or connivance, or which it might have avoided by reasonable effort, do not justify inequalities in rates.- Rice v. W. N. Y. & P. R. Co., 1 Inters. Com. R. 717, 792, 795, 811, 2 Inters. Com. R. 298, 4 I. C. C. R. 131.

A carrier cannot create artificial differences in market conditions, by an arbitrary differential in rates, whereby the products of different sections may be arbitrarily assigned to particular markets.- Southern R. Co. v. Atlanta Stove Works, 128 Ga. 207, 57 S. E. 429.

[37]

Whether competition may be considered.

See, also, post, § 32, note [10].

Competition as justifying violations of long and short haul rule,— see post, § 36, notes, [31]-[35].

In fixing their rates carriers may take into account competition by other carriers, provided only that the competition is genuine and not a pretense.- Interstate Com. Commission v. Ch. G. W. R. Co., 209 U. S. 108, 28 Sup. Ct. R. (U. S.) 493, affg. s. c. 141 Fed. 1003.

Competition which affects rates and routes of traffic is a factor in determining whether conditions are similar and a rate is discriminative. If a dissimilarity exists, the question remains whether it is so great as to justify the discrimination alleged.- East Tennessee, V. & G. R. Co. v. Interst. Com. Commission, 181 U. S. 1, 21 Sup. Ct. R. (U. S.) 516, revg. s. c. 99 Fed. 52.

Competition between rival lines is not a factor to be considered in applying Interst. Com. Act, § 2. The phrase "under substantially similar circumstances and conditions," as used in this section, does not include competition between rival routes but only the circumstances of carriage.- Interst. Com. Commission v. Ala. Mid. R. Co., 168 U. S. 144, 18 Sup. Ct. R. (U. S.) 45, affg. s. c. 74 Fed. 715, 69 Fed. 227.

For a carrier to protect himself against the physical disadvantages it is under, in competition with its rivals, is not an unlawful discrimination, if it be not used as a colorable device to evade the statute.—

Detroit, G. H. & M. R. Co. v. Interst. Com. Commission, 74 Fed. 803, revg. s. c. 57 Fed. 1005, affd; affd. 167 U. S. 633, 17 Sup. Ct. R. (U. S.) 986.

That a lower rate is charged from a more distant point by reason of competition between routes is one of the "circumstances and conditions" which may be considered, under Interst. Com. Act, §§ 2, 3.- Interst. Com. Commission v. L. & N. R. Co., 73 Fed. 409.

"Commercial necessity" should be taken into account in determining whether rates are discriminatory.— State v. Minneapolis & St. L. R. Co., 0 Minn. 191, 83 N. W. 60; affd. 186 U. S. 257, 22 Sup. Ct. R. (U. S.) 900.

Access to a competing route may be considered in deciding whether a lower rate to the shipper who has it, is an undue preference.- Phipps v. London & N. W. R. Co., 1892, 2 Q. B. D. 229.

The competition of one transportation line cannot be said to meet that of another, for the carriage of traffic from any particular locality, unless the one line could perform the service if the other did not.— Behlmer v. L. & N. R. Co., 83 Fed. 898, revg. s. c. 71 Fed. 835; revd. on other grounds, 175 U. S. 648.

When, a few years ago, the railroad rates to Montgomery were higher than they now are, actual and active water-route competition by the Alabama River forced rail rates down to the level of the lowest practicable water rates. The volume of shipment is now very small.— Held, that the potential controlling influence of the water route remains in full force, and must ever remain in force as long as the river is navigable to its present capacity.-Interst. Com. Commission v. Ala. Mid. R. Co., 74 Fed. 715, affg. s. c. 69 Fed. 227; affd. 168 U. S. 144, 18 Sup. Ct. R. (U. S.) 45.

Actual competition does not exist between carriers except where the traffic for which they compete would be taken by one of them if the other were not in the field; and such competition can be controlling at a given point only to the extent that either is in a position to do the entire business if the others were unable or unwilling to engage in it.― Board of Trade of Chattanooga v. E. Tenn. V. & G. R. Co., 2 Inters. Com. R. 798, 3 Interst. Com. R. 106, 213, 5 I. C. C. R. 546.

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What competition justifies disparities in rates. Where a less rate is given for a long than for a short haul on the ground that competition exists at the point farthest distant, the mere fact that the rates to the nearer points are greater will not make them unreasonable and unjust under Interst. Com. Act, § 1.- Interst. Com. Commission v. Western & A. R. Co., 88 Fed. 186; affd. 93 Fed. 83.

Competition consisting of or created by departures from published schedules does not justify disparities in rates.- Matter of Proposed Advances in Freight Rates, 9 Inters. Com. R. 382.

When competition is offered as an excuse for discriminative rates, the Interstate Commerce Commission will inquire whether it is legitimate competition, or whether due to the peculiar strength of the shippers and their power and ability to secure unusual concessions by playing one road against the other.- Matter of Proposed Advances in Freight Rates, 9 Interst. Com. R. 382.

Competition by an extremely roundabout route ought not to be encouraged, and is not necessarily such competition as justifies disparities in rates.- Holdzkom v. Mich. Cent. R. Co., 9 Inters. Com. R. 52.

Where it is claimed that a low rate on a particular commodity is justified by water competition, it may be shown in rebuttal that this commodity is never in fact transported by water between the points in question.- Holdzkom v. Mich. Cent. R. Co., 9 Inters. Com. R. 42.

That the carriers have made one of two cities a basing point does not justify giving competition its natural effect on rates at such basing point and not at the other city.- Brewer v. L. & N. R. Co., 7 Inters. Com. R. 224.

Competition of carriers, competition of markets, differences in volume of traffic or cost of handling it, etc., do not defeat substantially similarity of circumstances and conditions.- Railroad Commission of Ga. v. Clyde Ss. Co., 4 Inters. Com. R. 120, 5 I. C. C. R. 324.

[40]

Extent to which competition justifies.

The rate on lumber shipped to points on the New York and Long Branch Railroad was computed by adding to the New York city rate, five cents per cwt. on shipments from Saginaw, Mich., and two cents per cwt. on shipments from Buffalo, N. Y. This was attempted to be justified on the ground of water competition between Buffalo and New York City.- Held, that the effect of the water competition is exhausted when the lumber reaches New York city, and can justfy no wider difference in rate than exists at New York city itself.- Mershon v. Central R. Co. of N. J., 10 Inters. Com. R. 456.

A railroad rate so low as to drive water transportation out of existence cannot be justified by showing the existence of a waterway which might carry the traffic. Water competition may justify rates which meet, not extinguish, such competition.- Brewer v. L. & N. R. Co., 7 Inters. Com. R. 224.

Water competition cannot justify rates highly unremunerative or grossly excessive.- Rice v. Cincinnati, W. & B. R. Co., 3 Inters. Com. R. 841, 5 I. C. C. R. 193.

Even to meet water or rail competition rates cannot be reduced to cost.- Lehmann v. So. Pac. R. Co., 2 Inters. Com. R. 548, 3 Inters. Com. R. 80, 4 I. C. C. R. 1.

[41]

Contemporaneous shipments mean those in progress at the same time.- Hilton L. Co. v. Atlantic C. L. R. Co., 141 N. C. 171, 53 S. E. 823.

[42]

Need of revenue by carrier as justification.

Financial necessity as justifying violations of long and short haul rule,- see post, § 36, note [27].

A carrier may not plead its need for additional revenue as justifying an advance in rates on a commodity, where such advance was made by concerted action of various carriers and under circumstances not warranting an advance.- National Hay Assn. v. L. S. & M. S. R. Co., 9 Inters. Com. R. 264.

Even where the need of additional revenue is apparent the carrier cannot arbitrarily select some one or more articles on which to apply higher rates, regardless of the relation which such article or articles bear to other commodities commonly offered for transportation.- National Hay Assn. v. L. S. & M. S. R. Co., 9 Inters. Com. R. 264.

Neither competition nor the need of greater revenue can operate to justify such unjust discrimination as is evidenced by a through rate on traffic from a competing locality higher than the combination of separately established charges to and from another competing locality on the direct through line.- Hilton L. Co. v. Wilmington & W. R. Co., 9 Inters. Com. R. 17.

A carrier has not the right to do an unlawful act merely because it needs the revenue.- Danville v. So. R. Co., 8 Inters. Com. R. 571.

[43]

Cost or value of article carried as justification. Difference in bulk or value of goods carried as justifying violation of long and short haul rule,- see post, § 36, note [25].

That it costs one shipper more to manufacture his product than it does his competitor does not justify discrimination in rates.- Phillips Co. v. Grand Trunk W. R. Co., 11 Inters. Com. R. 659.

It is not discrimination to charge the same rate on second-hand dynamos consigned to a repair shop as on new dynamos.- National M. & W. Co. v. P. C. C. & St. L. R. Co., 11 Inters. Com. R. 581.

Trifling differences of cost or character do not justify disparity of charges; but where the differences are substantial, either in the work