That a railway cannot earn a proper return without discriminating, does not justify such discrimination.— Brewer v. L. & N. R. Co., 7 Inters. Com. R. 224.

A railroad may lawfully charge lower rates on coal in the summer months to keep its coal cars and their crews employed during that season of the year, provided such summer rates are bona fide, and offered to all persons on equal terms.- Interst. Com. Commission v. L. & N. R. Co., 73 Fed. 409.

[52]

·Effect of investments and expenditures by shippers. Continuance of discriminative rates cannot be required or excused on the ground that parties have made investments and built up a business relying on assurances from the carriers that such rates would be maintained.-Potter Mfg. Co. v. Ch. & G. T. R. Co., 4 Inters. Com. R. 223, 5 I. C. C. R. 514.

The expenditure of large sums by the lessees of colleries for tramways to connect them with a railway does not justify the latter in carrying their coal for less than is charged other colleries.— Harris v. Cockermouth R. Co., 3 C. B. (N. S.) 693.

Favoritism to shippers is not unlawful, if pursuant to the orders of the military authorities in charge of the road.- Illinois Cent. R. Co. v. Ashmead, 58 Ill. 487.

That they are made pursuant to long-standing agreements with the favored shippers does not excuse undue discrimination.- Red Rock F. Co. v. B. & O. R. Co., 11 Inters. Com. R. 438.

Where the movement in a certain direction is greatly in excess of the movement in another, or where there is a substantial difference in the cost of operation by reason of heavy grades, or because the tonnage runs largely in one direction, it is conceivable that a discrimination in rates may not be unreasonable.- Interst. Com. Commission v. L. & N. R. Co., 118 Fed. 613.

Disparities in rates for equal distances east and west-bound may be so great as to constitute discrimination.- Menasha W. W. Co. v. A. T. & S. F. R. Co., 11 Inters. Com. R. 666.

Disparity in rates on eastbound and westbound traffic is justified by the conditions resulting from the empty-car movement in one direction.Phillips Co. v. Grand Trunk W. R. Co., 11 Inters. Com. R. 659.

It is not a violation of law to charge a greater passenger rate in one direction on certain trains than is charged in the other direction on all trains.- Hewins v. N. Y. N. H. & H. R. Co., 10 Inters. Com. R. 221.

A higher rate from Boston to Janesville, Wis., than from Janesville to Boston, is not necessarily discriminative.-Macloon v. Boston & M. R. Co., 9 Inters. Com. R. 642.

Discrimination between east and westbound traffic is unlawful.Kindel v. A. T. & S. F. R. Co., 8 Inters. Com. R. 608.

The fact that a rate over a road in one direction is less than the rate on the same class of traffic in the opposite direction does not, as in cases of hauls in the same direction, establish prima facie the unreasonableness of the higher rate.- Duncan v. A. T. & S. F. R. Co., 6 Inters. Com. R. 85.

Unjust discrimination may consist of charging different rates for hauling like freight equal distances in different directions from a junetion point.- Blair v. Sioux C. & P. R. Co., 109 Iowa, 369, 80 N. W. 673.

[56] Discriminative contracts unlawful.

Contracts for carriage at less than published rates unlawful,- see post, § 33, note [6].

A contract to carry at a special rate is not an unjust discrimination in the absence of clear proof that it is an exclusive privilege.- Bayles v. Kan. Pac. R. Co., 13 Colo. 181, 22 Pac. 341, 5 L. R. A. 480.

A rebate and rebate contract are unlawful.- Indianapolis, D. & S. R. Co. v. Ervin, 118 Ill. 250, 8 N. E. 862, disapproving Toledo W. & W. R. Co. v. Elliot, 76 Ill. 67, and Erie & P. Dispatch v. Cecil, 112 Ill. 180, which held rebates lawful.

A contract whereby a carrier agrees to carry the goods of one person at a less rate than those of any other person is illegal.- Messenger v. Pa. R. Co., 36 N. J. L. 407, 37 N. J. L. 531.

[57] Passenger tickets.

Party rate tickets must be available to all persons,- see post, § 33, note [20].

Issuance of party rate tickets not unjust discrimination,- see post, § 33, note [20].

Party-rate tickets cannot be limited to particular classes of persons, but must be open to the whole public alike.- In the Matter of Party Rate Tickets, 12 Inters. Com. R. 110.

When a railroad company makes a reduction from its regular rates, which are not found unreasonable, it may require that the person desiring to avail himself of that reduction shall purchase a ticket and it may collect of all persons not holding such special ticket the reasonable ordinary fare.- Cist v. Mich. Cent. R. Co., 10 Inters. Com. R. 217.

The issuance of mileage, excursion and commutation tickets is lawful, and except as otherwise directed by the Interstate Commerce Commission, they are exempt from the general rules of the statute.- Sprigg v. B. & O. R. Co., 8 Inters. Com. R. 443.

Discontinuance of the sale of commutation tickets is not necessarily unlawful, under Interst. Com. Act, §§ 3, 22.- Sprigg v. B. & O. R. Co., 8 Inters. Com. R. 443.

There is no unjust discrimination, within the meaning of Interst. Com. Act, § 3, when a carrier gives an excursion rate upon one occasion and refuses to give such a rate upon a similar occasion occurring thereafter.- Cator v. So. Pac. Co., 6 Inters. Com. R. 113.

Where the carrier has announced in its published schedules that it would do so, it does not unjustly discriminate by collecting 25 cents extra fare from a passenger on the train without a ticket.- Sidman v. Richmond & D. R. Co., 2 Inters. Com. R. 766, 3 I. C. C. R. 473.

Party rates less than the contemporaneous rates for single passengers constitute discrimination.— Pittsburg, C. & St. L. R. Co. v. B. & 0. R. Co., 2 Inters. Com. R. 572, 729, 3 I. C. C. R. 465.

"Settlers' tickets" are discriminative, if they give a rate lower than that charged other passengers enjoying the same accommodations, and they are not justified by a desire to build up new country or the carrier's future business.- Smith v. No. Pac. R. Co., 1 Inters. Com. R. 611, 1 I. C. C. R. 208.

A railroad cannot sell mileage books at a lower price to commercial travellers than to the general public.- Larrison v. Ch. & G. T. R. Co., 1 Inters. Com. R. 369, 1 I. C. C. R. 147.

Under L. 1857, ch. 228, providing that ticket offices should be kept open one hour before the departure of each passenger train from a station during certain hours and that in case a passenger failed to procure a ticket at a station where the ticket office was established and open, an additional fare of five cents might be charged, a railroad cannot collect such five cents in addition to the regular rate prescribed by law from a passenger who took a train at an hour when the office was not required to be and was not open.- Nellis v. N. Y. C. R. Co., 30 N. Y. 505.

The extra charge of five cents which the law allowed from a passenger without a ticket could be collected only when the ticket office was open at the station where the passenger got on, and at that time, even though this was midnight, and the company had no legal duty to keep its ticket

offices open after 9 p. m.- Held, that the statutory penalty could be collected by the passenger for an extra charge under these circumstances.Chase v. N. Y. C. R. Co., 26 N. Y. 523.

A railroad may charge extra fare for passengers not purchasing tickets at station.- Chicago, B. & Q. R. Co. v. Parks, 18 Ill. 460.

A common carrier is not bound to establish commutation rates for a particular locality.- State ex rel. Atwater v. D. L. & W. R. Co., 48 N. J. L. 55, 2 Atl. 803.

A carrier may establish commutation rates in and for one locality and refrain from establishing such rates in another.- State ex rel. Atwater v. D. L. & W. R. Co., 48 N. J. L. 55, 2 Atl. 803.

If a railroad has established commutation rates, it is unjust discrimination for it to refuse to sell such a ticket to a particular individual, upon the same conditions as to the rest of the public.- State ex rel. Atwater v. D. L. & W. R. Co., 48 N. J. L. 55, 2 Atl. 803.

A carrier may charge a reasonable amount more when the fare is paid on the train, instead of a ticket purchased at the station.- Cincinnati, S. & C. R. Co. v. Skillman, 39 Oh. St. 444.

[58] Issuance of passes.

Lawfulness of issuance of passes,- see post, § 33, note [11]. Prosecution for giving free transportation,- see post, § 33, note [17]. Passes were given by a railroad to persons not belonging to any of the excepted classes mentioned in Interst. Com. Act, § 22. It has been held that such an act constitutes an unjust discrimination.-In re Charge to Grand Jury, 66 Fed. 146.

[59] Commodity rates.

Denying commodity rates to hay but giving such rates to apparently all other commodities which come to the carriers in aggregate volume or tonnage equal to that of hay, is a discrimination.- National Hay Assn. v. L. S. & M. S. R. Co., 9 Inters. Com. R. 264.

Carriers may make commodity class rates and special class rates to meet special conditions along their lines.-N. Y. Board of Trade v. Pa. R. Co., 2 Inters. Com. R. 660, 734, 755, 800, 4 I. C. C. R. 447.

[60] Arbitraries and differentials.

On shipments from Chicago to Mount Holly, N. J., the New York City rate was given, while on shipments to Pemberton, N. J., six miles further on, the New York rate plus an arbitrary of five cents per hundred pounds was charged.- Held, that the rate to Pemberton was unrea

sonable as compared with that to Mount Holly and the difference between such rates should be reduced to two cents per hundred pounds.- De Cou v. Pa. R. Co., 12 Inters. Com. R. 186.

An arbitrary rule which prevents mills not located on defendant's lines from selling at points on those lines is unlawful.- Blackwell M. & E. Co. v. Mo. K. & T. R. Co., 12 Inters. Com. R. 25.

More than doubling the differential on corn meal while the same differential on hominy grits and bran is left unchanged, is discriminative.— Matter of Rates on Corn & Corn Products, 11 Inters. Com. R. 220.

A differential of more than five cents on corn products above the rate on corn is discriminative.— Matter of Rates on Corn & Corn Products, 11 Inters. Com. R. 212.

In the adjustment of differentials, no marked advantages should be given, certainly not by the creation of artificial conditions, to one locality as compared with another.- In the Matter of Differential Rates, 11 Inters. Com. R. 13.

Differentials between different ports should be adjusted, so far as possible, so that competitive traffic will be fairly distributed between the different lines of railway which serve these ports. No marked advantage should be given, certainly not by the creation of artificial conditions, to any one port over the other. The ideal condition would be the establishment of such rates that enterprise at either port in the way of improvement in service or facilities might be rewarded by increased business and that there might exist that healthy struggle of locality against locality which is the best security for proper commercial development. In the Matter of Differential Rates, 11 Inters. Com. R. 13.

The differential between carload and less than carload shipments may properly vary with the locality and the circumstances.- Business Men's League v. A. T. & S. F. R. Co., 9 Inters. Com. R. 318.

A differential against corn meal as compared with corn, not based on cost of service, difference in value, greater liability to injury, etc., is an unjust discrimination.— Board of R. R. Comrs. v. A. T. & S. F. R. Co., 8 Inters. Com. R. 304.

Railroads may not, by arbitrary differentials, create artificial market conditions whereby two localities are prevented from profitably competing with each other in the same market, but the products of each are diverted to a different market.- Export Rates from Points E. & W. of Miss. River, 8 Inters. Com. R. 185.

Arbitrary differentials are not justified by a purpose of the carrier to make the raising of corn profitable by preventing rival sections of corn producers from competing in the same market.- Export Rates from Points E. & W. of Miss. River. 8 Inters. Com. R. 185.