Their being assigned to separate cars is not unlawul, if cars and accommodations equal in all respects are furnished to both, and the same care and protection observed."

1 Sanger v. Southern Pacific Co. 5 Inter. Com. C. 134.

2

Ottinger v. Southern Pacific R. R. Co. 1 Inter. Com. C. 144.

3 Ex parte Koehler, 31 Fed. Rep. 315; Section 22 of the act, infra.

4 Slater v. Northern Pacific R'y Co. 2 Inter. Com. C. 359.

5 Pa. Const. (1874), Art. XVII, § 8.

6 Stimson's Am. Stat. Law (1886), 464; Mo. Const. (1875) Art. XII, § 24; Ark. Const. (1874) Art XVII, §7; Cal. Const. (1873) Art. XII, § 19; Ala. Const. (1875) Ait. XIV. § 23. In Missouri and California to accept a pass works a forfeiture of the office.

7 Heard v. Georgia R. R. Co. 1 Inter. Com. C. 428; Council v. Western & Atlantic R. R. Co. 1 Inter. Com. C. 339; Louisville. N. O. & Tex. Co. v. Stute (Miss. 1889), 2 Inter. Com. C. 615.

1040. Obligation of railway company to supply suitable and sufficient cars.-It is a common-law and charter duty, of every railway subject to the act, to furnish proper car equipment for all the reasonable needs of the business it undertakes to do, and if it fails to do this, to the injury of the shipper, it is liable in damages therefor. The public has not undertaken to divide responsibility with the carrier in this respect. The law does not forbid a railway from obtaining cars for use upon its own line from other carriers, or carfurnishing companies, but the rates of freight must be the same as they would be if such cars were owned by the railway using them. A railway company may also obtain cars from a shipper; in such case, the shipper must not be allowed a different rate than that charged to others for the same service, but he is entitled to a proper rent for the use of his cars. The terms upon which rollingstock may be provided by shippers ought to be

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uniform, and be published with the rate sheets; they cannot be the subject of bargain, resulting in varying rates to different shippers. A railroad company may make one rate to carry cattle, and a lower rate merely to furnish cars, and allow the owner to take charge of them.5 If, for any reason, a railroad company cannot meet all calls for cars, it should furnish them ratably and fairly to all shippers, in proportion to the freights offered by them; regular patrons are not entitled to preference. It is the duty of the shipper to ascertain, by inquiry of the proper agent of a railroad, whether he can obtain cars for the shipment of his freight, but if a railroad takes upon itself to give such information and notice to some shippers, it is its duty to give it to all." Where a railroad company had a contract with a transportation company, by which the latter company furnished it with livestock cars, which were more useful than ordinary stock cars in that they could be converted into coal cars when not in use as stock cars, the railroad company paying mileage for their use, and holding them available to all shippers of stock, it was held, on an application for mandamus to compel the railroad to ship relator's stock in such cars, that its refusal to carry the stock therein at the same rate as for ordinary cars was not an unjust discrimination in favor of the transportation company, as the circumstances and conditions were not substantially similar. Oil tanks affixed to car bodies are looked upon as parts of the cars; the charge for oil transported in them should be the same per hundred pounds as for oil carried in barrels." Where it was shown that shipment of oil in barrels was danger

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ous, and that when the shipment was in tanks there was greater probability of obtaining return loads, the Commission equalized the difference in rates, which was considerable, but permitted a charge for the weight of the barrels.10 A railroad company which transports immigrants in unfit cars will be required to provide better accommodations, and to ascertain their fitness, the Commission will make its own inspection." A statute imposing a penalty for "extortion or unjust discrimination by railway companies as common carriers, does not include a failure or a refusal to supply cars, or to carry freight.2

1 Scofield v. Lake Shore & Mich. S. R'y Co. 2 Inter. Com. C. 92. And see Rice v. Louisville & N. R. R. Co. 1 Inter. Com. C. 503.

2 Scofield v. Lake Shore & Mich. S. R'y Co. 2 Inter. Com. C. 92.

3 Scofield v. Lake Shore & Mich. S. R'y Co. 2 Inter. Com. C. 92.

4 Rice v. Louisville & N. R. R. Co. 1 Inter. Com. C. 503.

5 Kimball v. Rutland R. R. 26 Vt. 249; Manchester etc. R'y Co. v. Brown, Law R. 8 App. Cas. (H. L.) 703.

6 Riddle, Dean & Co. v. Pittsburg & L. E. R. R. Co. 1 Inter. Com. C. 374.

7 Riddle, Dean & Co. v. Baltimore & O. R. R. Co. 1 Inter. Com. C. 608. 8 United States v. Delaware L. & W. R. R. Co. 40 Fed. Rep. 101 (1839). See, also, Burton Stock Car Co. v. Chicago, B. & Q. R. R. Co. 1 Inter. Com. C. 132.

9 Rice v. Louisville & N. R. R. Co. 1 Inter. Com. C. 503.

10 In re Relative Tank and Barrel Rates on Oil, 2 Inter. Com. C. 365. 11 Savery & Co. v. New York Central & H. R. R. Co. et al. 2 Inter. Com. C. 338.

12 Bond v. Wabash S. L. etc. R'y Co. 67 Iowa, 712.

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1854; the English decisions are therefore of peculiar value in elucidating its provisions. A somewhat similar provision in the constitution of Colorado has been held to impose no greater obligation on a railroad company than that resting upon it by the common law. What amounts to an undue preference is a question of fact and not of law." In determining whether a preference shown by a railway company to one of its customers is undue or unreasonable, regard should be had to the benefit and convenience of the public, and also to the convenience of the railway company with reference to its general traffic. This section forbids giving different rates to places named and those not named; to manufactured articles named and those not named; to jobbers at places named and those not named; to manufacturers and to jobbers and other dealers. Distance is only one of the factors, and other material facts, such as character and quality of the commodity, cost of production, extent and nature of the competition in the business itself and by other transportation lines, and the interests of the public in the use of the commodity and its market cost, are to be considered. Every one has a right to the natural advantages which arise from the proximity of his land to a railway, and a railway company is not justified in depriving him of it, by allowing to another not so favorably situated the expense incurred in connecting his place with the railway." (1) "Any undue or unreasonable preference or advantage," within the meaning of this section, includes every form of unjust discrimination, not only in rates, (2) but also in the conveniences and facilities rupplied to shippers in any