consolidation of railway companies." Frazier v. East Tennessee V. & G. R. Co., 88 Tenn. 138, 40 Am. & Eng. R. Cas. 358. Where the title of an act is "An act to provide for the incorporation of railroad companies" a provision therein for the individual liability of stockholders in such companies as may be organized under the law is " matter properly connected therewith," and the act embraces but one subject which is expressed in the title, within the meaning of the constitutional provision. Shipley v. City of Terre Haute, 74 Ind. 297, 4 Am. & Eng. R. Cas. 345. Where the subject expressed in the title of a statute is the provision of "a means for the collection of claims for cattle and other stock destroyed by railroad," and the body of the statute declares or creates an absolute liability which did not exist prior to its passage, such new liability is not within the subject expressed in the title, and to this extent the statute is inoperative under section 14 of article 4 of the Florida Constitution. Savannah, F. & W. R. Co. v. Geiger, 21 Fla. 669, 29 Am. & Eng. R. Cas. 274. A statute providing that the guards at farm crossings shall, in the absence of an agreement or contract to the contrary, be constructed, maintained and kept closed by the owner of the farm crossing, may be competently inserted in a statute entitled "An act requiring railroad corporations and other persons operating and controlling lands to fence their right of way or railroad track, and to construct barriers and cattle guards at certain public roads and highway crossings and keep the same in repair, prescribing remedies and penalties for failure to do so." Hunt v. Lake Shore & M. C. R. Co., 112 Ind. 69, 35 Am. & Eng. R. Cas. 176. An act entitled “An act to revise the laws providing for the incorporation of railroad companies, and to regulate the running and management and to fix the duties and liabilities of all railroad and other corporations owning or operating any railroad in this state," is not unconstitutional, on the ground that the title provides for more than one object, its object being to bring together the legislation concerning the creation and management of railroads. Toledo, A. A. & G. T. R. Co. v. Dunlap, 47 Mich. 456, 5 Am. & Eng. R. Cas. 378. An act entitled "An act to amend the charter of the C. & St. L. R. Co.,' may embrace provisions legalizing certain invalid municipal elections previously held for the purpose of voting subscriptions to railway stock. Jonesboro v. Cairo & St. L. R. Co., 110 U. S. 192, 15 Am. & Eng. R. Cas. 615. The fourth section of the Ill. Act approved March 4, 1869, entitled "An act to incorporate the Dixon & Quincy R. R. Co.," assumed to confer on townships power to subscribe to the capital stock of or to make donations to said company, and provided for elections to decide as to such subscriptions or donations, for taxation for the payment of the same if voted, and for the issue of bonds to represent the same, etc. It was held that section did not cover and embrace a subject not expressed in the title of the act. Town of Abbington v. Cabeen, 106 Ill. 200, 12 Am. & Eng. R. Cas. 581. The powers, however valid and extended which a new township may exercise constitute but one object which is fairly expressed by a title showing nothing more than the legislative purpose to establish such township, and such statute may constitutionally authorize a town to subscribe to the stock of the railroad company, and to issue bonds therefor and to levy taxes to pay for the same. Township of Montclair v. Ramsdell, 107 U. S. 147, 12 Am. & Eng. R. Cas. 689. A section providing for the giving of danger signals, and for the equipment of railroad cars, is embraced in the title of an ordinance entitled "An ordinance to regulate the speed within the city limits of cars and locomotives propelled by steam." Bergman v. St. Louis, 1. M. & S. R. Co., 88 Mo. 678; 28 Am. & Eng. R. Cas. 588.

And see further as to the Sufficiency of the Title of an Act of the Legislature, note, 12 Am. & Eng. R. Cas. 585; note, 5 Am. & Eng. R. Cas. 387.

INTERSTATE COMMERCE COMMISSION

ข.

TEXAS & PACIFIC R. Co.

(U. S. Circuit Court, S. D. New York, October 5, 1892.)

Interstate Commerce Act-Order of Commission-Connecting Lines.-If a railroad company is violating a proper order of the Interstate Commerce Commission, it cannot escape being restrained from doing so upon the ground that a connecting carrier, participating with it in the wrong doing, is not proceeded against.

Same-Discrimination in Rates-Competing Lines. A carrier cannot justify a discrimination in rates in violation of the Interstate Commerce Act (in this case the carrying of imported traffic shipped from foreign ports upon through bills of lading at lower rates than inland traffic) merely upon the ground that unless it is given the traffic thus obtained it would go to a competing carrier.

Edward Mitchell, U. S. District Attorney, Simon Sterne and John D. Kernan, for Commission.

John F. Dillon and Winslow S. Pierce, for defendant.

Case stated.

WALLACE, J.-This is an application to enforce an order of the interstate commerce commission, made January 29th, 1891, in a proceeding instituted by the New York Board of Trade and Transportation. The petition in that proceeding complained of unjust discrimination made by various railway carriers. The defendant was duly notified of the complaint and appeared in the proceedings and submitted its rights. It was shown to the commission, as appeared by the findings of fact in their report, that the defendant, in conjunction with the Southern Pacific Company, made joint rates from New Orleans to San Francisco covering carriage of traffic by the rails of the defendant from New Orleans to El Paso and thence by the rails of the Southern Pacific Company to San Francisco; and also made joint rates with vessel owners in London and Liverpool covering carriage of traffic from those places to San Francisco via New Orleans. It was also shown that the ordinary tariff rates charged by the two companies upon traffic delivered to the defendant at New Orleans and shipped at New York, Chicago and other places in this country for carriage from New Orleans to San Francisco, were somewhat more than double the rates charged for carriage of similar traffic sent from Liverpool or London by through bill of lading to San Francisco via New Orleans. 51 A. & E. R. Cas.-3.

To illustrate, it was shown that the rates made by the two companies, in conjunction with Liverpool vessel owners, by through bills of lading from Liverpool to San Francisco by the rails of the defendant from New Orleans to El Paso, were per hundred pounds on books, on carpets and on cutlery $1.07, while the regular tariff rates of the two companies upon the articles when sent to New Orleans from other places in this country per hundred pounds on books $2.04, on carpets $2.88, and on cutlery $3.26, and that the rates on these articles when shipped from Liverpool were 80 cents per hundred pounds for carriage from New Orleans to San Francisco. The defendant contended that it was justified in making the discrimination between the foreign and domestic traffic because owing to the competition of sailing vessels and foreign carriers between Liverpool and San Francisco it could not get any appreciable amount of foreign traffic without meeting the competitive rates by making the rates given. The commission while stating the facts to be as asserted by the defendant ruled against the validity of the excuse and made an order which in substance required the defendant to desist from carrying any article of imported traffic shipped from any foreign port upon through bills of lading destined to any place within the United States at any other than the same rates established by the inland tariff of the defendant for the carriage of other like kind of traffic. It is admitted by the answer of the defendant that since the order of the commission was made it has maintained a substantially similar disparity in its transportation rates for these articles as well as in those for the transportation of numerous other articles depending upon the foreign or domestic origin of the shipment. The defendant insists that its action in this regard is not prohibited by the provisions of the Interstate Commerce Act, and that as it has not been guilty of any unjust discrimination within the meaning of that act, the order of the commission. ought not to be enforced. It also insists that the proceeding is defective because the Southern Pacific Company is not made a party to the defense.

Effect of failure to proceed against

If the order made by the commission was a lawful one I see no reason why the defendant should not be compelled to obey it, notwithstanding the Southern Pacific Railway Company is not at present pursued. If the defendant is violating a proper order of the commission it should be restrained from doing so and it cannot escape upon the objection that another wrong-doer is also violating it. The real question, as it seems to me, is whether the existence of the peculiar facts which were relied upon before the commission by the defendant, as an excuse for this discrimination, justifies its conduct.

So. Pac.

It must be conceded as true, for the purpose of the present case, that the rates for the transportation of traffic from Liverpool and London to San Francisco are in effect fixed

of foreign

traffic is

and controlled by the competition of sailing vessels Discriminabetween those ports and also by the competition tion in favor of steamships and sailing vessels in connection with railroads across the Isthmus of Panama, none of illegal, which are in any respect subject to the Act to Regulate Commerce. It must also be conceded that the favorable rates given to the foreign traffic are, for reasons to which it is now unnecessary to revert, somewhat remunerative to the defendant; and it must also be conceded that the defendant would lose the foreign traffic by reason of the competition referred to and the revenue derived therefrom unless it carries it at the lower rates and by doing so is enabled to get a part of it which would otherwise go from London and Liverpool to San Francisco around the Horn or by the Isthmus of Panama. The case presents a question of much interest and importance to the defendant and carriers similarly situated, and also to our own merchants and manufacturers who in supplying the wants of consumers at places within the United States, have to meet the competition of foreign merchants and manufacturers and are placed at a serious disadvantage if they are compelled by the railway carriers to pay higher rates of transportation upon their goods. The question does not, however, seem to be such a doubtful one as to require more than a brief statement of the conclusions reached. The second section of the Interstate Commerce Act prohibits unjust discrimination and declares that the common carrier charging a greater or less compensation for any services rendered in the transportation of passengers or property than it charges any other person for doing a like and contemporaneous service in the transportation of a "like kind of traffic under substantially similar circumstances and conditions," shall be deemed guilty of unjust discrimination. The third section provides that it shall be unlawful for the carrier to make or give any undue or unreasonable preference or advantage to any particular description of traffic in any respect whatsoever, or to subject any particular person or locality or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. The third section is substantially taken from the second section of the English Act of Parliament known as the Railway and Canal Traffic Act of 1854.

Either section is sufficiently comprehensive in its terms to prohibit an interstate carrier from making an unfair discrimination between different shipments in charges for a like and

contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions. But neither section is intended to prohibit all discriminations or preferences. In considering whether an undue discrimination has been made, the fair interests of the carrier are to be taken into account, and although lower rates are given to one shipper or class of shippers than to another for carrying the same kind of traffic the latter have no just ground of complaint of discrimination if the advantages of the service enable the carrier to take the traffic of the former at a less cost; nor is the discrimination unjust if made comformably to some agreement by which the favored shipper gives the carrier an adequate consideration for the reduced rates. Upon this principle it was decided not to be an unjust preference under the English Act for a railway company to carry at a lower rate, in consideration of a guarantee of large quantities and fuil train loads at regular periods, provided the real object of the company was to obtain thereby a greater remunerative profit by the diminished cost of carriage, although the effect might be to exclude from the lower rate these shippers who could not give such guarantee. Nicholson v. Great Western R. Co., 4 C. B. (N. S.) 366. The discrimination between different shippers is a lawful one if it is such as the carrier may fairly give because of the difference in cost, expense or the exceptional character of the service. U. S. v. Delaware L. & W. R. Co., 40 Fed. Rep. 109, 40 Am. & Eng. R. Cas. 36.

Prior to the enactment of the Interstate Commerce Act the courts were of the opinion that discriminations by railway carriers in the rates of freight charged to shippers based solely on the ground of the quantity of the freight shipped, without reference to any advantages, tending to decrease the cost of transportation, were contrary to sound public policy and inconsistent with the obligations of such carriers to the public. Hays v. Pa. Co., 12 Fed. Rep. 309, 6 Am. & Eng. R. Cas. 594; Burlington Co. v. Northwestern Fuel Co., 31 Fed. Rep. 652.

It might well be that shippers would be induced to increase their traffic with a carrier by the offer of such discrimination, perhaps by withdrawing part of it from a rival carrier, perhaps by stimulating the shipper to enlarge his business operations and thus the discrimination might be profitable to the carrier. The English Courts, in cases arising under the English Traffic Act, have held that preferences given to particular shippers to induce them not to divert traffic from the carrier or to induce them to transfer traffic to one carrier which otherwise would go to another, are unlawful