cific Railway Company. In that case it appeared that the plaintiffs, who were shippers of cattle, were charged by the defendant from three to ten dollars per carload of cattle shipped more than the charges made to certain favored shippers who were given a secret rebate. The court held that the railroad must make reparation for this wrong by refunding these overpayments thus extorted. The course of reasoning upon which this was done may be seen in the following extract from the opinion of Chief Justice Rothrock: "At common law a public or common carrier is bound to accept and carry for all upon being paid a reasonable compensation. The fact that the charge is less for one than another is only evidence to show that a particular charge is unreasonable. In Story on Bailments, § 508, note 3, it is said: There is nothing in the common law to hinder a carrier from carrying for favored individuals at an unreasonably low rate, or even gratis.' And in 1 Wood, Railway Law, 566, it is said: A mere discrimination in favor of a customer is not unlawful unless it is an unjust discrimination.' In volume 2, p. 95, Redfield on Railroads, the following language is used: 'It has been held in this country, where there is no statutory regulation affecting the question, that common carriers are not absolutely bound to charge all customers the same price for the same service. But as the rule is clearly established at common law that a carrier is bound by law to carry everything which is brought to him, for a reasonable sum to be paid to him for the same carriage, and not to extort what he will, it would seem to follow that he is bound to carry for all at the same price, unless there is some special reason for the distinction. For, unless this were so, the duty to carry for all would not be of much value to the public, since it would be easy for the carrier to select his own customers at will by the arbitrary discrimination in his favor. Hence, it was held at an early day that all that could be required on the part of the owner of the goods,

681 Ia. 551, 46 N. W. 749, 25 Am. St. Rep. 512, 9 L. R. A. 764 (1890).

by way of compensation, was that he should be ready and willing to pay a reasonable compensation, and to deposit the money in advance, if required. Carrying for reasonable compensation must imply that the same compensation is accepted always for the same service, else it could not be reasonable, either absolutely or relatively.' In Hutchinson on carriers, 243, after a review of the cases, it is said: 'Hence we may conclude that in this country, independently of statutory provisions, all common carriers will be held to the strictest impartiality in the conduct of their business, and that all privileges or preferences given to one customer, which are not extended to all, are in violation of public duty.' An examination of the authorities cited by these learned authors leaves no doubt that a common carrier has no right to make unreasonable charges for his services, and that he cannot lawfully make unjust discrimination between his customers."

997

715. All discrimination forbidden by the better view.

By the better view, it is submitted, the common law to-day forbids all discrimination between two applicants who ask the same service of a common carrier. This is the modern view reached after some bitter experiences with the results of discriminations by the railroads in disturbing the normal industrial order, in suppressing competition and fostering monopoly. But over thirty years ago this doctrine that there is a necessary common law rule against discrimination involved in the law defining the public duty of the common carrier was stated in a way which has never been improved upon. In the leading case of Messenger v. Pennsylvania Railroad Company Mr. Justice Beasley said in part: "Recognizing this as the settled doctrine, I am not able to see how it can be admissible for a common carrier to demand a different hire from various persons for an identical kind of service, under identical conditions. Such par

7 See 731-736, infra, and cases cited.

8

87 Vroom (36 N. J. Law) 407, 13 Am. Rep. 437, B. & W. 357 (1872).

tiality is legitimate in private business, but how can it square with the obligations of a public employment? A person having a public duty to discharge, is undoubtedly bound to exercise such office for the equal benefit of all, and therefore to permit the common carrier to charge various prices, according to the person with whom he deals, for the same services, is to forget that he owes a duty to the community. If he exacts different rates for the carriage of goods of the same kind, between the same points, he violates, as plainly, though it may be not in the same degree, the principle of public policy which, in his own. despite, converts his business into a public employment. The law that forbids him to make any discrimination in favor of the goods. of A over the goods of B, when the goods of both are tendered for carriage, must, it seems to me, necessarily forbid any discrimination with respect to the rate of pay for the carriage. I can see no reason why, under legal rules, perfect equality to all persons should be exacted in the dealings of the common carrier, except with regard to the amount of compensation for his services. The rules that the carrier shall receive all the goods tendered loses half its value, as a politic regulation, if the cost of transportation can be graduated by spécial agreement so as to favor one party at the expense of others. Nor would this defect in the law, if it existed, be remedied by the principle which compels the carrier to take a reasonable hire for his labor, because, if the rate charged by him to one person might be deemed reasonable, by charging a lesser price to another for similar services, he disturbs that equality of rights among his employers which it is the endeavor of the law to effect.”

9 See §§ 724-730, infra, and cases cited.

TOPIC B-VIEW THAT NO RULE AGAINST DISCRIMINATION

AS SUCH.

8716. Extension of the rule against unreasonable rates. As a practitioner must deal with conditions as they are, it must be recognized that in many jurisdictions there is no general principle recognized by the courts against discrimination as such. On the other hand, it can be said that the courts in these jurisdictions have stretched the requirement for reasonable charges so far that it will give protection in most instances of unjust discrimination. Some prominent cases in support of these propositions are cited in the sections which follow. It will be seen in these cases that the pressure of the growing public demand that discrimination shall be stopped has been felt by the courts, and that in those jurisdictions where the language in the earlier cases was too positive to be explained away, the most that it was possible to do was done in extending the rules to meet modern conditions.1

1 The principal cases which have held that there is no rule against discrimination as such are collected in this note for the convenience of the reader:

United States-Parsons v. Chicago & N. W. Ry., 167 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887 (1897) (semble); De Bary Baya M. L. v. Jacksonville, T. & K. W. R. R., 40 Fed. 392 (1889).

California-Cowden v. Pacific C. S. S. Co., 94 Cal. 470, 29 Pac. 873, 28 Am. St. Rep. 142, 18 L. R. A. 221 (1892).

Colorado Bayles v. Kansas Pac. R. R., 13 Colo. 181, 22 Pac. 341, 5 L. R. A. 480 (1894).

Florida-Johnson v. Pensacola & P. R. R., 16 Fla. 623, 26 Am. Rep. 731 (1878).

Illinois-Chicago, B. & Q. R. R. Co. v. Parks, 18 Ill. 464, 68 Am. Dec. 562 (1856); Indianapolis, etc., R. R. v. Davis, 32 Ill. App. 67 (1889) (semble).

Iowa--Cook v. Chicago, R. I. & Pac. Ry. Co., 81 Ia. 551, 46 N. W. 749, 25 Am. St. Rep. 512, 9 L. R. A. 764 (1890), (semble).

Massachusetts-Fitchburg R. R. v. Gage, 12 Gray, 393, B. & W. 354

(1859).

Missouri-Christie v. Missouri P. R. R., 94 Mo. 453, 7 S. W. 567 (1888),

(semble).

§ 717. No rule against discrimination as such.

It has already been pointed out that up to twenty-five years ago the prevalent doctrine was that there was no rule against discrimination as such unless it was shown that the higher charge was unreasonable. One of the frankest cases in making that distinction was Ex parte Benson & Co.,2 where the court permitted the recovery of a rebate promised to certain shippers to induce them to ship by rail rather than by river. The language of Chief Justice Simpson leaves no doubt as to his belief: "The extent of the common law rule seems to be, not that carriers shall transport for all parties at the same rate of compensation, otherwise their contracts are illegal and void, but that they shall transport at reasonable rates to all. A difference in the charge does not per se invalidate the contracts as inequitable and against public policy; but to have this effect, there must be an element of unreasonableness in the charge itself, as applied to the services rendered, between the parties to the contract and without comparison to the charges against others. Independent of statutes and provisions in their charters restricting corporations within

New Hampshire-McDuffee v. Portland & R. R. R., 52 N. H. 430, 13 Am. Rep. 72, B. & W. 149 (1873); Concord & P. R. R. v. Forsaith, 59 N. H. 122, 47 Am. Rep. 181 (1879).

New York-Killmer v. New York C. R. R., 100 N. Y. 395, 3 N. E. 293, 53 Am. Rep. 194 (1885); Root v. Long I. R. R., 114 N. Y. 300, 21 N. E. 403, 11 Am. St. Rep. 643, 4 L. R. A. 331, B. & W. 377 (1889); Lough v. Outerbridge, 143 N. Y. 271, 28 N. E. 292, 42 Am. St. Rep. 712, 25 L. R. A. 674, B. & W. 380; Parks v. Jacob Dold Packing Co., 6 Misc. 570, 27 N. Y. Supp. 289 (1894).

Pennsylvania-Audenried v. Philadelphia & R. R. R., 68 Pa. St. 370, 8 Am. Rep. 195 (1871), (semble).

South Carolina-Ex parte Benson & Co., 18 S. C. 38, 44 Am. Rep. 564 (1882); Avinger v. So. Car. R. R., 29 S. C. 265, 7 S. E. 493, 13 Am. St. Rep. 716 (1888).

Tennessee-Ragan & Buffet v. Aiken, 9 Lea (77 Tenn.), 609 (1882). Texas-Houston & T. C. Ry. v. Rust & Dinkins, 58 Tex. 98 (1882). England-Nicholson v. Gt. Western R. R., 5 C. B. N. S. 366 (1858); Stone v. Midland Ry. (1903), 1 K. B. 741 (semble).

2 18 S. C. 38, 44 Am. Rep. 564 (1882).