Rep. 92 (1892), and has since been universally followed. See Interstate Commerce Commission v. Chicago G. W. Ry., 141 Fed. 1003 (1905).

Undue preference involves comparison between the treatment given to shippers, and upon comparison a finding that one is unfairly treated. In short, any unreasonable inequality of treatment of passengers or shippers is a violation of the law. Daniels v. Chicago, R. I. & P. Ry., 6 I. C. C. Rep. 458 (1895); Page v. Delaware, L. & W. R. R., 6 I. C. C. Rep. 548 (1896); Castle v. Baltimore & O. R. R., 8 I. C. C. Rep. 333 (1899). So it is an unjust discrimination to remove a colored passenger holding a first class ticket from a first class car, to a second class car, less clean and comfortable. Passengers paying the same fare upon the same railroad train, whether white or colored, are entitled to equality of transportation in respect to the character of the cars in which they travel and the comforts and conveniences supplied. The separation of white and colored passengers paying the same fare is not unlawful, if cars and accommodations equal in all respects are furnished to both and the same care and protection of passengers observed; but by requiring one who had paid a first class fare, to ride in a half car set apart for colored passengers, with accommodations and comforts inferior to the car for white passengers in the same train who paid the same fare, and without the protection against annoyances furnished to white passengers, a railroad subjected him to undue and unreasonable prejudice and disadvantage, in violation of the act. Heard v. Georgia R. R., 1 Int. Com. Rep. 719, 1 I. C. C. 428 (1888); Council v. Western & A. R. R., 1 Int. Com. Rep. 638, 1 I. C. C. 339 (1887); Heard v. Georgia R. R., 2 Int. Com. Rep. 508, 3 I. C. C. 111 (1889).

So where a carrier refused to permit a sidetrack connection with its road to one coal mine, while permitting it to another under similar circumstances, it was held to be a violation of the act. Not every person or company desiring to develop a coal mine along or near defendant's road is entitled to demand a sidetrack connection merely because connections have previously been made with other mines. There must be such similarity of situation and feasibility of connection as will permit practical adherence to reasonable operating conditions by the carrier. But where physical conditions pertaining to the proposed connection are at least as favorable to the carrier as those pertaining to the other connections the applicant is entitled to his connection. Red Rock Fuel Co. v. Baltimore & O. R. R., 11 I. C. C. Rep. 438 (1905).

945. Device for concealing preference unavailing.

As has been seen, no device to conceal the preference can operate to evade the statute. Thus underbilling a device by which a shipper pays for the transportation of a less quantity of freight than is actually carried, and thereby obtains a reduced rate upon the gross shipment, is forbidden

by the act. In re Underbilling, 1 Int. Com. Rep. 813, 1 I. C. C. 633 (1888). So the failure to furnish cars rateably in time of shortage is an unreasonable preference under the act. Richmond Elevator Co. v. Pere Marquette R. R., 10 I. C. C. Rep. 629 (1905). So complainant was unjustly discriminated against by defendant's refusal to provide cars for the shipment of cross ties, while it did furnish cars to other persons for the interstate shipment of lumber, stone, and many other freight articles, and also supplied cars for the shipment of cross ties destined almost entirely for its own use. Paxton Tie Co. v. Detroit S. Ry., 10 I. C. C. Rep. 422 (1905). So the payment of an unreasonable rent for the use of cars furnished by shippers creates an unreasonable preference. Rice v. Cincinnati, W. & B. R. R., 3 Int. Com. Rep. 841, 5 I. C. C. 193 (1891). When actual weights cannot be ascertained without needless inconvenience there is no serious objection to the use of estimated or constructive weights, provided the method of estimation works no inequality in its practical application to competing modes of conveyance; but this rule, too, in circumstances where it works injustice would be illegal. Ibid.

§ 946. Preference in certain services permissible.

In matters outside the scope of its public business the carrier is at liberty to discriminate at pleasure; such cases are not covered by the act. So in providing cars for its traffic it may lease as well as buy them, and if it leases them, it may deal exclusively with one car company and refuse to deal with other companies. Re Transportation of Fruit, 10 I. C. C. Rep. 360 (1905); Consolidated Forwarding Co. v. Southern P. Co., 9 I. C. C. Rep. 182 (1902); Burton Stock-Car Co. v. Chicago, B. & Q. R. R., 1 Int. Com. Rep. 329, 1 I. C. C. 132 (1887). So a railway company practices no discrimination within the Interstate Commerce Act by selling passenger tickets at full fare to a land company which sells them at half rates to guests of its hotel, persons residing upon land sold or transferred by it, and others, but refusing to sell them at half rates to a person living in the same locality upon ground not acquired from it, although the two corporations are under substantially the same ownership and control, where their community of interests is not made a device for enabling the railway company to evade its legal obligations. Willson v. Rock Creek R. R., 7 I. C. C. Rep. 83 (1897).

So a railroad may make and carry out an exclusive contract with a stock-yards company for the exclusive delivery to that company of live stock in a city, and no other stock-yards company or carrier can complain so long as all shippers and consignees have equal facilities there. Central Stock-Yards Co. v. Louisville & N. R. R., 118 Fed. 113, 55 C. C. A. 63 (1902). And this is true although in carrying out such contract it refuses to deliver to another railroad company, for delivery to a competing stock yards, live stock consigned to such competing stock yards. Railroad Com

mission of Kentucky v. Louisville & N. R. R., 10 I. C. C. Rep. 173 (1904). So the exercise by a railway company of the right to prepayment, or to retain a lien upon the goods until payment is made, or to hold the consignee responsible in case of delivery before payment, or the waiver of some of such rights at different times, cannot be construed to be a discrimination. Little Rock & M. R. Co. v. St. Louis & S. W. Ry., 63 Fed. 775, 11 C. C. A. 417, B. & W. 277 (1894).

947. Effect of illegality on contract of carriage.

The effect of a violation of the act is to make the contract of carriage, including the rate named therein, invalid. The carrier therefore cannot be sued for breach of an executory term of the contract. Interstate Commerce Commission v. Chesapeake & O. Ry., 128 Fed. 59 (1904); Red Cloud Mining Co. v. Southern Pac. Co., 9 I. C. C. Rep. 216 (1902). And the contract rate being invalid the carrier may collect the schedule rate. Texas & P. Ry. v. Mudd, 26 Sup. Ct. 628 (1906), reversing 98 Tex. 352, 83 S. W. 800; Duncan v. Atchison, T. & S. F. R. R., 4 Int. Com. Rep. 385 (1893); St. Louis & S. F. R. R. v. Ostrander (Ark.), 52 S. W. 435 (1899); Kizer v. Texarkana & F. S. Ry. (Ark.), 50 S. W. 871 (1899); Raleigh & G. R. R. v. Swanson (Ga.), 28 S. E. 601 (1897); Bullard v. Northern Pac. R.. R. (Mont.), 25 Pac. 120, 3 Int. Com. Rep. 536 (1890). The burden is on the party desiring to avoid the contract to show that it violates the act. Southern Pac. Co. v. Redding (Tex. Civ. App.), 43 S. W. 1061 (1897).

This principle however applies only to a claim which must be based on the illegal contract. The granting of a rebate contrary to the provision of the interstate commerce law does not render the bill of lading void, so that no action can be maintained against the carrier for loss of the goods by negligence. Merchants' C. P. & S. Co. v. Insurance Co. of North America, 151 U. S. 368, 38 L. Ed. 195, 14 Sup. Ct. 367 (1894).

TOPIC B-LIKE AND CONTEMPORANEOUS SERVICE.

[See Chapters XXI and XXII for discussion of principles.]

948. Difference in time or place.

In order to be obnoxious to the act on the ground of discrimination, the services of the carrier with respect to which discrimination is alleged must be performed at practically the same time and place. If the two services are performed at substantially different times they cannot be compared. Thus a carrier is not compelled to give special excursion rates to one political convention because it has given them to a similar convention of another political party on another date. Cator v. Southern P. Co., 4 Int. Com. Rep. 397, 6 I. C. C. 113 (1893). The same thing is true if the services compared are performed in different parts of the country. Allen v.

Oregon Ry. & Nav. Co., 98 Fed. 16 (1899); Central Yellow Pine Assoc. v. Illinois Cent. R. R., 10 I. C. C. Rep. 505 (1905); Parks v. Cincinnati & M. V. R. R., 10 I. C. C. Rep. 47 (1904); or in different directions. McLoon v. Boston & M. R. R., 9 I. C. C. Rep. 642 (1903); Hewins v. New York, N. H. & H. R. R., 10 I. C. C. Rep. 221 (1904).

§ 949. Difference in nature of service.

There is no illegal discrimination unless the services compared are substantially the same. Thus a reasonable classification of commodities or passengers according to the nature of the goods or the accommodations furnished does not result in discrimination. Lavery v. New York C. & H. R. R. R., 2 Int. Com. Rep. 210, 2 I. C. C. 338 (1888); New York Board of Trade and Transp. v. Pennsylvania R. R., 3 Int. Com. Rep. 417, 4 I. C. C. 447 (1890); Brownell v. Columbus & C. M. R. R., 4 Int. Com. Rep. 285, 5 I. C. C. 638 (1893). Nor can the carriage of products of entirely different kinds be compared. Rice v. Cincinnati, W. & B. R. R., 3 Int. Com. Rep. 841, 5 I. C. C. 193 (1891); Pennsylvania Millers' State Assoc. v. Philadelphia & R. R. R., 8 I. C. C. Rep. 531 (1900). Nor can charges for terminal or other incidental services of entirely different kinds be compared; such as storage charges at warehouses and in stations. Blackman v. Southern Ry., 10 I. C. C. Rep. 352 (1904); delivery of goods on spur tracks and by drays, Hezel Milling Co. v. St. Louis, A. & T. H. R. R., 3 Int. Com. Rep. 701, 5 I. C. C. 57 (1891); carriage through cities where bus transfer is and is not furnished. Behrend v. Washington S. Ry., 9 I. C. C. Rep. 637 (1903).

But a difference in charge for carrying oil in tank cars and in barrels, where carriage in tank cars is not open to shippers impartially, is an illegal discrimination, since the service to the shipper is the same. Independent Refiners' Assoc. v. Western N. Y. & P. R. R., 4 Int. Com. Rep. 162, 5 I. C. C. 415 (1892).

TOPIC

CSUBSTANTIALLY

SIMILAR

CONDITIONS.

CIRCUMSTANCES AND

[See discussion of the principles requiring equal service in Chapters VII, VIII, XXII, XXIII.]

§ 950. What circumstances can be considered.

A discrimination against a shipper is not justified because he has refused in the past to pay excessive charges: Phelps v. Texas & P. Ry., 4 Int. Com. Rep. 363, 6 I. C. C. 36 (1894), or because the goods are eventually destined to a point beyond the original destination. Northwestern I. G. & S. S. Assoc. v. Chicago & N. W. Ry., 2 Int. Com. Rep. 431, 2 I. C. C. 604 (1889); Hope Cotton Oil Co. v. Texas & P. Ry., 10 I. C. C. Rep.

696 (1905). Or because they came from a certain place. Bigbee & W. R. P. Co. v. Mobile & O. Ry., 60 Fed. 545 (1893). So the magnitude of a shipper's enterprise, the number of persons for whom it produces employment and support, the developing results of its business upon the natural resources of the State, the impracticability of moving its plant to other localities, and the fact that it produces material largely used on railroads for construction or repair, do not entitle it to different consideration in respect to rates than individuals and small concerns should receive. Colorado Fuel & I. Co. v. Southern P. Co., 6 I. C. C. Rep. 488 (1895). Nor will the private interest of the carrier justify discrimination. Thus the high relative classification of railroad ties, under the desire to keep them upon its own line and keep the price low for its own use, is unreasonable discrimination. Reynolds v. Western N. Y. & P. R. R., 1 Int. Com. Rep. 685, 1 I. C. C. 393 (1887). So an assurance by a carrier, that if one will locate in business on its line his property shall be taken for transportation as belonging to a specified class, cannot bind the carrier so as to compel a classification accordingly. A right to special rates cannot be made out in this way. Hurlburt v. Lake Shore & M. S. R. R., 2 Int. Com. Rep. 81, 2 I. C. C. 122 (1888). A higher charge when coal is loaded from wagon instead of from tipple, when the difference is not justified by any difference in cost to the carrier, is unlawful. Glade Coal Co. v. Baltimore & O. R. R., 10 I. C. C. Rep. 226 (1904); Thompson v. Pennsylvania R. R., 10 I. C. C. Rep. 640 (1905).

On the other hand, circumstances which really cause trouble or expense to the carrier may be considered. Thus where party-rate tickets are ordinarily closely limited in time, and are paid for in cash in advance, while those furnished to the government are not so limited, are furnished on a requisition, and are only paid for after indefinite delay in the auditing and allowance of the claims by the War and Treasury Departments, the conditions and circumstances under which the service is rendered are essentially different, and justify the making of different rates. United States v. Chicago & N. W. Ry., 127 Fed. 785, 62 C. C. A. 465 (1904). Other differences will render the services unlike. So where a passenger fails to buy a ticket, compelling him to pay excess fare is not an unlawful discrimination against him. Sidman v. Richmond & D. R. R., 2 Int. Com. Rep. 766, 3 I. C. C. 512 (1890).

951. Occupation of passenger or shipper.

A difference in rate cannot be justified by a difference in occupation of the passenger or shipper. Thus a lower rate of fare will not be justified to land explorers and settlers. Smith v. Northern Pac. R. R., 1 Int. Com. Rep. 611, 1 I. C. C. 208 (1887); or to emigrants, Elvey v. Illinois Cent. R. R., 2 Int. Com. Rep. 804, 3 I. C. C. 652 (1890); or to commercial travellers, Larrison v. Chicago & G. T. Ry., 1 Int. Com. Rep. 369 (1887); As