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no fault of the carrier, no freight whatever is earned.1 If they arrive damaged by fault of the carrier, so long as they are still in specie, the owner cannot refuse to receive them. In England he must pay the entire freight, and recover damages for the injury as a separate matter.2 In the United States, however, he may if he chooses deduct from the freight the damage to the goods." As, however, no excess of damage can be recovered in that way and if recoupment is made no action will lie for the excess of the damage, this course is not wise unless the amount of damage is less than the freight.

§ 1270. General principles as to additional charges.

The entire service of the carrier in connection with a single shipment being conceived of as a unit, it should follow that only one charge may be made, covering the entire unit of service. Ordinarily this is true. The railroad company cannot make a variety of different charges for the facilities it uses and the servants it employs; for instance, it would be absurd for it to make a block signal charge or an engineer charge. It would seem to be the duty of the railroad to equip itself fully for the service it undertakes, and then to make a single rate to the shipper who wishes the transportation of certain goods to a certain place. This ought to hold true of all usual services which

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1 Ridyard v. Phillips, 4 Blatch. 443, Fed. Cas. 11,820 (1860).

2 Meyer v. Dresser, 10 C. B. N. S. 646 (1864).

3 Connecticut.-Relyea v. New Haven R. M. Co., 42 Conn. 579 (1873). Illinois.-Edwards v. Todd, 2 Ill. 462 (1837).

Kentucky.-Boggs v. Martin, 13 B. Mon. (Ky.) 239 (1852).

Michigan.-Ward v. Fellers, 3

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the carrier must render the shipper in the line of its duty, but as to services outside its obligation to the shipper it may render a separate bill if it pleases. More than this, there are, it must be admitted, certain extraordinary services in special kinds of shipments which are not required by shippers generally, and for which, it seems, it is more convenient, if indeed not more just, to make a separate charge.1

It was held in the 3191⁄2 Tons of Coal, 14 Blatch. 453 (1878), that a railroad could not justify charg

ing a shipper for shoveling at a coal tipple more than the current rate for such service.

PART X. PREVENTION OF DISCRIMI

NATION

CHAPTER XXXVII

PROHIBITION OF DISCRIMINATION

§ 1280. The rule against discrimination.

Topic A. Development of the Rule

§ 1281. Evolution of the rule.

1282. No law originally against discrimination as such.
1283. Later rule against unreasonable differences.
1284. Special rates may not be discriminatory.

1285. Exclusiveness once held indispensable.

1286. Discrimination as evidence of unreasonable rates.
1287. Complainant charged more than regular rates.
1288. Others charged less than regular rates.
1289. Outright discrimination universally condemned.
1290. Modern law against all discrimination.
1291. Necessity for the rule against discrimination.
1292. Discrimination inconsistent with public duty.

Topic B. What Constitutes Illegal Discrimination

§ 1293. What amounts to a rebate.

1294. Sanctity of the schedule rate.

1295. Explanation of this policy.

1296. Decisions inconsistent with this policy.

1297. Continuing contracts no justification.

1298. Whether contracts are different.

1299. Rule not limited to discrimination between competitors.

1300. Rule universal in public service.
1301. Giving free passes discrimination.
1302. Statutory exceptions usually made.
1303. Reductions for charitable purposes.
1304. Concessions for government business.
1305. Reductions for general classes.
1306. No obligation to grant such concession.

§1280. The rule against discrimination.

The term unjust discrimination has been in the public service law from the beginning, but it has never meant as much as it does to-day. When an innkeeper took in one traveler and turned the next away this would be called discrimination, when in reality the wrong to the second is refusal to serve him, not discrimination against man him. What would be discrimination in the modern sense would be if a carrier should, while accepting goods from two shippers willingly enough, charge one more than the other for the same transportation. So if a railroad in time of stress should give cars to earlier shippers and have left for later applicants, this would sometimes be called discrimination; but in this case the default of the carrier is his failure to provide sufficient facilities for all. But although it is not discrimination for a carrier of passengers to assign separate cars to negro passengers it would be discrimination if these cars were not as well appointed as those assigned to white passengers.

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Topic A. Development of the Rule

§ 1281. Evolution of the rule.

The fundamental limitation upon the charges of a common carrier, that they shall be in no respect unreasonable, has just been discussed with much detail. But a further requirement of the public service law governing the rates of the common carrier remains to be considered, and that is the more modern requisite that rates shall be in no respect unjustly discriminatory. It must be plain to all who have followed the course of events with the least attention that there has been distinct evolution in the law governing public employment during the last twenty-five years.1 The rule against discrimination is the most recent

Thus to protect himself against for a patron of a public service discrimination it was once necessary company to get the company to

development in the definition of public duty. A comparatively few years ago it was held that if a public service company served all at reasonable rates it performed its obligation,1 but modern industrial conditions require the further law that it shall serve all with equality. The study of the general course of this development is well worth the space which will be devoted to it in this chapter. One cannot know exactly what the present law is upon this or any other subject without knowing its history.

§ 1282. No law originally against discrimination as such. The state of the law as to this matter at the middle of the nineteenth century is well set forth in the important case of Fitchburg Railroad v. Gage.2 The principal issue in this case was whether the railroad could charge one shipper a fifty cent rate on ice from one point on their route to another while it was charging another shipper a twenty cent rate on brick for the same transportation. It will be seen that this case really involves no question of personal discrimination since these are obviously very different goods which are being shipped over the route. Still the language of the court is often cited as expressing the opinion that there is no rule against discrimination as such; and this undoubtedly was its view, as it was of other courts at that time. Mr. Justice Merrick thus concluded his discussion of the general rights and duties of common carriers according to the common law as he conceived it to be: "The principle derived from that source is very plain and simple. It requires equal justice to all. But the equality which is to be observed in relation to the public and to contract with him that it would not discriminate against him. See Pennsylvania Coal Co. v. Delaware & H. Canal Co., 31 N. Y. 91 (1865).

1 Where there is a statute against discrimination it is sometimes thought by courts to-day that un

less the case in hand comes within the statute there is no law against the discrimination. Bibber-White Co. v. White River Valley Electric Co., 175 Fed. 470 (1910).

212 Gray (Mass.), 393 (1859).

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