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granted and allowed to other shippers, and had arbitrarily exacted from them a much greater rate of freight than he was at the same time charging to shippers of merchandise generally. It appeared that these shippers had thus been "blacklisted" because they maintained business relations with a rival carrier. But the court found this no excuse for charging the complainants more than the regular rates, Judge Baxter, although still believing as the majority of people then believed that the law did not require any greater equality than that no shipper should be charged an unreasonable rate, nevertheless finding upon the evidence that the complainants had been treated outrageously. "The fact that the carrier charges some less than others for the same service is merely evidence for the latter, tending to show that he charges them too much; but when it appears that the charges are greater than those ordinarily and uniformly made to others for similar services, the fact is not only competent evidence against the carrier, but cogent evidence, and shifts upon him the burden of justifying the exceptional charge." 1

1 This distinctive rule against unjustifiable discrimination was recognized in:

United States.-De Bary Baya M. L. v. Jacksonville, T. & K. W. Ry. Co., 40 Fed. 392 (1889); Samuels v. Louisville & N. R. R. Co., 31 Fed. 57 (1887); Postal Cable Telegraph Co. v. Cumberland Telephone & Telegraph Co., 177 Fed. 726 (1910).

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

Illinois. Chicago, B. & Q. R. R. v. Parks, 18 Ill. 460, 68 Am. Dec. 562 (1857).

Massachusetts.-Fitchburg Railroad Co. v. Gage, 12 Gray, 393 (1859). V. Wa

Missouri.-Rothschild

bash, St. L. & P. R. R., 92 Mo. 91, 4 S. W. 418 (1887); McNees v. Missouri Pacific R. R. Co., 22 Mo. App. 224 (1886).

New York.-Killmer v. New York Cent. & H. R. R. R. Co., 100 N. Y. 395, 3 N. E. 293, 53 Am. Rep. 194 (1885).

North Carolina.-Griffin v. Goldsboro Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240 (1898).

England. Steamship Co. v. McGregor, 21 Q. B. Div. 544, affirmed

§ 1288. Others charged less than regular rates.

It is not surprising that the distinction just discussed has fallen into disrepute. Whether the complainant is charged more than the regular rates which others are called upon to pay, or whether he is compelled to pay the regular rates while others are given reductions there is the same inequality in treatment and the same disadvantage in business. That this distinction is ignored in modern times is shown in several recent years in many cases but in none is it better set forth than in a water rates case where the complaint made by certain takers was that certain others were getting much lower rates. The company explained that these others had threatened to start a rival water company and that these concessions had been necessary to ward off this project; but the North Carolina court held this no justification.1 Mr. Justice Clark wrote a striking opinion well worth full quotation to show the modern way of looking at the wrong of discrimination: "The acceptance by a water company of its franchise carries with it the duty of supplying all persons along the lines of its mains, without discrimination, with the commodity which it was organized to furnish. All persons are entitled to have the same service on equal terms and at uniform rates. If this were not so, and if corporations existing by the grant of public franchises and supplying the great conveniences and necessities of modern city life, as water, gas, electric light, street cars, and the like could charge any rates however unreasonable, and could at will favor certain individuals with low rates

23 Q. B. Div. 598 (1892), 17 App.
Cas. 25; Evershed v. Railway Co., 3
Q. B. Div. 135, affirmed L. R. 3
App. Cas. 1029 (1878).

1 Griffin v. Goldsboro Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240 (1898).

Accord is Harris v. Cockemoutn Ry. Co., 3 C. B. (N. S.) 693 (lower rate to one threatening new railway not justified).

See further State v. Birmingham Water Works Co. (Ala.), 51 So. 354 (1910).

and charge others exorbitantly high or refuse service altogether, the business interests and the domestic comfort of every man would be at their mercy. They could kill the business of one and make alive that of another and instead of being a public agency created to promote the public comfort and welfare these corporations would be the masters of the cities they were established to serve. A few wealthy men might combine and, by threatening to establish competition, procure very low rates which the company might recoup by raising the price to others not financially able to resist the very class which most needs the protection of the law-and that very condition is averred in this complaint. The law will not and cannot tolerate discrimination in the charges of these quasi-public corporations. There must be equality of rights to all and special privileges to none, and if this is violated, or unreasonable rates are charged, the humblest citizen has the right to invoke the protection of the laws equally with any other." 1

§ 1289. Outright discrimination universally condemned. Even in the earlier cases some qualifications were made; the power to discriminate as much as it pleased between shippers was not left to the railroads. For even then it was vaguely felt that equal service to all dealers upon fair terms was necessary for the maintenance of free industrial conditions. And the courts never went so far that they could not be continually more insistent that they had meant that reasonable rates to all must be equal rates to all unless the conditions were shown to be dissimilar. This is the position still taken in many jurisdictions; and

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it will be seen that to a large extent it prevents discriminatory rates as well as unreasonable charges. An elaborate case of the sort just described from a comparatively recent period is Cook v. Chicago, Rock Island and Pacific 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 car load 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 opinion of Chief Justice Rothrock is too elaborate for full summarizing here. He comes to agreeing with the advanced view which had but recently been put forward by Hutchinson: where in section 243 after review of the various cases it was 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." 2

181 Iowa, 551, 46 N. W. 1080, 25 Am. St. Rep. 512, 9 L. R. A. 764 (1890).

2 The same way of looking at the problem may be seen in the following cases among others:

United States.-Hays v. Pennsylvania Co., 12 Fed. 309 (1882).

Georgia. Savannah, F. & W. Ry. Co. v. Bundick, 94 Ga. 775, 21 S. E. 994 (1894).

Illinois.-Indianapolis, D. & S.

R. R. Co. v. Ervin, 118 Ill. 250 (1886).

Maine. New England Exp. Co. v. Maine Cent. R. R. Co., 57 Me. 188, 2 Am. Rep. 31 (1869).

Outer

New York.-Lough bridge, 143 N. Y. 271, 38 N. E. 292, 42 Am. St. Rep. 712, 25 L. R. A. 674 (1894).

New Hampshire.-McDuffee v.

§ 1290. Modern law against all discrimination.

1

By the better view, it is submitted, the common law to-day forbids all discrimination between two applicants who ask the same service. 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 partiality 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

Portland & R. R. R. Co., 52 N. H. 430, 13 Am. Rep. 72 (1873).

Texas.-Dittmar v. New Braunfels, 20 Tex. Civ. App. 293 (1899).

17 Vroom (36 N. J. Law), 407, 13 Am. Rep. 457, 8 Vroom (37 N. J. L.), 531, 18 Am. Rep. 754 (1874).

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