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." 1 § 1291. Necessity for the rule against discrimination. In last analysis therefore, it is public opinion which has dictated this rule, although it is not too much to claim that this rule is a logical development in the law of public 1 The following cases among others hold discrimination to be illegal in itself if the conditions under which the service is rendered are similar: United States.-American Express Co. v. United States, 212 U. S. 522, 53 L. ed. 635, 29 Sup. Ct. 315 (1908); Western U. T. Co. v. Call Pub. Co., 181 U. S. 92, 45 L. ed. 765, 21 Sup. Ct. 561 (1901); Hays Pennsylvania R. R. Co., 12 Fed. 309, B. & W. 368 (1882); Postal Cable Telegraph Co. v. Cumberland Telephone & Telegraph Co., 177 Fed. 726 (1910). V. Alabama.-Mobile v. Bienville Water Supply Co., 130 Ala. 379, 30 So. 445 (1901). Georgia. Savannah, F. & W. Ry. Co. v. Burdick, 94 Ga. 775, 21 S. E. 994 (1894). Illinois. Snell v. Clinton Electric Light Co., 196 Ill. 626, 63 N. E. 1082, 89 Am. St. Rep. 341, 58 L. R. A. 284 (1902). Indiana.-Indiana Nat. & I. Gas Co. v. State ex rel., 158 Ind. 516, 63 N. E. 220 (1902). Kansas.-Missouri, K. & T. Ry. Co. v. New Era Milling Co. (Kan.), 100 Pac. 273 (1909). Kentucky.-Owensboro Gaslight Co. v. Hildebrand, 19 Ky. L. Rep. 983, 42 S. W. 351 (1897). New Jersey. Steward v. Lehigh V. R. R. Co., 38 N. J. L. 505 (1875). New York.-Armour Packing Co. v. Edison Electric Co., 115 N. Y. App. Div. 51, 100 N. Y. Supp. 605 (1906). North Carolina.-Griffin v. Goldsboro Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240 (1898). Ohio. Scofield v. Lake Shore & M. S. R. R., 43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846 (1885); State v. Cincinnati, N. O. & T. P. Ry. Co., 47 Ohio St. 130, 23 N. E. 928 (1890); Brundred v. Rice, 49 Ohio St. 640, 32 N. E. 169, 34 Am. St. Rep. 589 (1892); Baltimore & O. R. R. Co. v. Diamond Coal Co., 61 Ohio St. 242, 55 N. E. 616 (1899); Cincinnati, H. & P. R. R. Co. v. Bowling Green, 57 Ohio St. 336, 49 N. E. 129, 41 L. R. A. 122 (1897). Pennsylvania.-Sandford v. Catawissa, W. & E. R. R., 24 Pa. St. 378, 64 Am. Dec. 667 (1885); Long v. Springfield Water Co., 8 Del. Co. 151 (1901). Tennessee.-Crumley v. Watauga Water Co., 99 Tenn. 420, 41 S. W. 1058, 63 Am. St. Rep. 184 (1897). Texas.-Dittmar v. New Braunfels, 20 Tex. Civ. App. 293 (1899). Vermont.-Fitzgerald v. Grand Trunk Ry. Co., 63 Vt. 169, 22 Atl. 76, 13 L. R. A. 70 (1891). duty. So involved are the services of the common carrier directly or indirectly in all modern businesses that it is already felt to be unbearable if transportation is not open to all upon equal terms. And the rule must be exact. It is not enough to say that all must be given rates which are not unreasonable, for by that principle in many cases unequal rates might be justified. What public opinion requires to-day is that the rates shall be equal; if they are different by a few cents upon a hundredweight it may mean the fortune of the shipper who gets the lower rate and the ruin of his competitor who pays the higher rate. As was said in one of the leading cases against personal discrimination, Schofield v. Lake Shore & Michigan Southern Railway Company,' of discrimination for benefits received: "The principle is opposed to a sound public policy. It would build and foster monopolies, add largely to the accumulated power of capital and money, and drive out all enterprise not backed by overshadowing wealth. With the doctrine as contended for by the defendant, recognized and enforced by the courts, what will prevent the great grain interests of the northwest, or the coal and iron interests of Pennsylvania, or any of the great commercial interests of the country, bound together by the power and influence of aggregate wealth, and in league with the railroads of the land, driving to the wall all private enterprises struggling for existence, and with an iron hand thrusting back all but themselves?" 2 § 1292. Discrimination inconsistent with public duty. It is only within this last generation, therefore, that it has been appreciated that discrimination is truly inconsistent with public duty. Indeed, it was bitter experience 1 43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846 (1885). 2 See particularly all of the opinions in Messenger v. Pennsylvania R. R. Co., 7 Vroom (36 N. J. L.), 407, 13 Am. Rep. 457, 8 Vroom (37 N. J. L.), 531, 18 Am. Rep. 754 (1874). 1 that forced the establishment of this law rather than any process of logical deduction. But now that our eyes have been opened it is seen that this rule against discrimination is involved in the general law of public service. And in many cases of recent date it is stated as a matter of course that the duty owed to all alike involves the obligation to treat all alike. The double aspect in which the duty of the common carrier in making rates is viewed by the more advanced courts is well stated by one Judge thus: "The statement that one is a common carrier ex vi termini, imports a duty to the public, and a corresponding legal right in the public, a right common to all. One of the duties imposed upon the common carrier is, that he is bound to carry for a reasonable remuneration, and is not allowed to make unreasonable and excessive charges. He cannot, like a merchant or mechanic consult his pleasure or caprice in the conduct of his business, and cannot even by special agreement receive an excessive and extortionate price for his services. Another duty imposed upon him is to make no unjust, injurious or arbitrary discrimination between individuals in his dealings with the public. The right to the transportation services of the carrier is a common right belonging to every one alike." 2 Topic B. What Constitutes Illegal Discrimination 1293. What amounts to a rebate. Not only are the outright discounts and the flimsy rebates of the earlier time illegal, but any device by which the charge to a shipper is made less than the schedule rate is now held discrimination. Thus free cartage for the collection and delivery of freight for certain shippers only 1 Baker, J., in St. Louis, A. & T. H. R. R. Co. v. Hill, 14 Ill. App. 579 (1884). 2 See the strong opinion of Judge Grosscup in United States v. Michigan Central R. R. Co., 122 Fed. 544 (1903). is an illegal rebate.1 And the allowance to certain shippers of a certain sum for the use of their private sidings is another case of illegal reduction. As such obvious devices have thus become too dangerous, more elaborate schemes have developed for getting an advantage in rates. Thus many large concerns have organized, often as a separate concern, an industrial railway from their premises to the trunk line. They may thus attempt to pose as a connecting carrier, and not only obtain from the trunk line a division of the rate to market but that disproportionately large share which the originating carrier gets.3 Another late scheme is the organization of a dummy transportation company by a manufacturing company to carry its products to market, getting as payment not only the rental of their special cars at extraordinarily high rate but a virtual commission for furnishing the business.' It is needless to say that the courts have now become too sophisticated to be thus imposed upon. Indeed rebating in all its forms has now become a very smoky sin indeed, and anyone who is concerned in it will be smutted. § 1294. Sanctity of the scheduled rate. The strict provisions against rebating in the recent legislation are based upon an ingenious and apparently effective plan. A schedule of rates prepared by the railroad must be filed with the commission, and duly published 5 as required. When this has been done, the rate so scheduled cannot be changed by the railroad without the 1 Wight v. United States, 167 U. S. 512, 42 L. ed. 258, 17 Sup. Ct. 822 (1897). See also Evershed v. London & N. W. Ry., L. R. 2 Q. B. 254. 2 Chicago & A. Ry. Co. v. United States (C. C. A.), 156 Fed. 558 (1907). See United States v. Atchison, T. & S. F. R. R. Co., 142 Fed. 176 (1905). 4 See United States v. Milwaukee Refrig. Transit Co. (C. C. A.), 145 Fed. 1007 (1906). Due publication of rates may be required by legislation. Stone et al. v. Yazoo & M. V. R. R. Co., 62 Miss. 607 (1885). The doc filing and sufficient publication of a new rate. trine is carried to such an extent that even if a shipper is at first charged a lower rate quoted him by a freight agent, he can be compelled to pay the difference between this and the scheduled rate.1 If the rate so published is unreasonable in itself or otherwise disproportionate, nevertheless the shipper cannot accept nor the railroad grant a departure from it. The shipper's remedy is a complaint to the commission, which will result, if successful, in a reduction in the future and in damages for past unfair exactions. It follows that not only are rebates to favored individuals and even special rates for good reasons, if they have not been publicly offered, made criminal; but it is 1 United States.-Texas & P. R. R. Co. v. Mugg, 202 U. S. 242, 50 L. ed. 1011, 26 Sup. Ct. 628 (1906), reversing 98 Tex. 352, 83 S. W. 800. Alabama.-Southern Ry. Co. v. Harrison, 119 Ala. 539, 24 So. 55 (1898). Arkansas. St. Louis & S. F. R. R. v. Ostrander, 66 Ark. 567, 52 S. W. 435 (1899). Connecticut.-Rowland V. New York, N. H. & H. R. R. Co., 61 Conn. 103, 23 Atl. 755, 29 Am. St. Rep. 175 (1891). Georgia. Savannah F.'& W. Ry. Co. v. Bundick, 94 Ga. 775, 21 S. E. 995 (1898). Louisiana.-Foster G. Co. V. Kansas City So. Ry. Co., 121 La. 1053, 40 So. 1014 (1908). Montana.-Bullard v. Northern Pacific Ry. Co., 10 Mont. 168, 25 Pac. 120 (1890). Nebraska.-Haurigan v. Chicago & N. W. Ry. Co., 80 Neb. 132, 117 N. W. 100 (1907). Texas. See Southern Pac. Ry. Co. v. Redding (Tex. Civ. App.), 43 2 United States.-Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. 350 (1907); Southern Ry. Co. v. Tift, 206 U. S. 428, 51 L. ed. 1061, 27 Sup. Ct. 709 (1907), semble; American Union Coal Co. v. Pennsylvania R. R. Co., 159 Fed. 278 (1908); Van Patten v. Chicago, M. & St. P. Ry. Co., 81 Fed. 545 (1897). Georgia.-Georgia R. R. Co. v. Creety, 5 Ga. App. 424, 63 S. E. 528 (1909). Missouri.-Mires v. St. Louis & S. F. Ry. Co., 134 Mo. App. 379, 114 S. W. 1052 (1908). Nebraska.-Wentz-Bates Mercantile Co. v. Union Pacific Ry. Co., 85 Neb. 584, 123 N. W. 1085 (1909). Oklahoma.-Atchison, T. & S. F. Ry. Co. v. Holmes, 18 Okla. 92, 90 Pac. 22 (1907). West Virginia.-Robinson v. Baltimore & R. Co., 64 W. Va. 406, 63 S. E. 323 (1908). |