to a shipper who furnishes a part of the facilities which the carrier must otherwise provide in order to serve him. One of the leading cases in establishing this particular rule is undoubtedly Root v. Long Island Railroad,1 where a lower rate was given to a shipper who had built a pocket from which he loaded himself the cars in which he shipped. The court decided that there was no public policy opposed to the enforcement of this contract. "Had this provision stood alone, unqualified by other provisions, without the circumstances under which it was executed explaining the necessity therefor" said Mr. Justice Haight: "We should be inclined to the opinion that it did provide for an unjust discrimination; but, upon referring to the contract, we see that the rebate was agreed to be paid in consideration for the dock and coal pocket which was to be constructed upon the defendant's premises at an expense of $17,000, in part for the use and convenience of the defendant. Quintard was to load all the cars with the coal that was to be transported. It was understood that a large quantity of coal was to be shipped over defendant's line, thus increasing the business and income of the company. The facilities which Quintard was to provide for the loading of the coal, his services in loading the cars, the large quantities which he was to ship, in connection with the large sums of money that he had expended in the erection of the dock, in part for the use and accommodation of the defendant, are facts which tend to explain the provisions of the contract complained of, and render it a question of fact for the determination of the trial court as to whether or not the rebate, under the circumstances of this case, amounted to an unjust discrimination, to the injury and prejudice of others. Therefore, in this case, the question is one of fact, and not of law; and, inasAm. St. Rep. 643, 4 L. R. A. 33 (1889). 1114 N. Y. 330, 21 N. E. 403, 11 much as the discrimination has not been found to be unjust or unreasonable, the judgment cannot be disturbed." § 1357. Transportation expenses paid by shipper. Whatever is done by the shipper which directly reduces to the railroad company the cost of serving him may be allowed for in the rate made to him without causing discrimination. One of the plainest cases of this sort before the Interstate Commerce Commission is Castle v. Baltimore & Ohio Railroad Company,2 where complainant alleged that defendant had unjustly discriminated in rates and facilities for the transportation of sand against him and in favor of his competitors. Discussing the essential facts, the Commission said: "The only remaining point, and by far the most important one raised by this issue, is that involved in the alleged discriminations in favor of Brown, the complainant's competitor at Dock Siding. Brown, it appears, owned and at times leased other cars and equipment, paid the trainmen, conductors, and necessary telegraph operators, and relieved the defendant from all liability from either loss or damage to rolling stock or injury to employees; in consideration of which the defendant charged him for track service only. The complainant owned neither cars nor equipment, and when shipping in the defendant's cars was charged the published rate." 3 § 1358. Rental paid for shipper's cars. If the shipper provides his own cars the railroad, it would seem clear, may allow him a reduction in his freight 1 It is generally agreed at common law that a reduction may be made to such shippers as furnish a part of the facilities necessary to serve them. See Savitz v. Ohio & M. Ry., 150 Ill. 208, 27 N. E. 235, 27 L. R. A. 626 (1894), affirming 49 Ill. App. 315 (1892); Scofield v. Lake Shore & M. S. R. R., 43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846 (1885). 28 Int. Comm. Rep. 333 (1899). 3 See Chicago & A. R. R. Co. v. Chicago V. & W. Coal Co., 79 Ill. 121 (1875), where a shipper furnishing the rolling stock was given an unusual concession from regular rates. rate, equal to the rental value of his cars. It is properly the business of the railway companies, to be sure, to supply cars for their customers; but if they stand ready to do this, they may, nevertheless, at their option make an allowance to the shipper who furnishes his own cars, which is not disproportionate to the reduced cost of serving him. Even in the extreme case of State v. Cincinnati, New Orleans & Texas Pacific Railroad Company,1 which is most opposed to special arrangements of this sort, this is admitted. "No doubt, a shipper who owns cars may be paid a reasonable compensation for their use, so that the compensation is not made a cover for discriminating rates, or other advantages to such owner as a shipper." § 1359. Allowances for facilities closely scrutinized. It must be realized, however, that a good deal of the law that has just been stated is obsolescent. With the rigorous enforcement of the law against all discrimination in late years, such arrangements as have been just described are being condemned, if not as virtual discrimination at least as a cover for discrimination. At all events, the whole facts will be gone into to discover whether too advantageous terms are being obtained. Thus in a recent case it was discovered that a car company was getting so much for the use of its cars that the reduction was being made the basis for reduced rates to those who shipped in those cars. And in another recent case not charging certain shippers demurrage for cars upon an apparently private siding found to be public while others paid demurrage in regular yards was held plain discrimination. However, the railroads are still allowed to make 147 Ohio St. 130, 23 N. E. 928 (1890). 2 See also Brundred v. Rice, 49 Ohio St. 640, 32 N. E. 169, 34 Am. St. Rep. 589 (1892). Interstate Commerce Commission v. Reichman, 145 Fed. 235 (1905). Ohio Coal Co. v. Whitcomb, 123 Fed. 359 (1903). arrangements with customers furnishing their own facilities. Some difficulty is inseparable from this situation, but probably not enough to justify the radical remedy of forbidding such arrangements altogether. Those who get allowances which are not scheduled will, however, fall foul of the modern statutes against discriminations, even if the allowance made is proper enough in itself.1 Moreover, when the arrangement is in its nature an exclusive one of which other patrons cannot take advantage it would generally be condemned.2 § 1360. Allowances for facilities still permissible. It would, however, be outrageous if there was no way to give a proper allowance to shippers who employ their own property and devote their own labor to some of the work that the carrier must otherwise do for them. In the latest Federal case this is vehemently insisted upon in setting aside a ruling of the Interstate Commerce Commission that no allowance should be made elevator men who supply their own grain from their own elevators. "Pecuniary advantages derived by shippers from the ownership or use of such facilities of trade are attributable to that ownership, and not to the transportation of the articles shipped, and the consideration and regulation of these advantages are without the scope of the commission's power. The truth is that trade advantages of this nature do not condition the questions of reasonableness of rates, or rebates, or of discrimination. The shipper who owns warehouses, tipples, spur tracks, cars, mills, and by their use derives greater profit from the dealing 1 Thus an allowance for terminal facilities which is not scheduled cannot be properly paid. Chicago & A. Ry. Co. v. United States (C. C. A.), 156 Fed. 558 (1907). 2 See Chesapeake & O. Ry. Co. v. Standard Lumber Co., 174 Fed. 107 (1910), where an allowance of 10% off all freight bills was allowed a shipper who had built a hoist to load his ties. 3 Peavey & Co. v. Union Pac. R. Co., 176 Fed. 409 (1910). in the articles which he ships over a railroad, is entitled to the same rate of charge for transportation and the same reasonable compensation for transportation services which he renders that the shipper who owns less or no such trade facilities and derived less profit is entitled to." 1 Topic D. Independent Consideration for Reductions 1361. When consideration is given for reduction. Abstractly it is not discrimination if one shipper pays his freight rate in money and another pays the same rate, partly in money and partly in services. There was once no doubts expressed about the propriety of such an arrangement and this has been permitted in several cases, for example in Rothschild v. Wabash Railroad Company 2 where a certain reduction was allowed to certain shippers who acted as "eveners" in distributing the traffic to several railways. In permitting these facts to be shown in justification, Judge Lewis said: "Suppose a railway company, instead of paying its conductor a salary, should choose to compensate his services by a percentage of the receipts from passengers traveling on his train. Suppose the conductor to purchase tickets at regular rates, for the use of members of his family, as passengers, on his train. He claims and receives his percentage on such tickets, as upon all others. Would it not be strangely absurd to allege that, by reason of this percentage, there is an unjust discrimination in the conductor's favor, reducing the cost of transportation to him, below what others are compelled to pay for the same facilities? The principle involved would be exactly the same that appears in the present case." 3 1 Citing Harp v. Choctaw, O. & G. Ry. Co., 125 Fed. 445, 61 C. C. A. 405 (1903). 2 92 Mo. 91, 4 S. W. 418 (1887). See further Sultan Ry. & T. Co. v. 3 There are other cases in which |