At the foundation of the whole matter lies the commonlaw rule, just and well settled, that in each particular case there shall be charged a reasonable compensation and no more.20 In this, as in every other case, the question of what is reasonable depends upon the circumstances of each particular case, and this ordinarily becomes a question of California: Cowden v. Pacific Coast S. S. Co., 94 Cal. 470, 29 Pac. Rep. 873, 28 Am. St. Rep. 142, 18 L. R. A. 221. Colorado: Railway Co. v. Bayles, 19 Colo. 348, 35 Pac. Rep. 744; S. c. Bayles v. Railway Co., 13 Colo. 181, 22 Pac. Rep. 341. Florida: Johnson v. Railroad Co., 16 Fla. 623. Illinois: Illinois Cent. R. Co. v. People, 121 Ill. 304; Railroad Co. v. Ervin, 118 Ill. 250; Chicago, etc. R. Co. v. People, 67 Ill. 11; Chicago, etc. Ry. Co. v. People, 56 Ill. 365; Vincent v. Railroad Co., 49 Ill. 33; Railway Co. v. Elliott, 76 Ill. 67; Illinois, etc. v. Beaird, 24 Ill. App. 322; Railroad Co. v. Crawford, 65 Ill. App. 113; Despatch Co. v. Cecil, 112 Ill. 185. Indiana: Railroad Co. v. Wilson, 132 Ind. 517, 32 N. E. Rep. 311, 18 L. R. A. 105; s. c. 119 Ind. 353, 21 N. E. 341. New York: Root v. Railroad Co., 114 N. Y. 300; Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. Rep. 292, 42 Am. St. Rep. 712, 25 L. R. A. 674, affirming 22 N. Y. Supp. 976; Kellogg v. Sowersby, 87 N. Y. Supp. 412, 93 App. Div. 124; Strough v. Railroad Co., 87 N. Y. Supp. 30, 92 App. Div. 584; Langdon v. Railroad Co., 9 N. Y. Supp. 245. Ohio: Scofield v. Railway Co., 43 Ohio St. 571 (a well considered and the most exhaustive of the cases); State v. Railway Co., 47 Ohio St. 130, 23 N. E. Rep. 928; Brundred v. Rice, 49 Ohio St. 640, 32 N. E. Rep. 169, 34 Am. St. Rep. 589. Pennsylvania: Hersh v. Railroad Co., 74 Pa. St. 181; Audenried v. Railroad Co., 68 Pa. St. 370; Shipper v. Railroad Co., 47 Pa. St. 338; Sanford v. Railroad Co., 24 Pa. St. 378; Hoover v. Maine: New England Exp. Co. Railroad Co., 156 Pa. St. 220, 27 v. Railroad Co., 57 Me. 188. Massachusetts: Fitchburg R. Co. v. Gage, 12 Gray, 393; Spofford v. Railroad Co., 128 Mass. 326. Missouri: Christie v. Railway Co., 94 Mo. 453, 7 S. W. Rep. 567; McNees v. Railway Co., 22 Mo. App. 224. New Hampshire: McDuffee v. Railroad Co., 52 N. H. 447. New Jersey: Messenger v. Railroad Co., 36 N. J. L. 407; Stewart v. Railroad Co., 38 N. J. L. 505. Atl. Rep. 282, 36 Am. St. Rep. 43, 22 L. R. A. 263. fact.21 A reasonable compensation in each case does not, however, necessarily mean absolute uniformity of rates in all cases.22 It simply requires that there shall be no unreasonable, and hence no unjust, discrimination. Tift v. Railway Co., 123 Fed. 789; 21. Root v. Railroad, 114 N. Y. 300, and cases cited in first note. If the facts of an alleged unlawful discrimination are well established or undisputed, the question of whether or not a statute forbidding discrimination is applicable is a question of law for the court and not of fact for the jury. Hoover v. Railroad Co., 156 Pa. 220, 27 Atl. Rep. 282, 22 L. R. A. 263, 36 Am. St. Rep. 43. 22. Railway Co. v. Bayles, 19 Colo. 348, 35 Pac. Rep. 744; s. c. Bayles v. Railway Co., 13 Colo. 181, 22 Pac. Rep. 341; Scofield v. Railway Co., 43 Ohio St. 571; and cases cited in first note. In Cleveland, etc. Ry. Co. v. Closser, 126 Ind. 348, 25 N. E. Rep. 159, Elliott, J., says: It is a matter of common knowledge, and therefore one of which judicial notice is taken, that an increase in the volume of business is desirable and advantageous, and in the rivalry of business competition it is lawful to favor those whose business is great rather than those whose business is small or inconsiderable. In the case of Nicholson v. Railway Co., C. B. (N. S.) 366, 1 Nev. & McN. 143, Erle, C. J., said: 'I take the free power of making contracts to be essential for the purpose of making commercial profits. Railway companies have that power as free as any merchants, subject only (as to this court) to the duty of acting impartially without respect of persons; and this duty is performed, when the offer to contract is made, to all who wish to adopt it. Large contracts may be beyond the means of small capitalists; con"The common-law authorities tracts for long distances may be (and by them the case is ruled) beyond the needs of some whose fully support the doctrine that a traffic is confined to a home dis mere discrimination will not in- trict; but the power of the railvalidate a contract; to have that way company to contract is not effect, other elements must enter restricted by these considerations.' into the contract; but when such It is obvious that, whether the elements are present in such force common carrier acts impartially as to make the discrimination un- or not depends upon the circumjust or oppressive, the contract stances of the particular case, for will be illegal. It is not neces- regard must be had to such cir sarily or per se a legal wrong for cumstances as quantity, distance a carrier to give better rates to and kindred considerations. The one who ships many car-loads of hinge of the question is not found grain than to one who ships a in the single fact of discriminasingle car-load or a single bushel. tion for discrimination without Mere inequality in charges does not, therefore, of itself amount to an unjust discrimination.23 It only becomes such when a discrimination is made in the rates charged for transportation of the goods of the same class of different shippers under like circumstances and conditions.24 24. Scofield v. Railway Co., 43 Ohio St. 571; Messenger v. Railroad Co., 36 N. J. L. 407; Railway Co. v. Bayles, 19 Colo. 348, 35 Pac. Rep. 744; s. c. Bayles v. Railway Co., 13 Colo. 181, 22 Pac. Rep. 341; Hoover v. Railroad Co., 156 Pa. St. 220, 27 Atl. 282, 36 Am. St. Rep. 43, 22 L. R. A. 263. So a mere reduction from the established rate is not necessarily an unjust discrimination.25 But it becomes such when it is either intended or has a natural tendency to injure another shipper in his business and destroy his trade by giving to the favored shipper a practical monopoly of the business.26 A discrimination, however, made merely upon the amount of freight furnished, and which results in giving to the large shipper an advantage over the smaller is not reasonable;27 partiality is inoffensive, and partiality exists only in cases where advantages are equal, and one party is unduly favored at the expense of another who stands upon an equal footing. Many English cases support this general doctrine. Garton V. Railway Co., 1 Best & S. 110; Hozier v. Railway Co., 1 Nev. & McN. 29; Railway Co. v. Sutton, L. R. 4 H. L. 238; Ransome v. Railway Co., 1 C. B. (N. S.) 437; Jones v. Railway Co., 1 Nev. & McN. 45; Oxlade v. Railway Co., id. 72; Baxendale v. Railway Co., 5 C. B. (N. S.) 336; Bellsdyke Coal Co. v. North British Ry. Co., 2 Nev. & McN. 105. The current of judicial opinion in America flows in the general channel marked out and opened by the courts of England." 23. Scofield v. Railway Co., 43 Ohio St. 571; Christie v. Railway Co., 94 Mo. 453; Fitchburg R. R. Co. v. Gage, 12 Gray, 393; Hoover v. Railroad Co., 156 Pa. St. 220, 27 Atl. Rep. 282, 36 Am. St. Rep. 43, 22 L. R. A. 263, citing Hutchinson on Carr.; Langdon v. Railroad Co., 9 N. Y. Supp. 245. 25. Christie v. Railway Co., 94 Mo. 453, and cases above cited. 26. This was the leading question in Scofield v. Railway Co., 43 Ohio St. 571, and is fully treated. See also, Railroad Co. v. Wilson, 132 Ind. 517, 32 N. E. Rep. 311, 18 L. R. A. 105; s. c. 119 Ind. 353, 21 N. E. Rep. 341. 27. Scofield v. Railway Co., 43 Ohio St. 571; Hays v. Pennsylvania Co., 12 Fed. Rep. 309; Kinsley v. Railroad Co., 37 Fed. Rep. 181; Railroad Co. v. Wilson, 132 Ind. 517, 32 N. E. 311, 18 L. R. A. 105; s. c. 119 Ind. 353, 21 N. E. Rep. 341. But a common carrier by water may offer a reduced rate to one in consideration of his shipping all his goods by such carrier's line for a specified time, if it offers the neither is a discrimination, having practically the same result, giving to a shipper transporting oil, in his own car, a preference in rates over one who ships in barrel.28 So, obviously, a secret rebate allowed to certain shippers is an unjust discrimination against others shipping like goods under the same circumstances. And the excessive charges to the shippers discriminated against, paid by them without knowledge that they are in excess of those charged other shippers, and in reliance upon the representation of the carrier that all the charges are uniform, are not voluntarily paid and may be recovered from the carrier.29 Sec. 522. (§ 303.) Same subject-The English rule. The practice of giving preferences to certain individuals as to the time of forwarding their goods by railroad companies in England, which, it seems, enjoy almost a monopoly of the carrying business in that country, became a grievance there,30 which was put a stop to by their Railway and Canal Traffic same terms to all, and will transport goods for a reasonable price for such persons as are not willing to agree to such condition. Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. Rep. 292, 42 Am. St. Rep. 712, 25 L. R. A. 674, affirming 22 N. Y. Supp. 976. 28. State v. Railway Co., 47 Ohio St. 130, 23 N. E. Rep. 928. 29. Cook v. Railway Co., 81 Iowa, 551, 46 N. W. Rep. 1080; Railroad Co. v. Wilson, 132 Ind. 517, 32 N. E. Rep. 311, 18 L. R. A. 105; s. c. 119 Ind. 353, 21 N. E. Rep. 341; Cowden v. Pacific Coast S. S. Co., 94 Cal. 470, 29 Pac. 873, 28 Am. St. Rep. 142, 18 L R. A. 221. This right is given by the common law independent of any statute. Murray v. Railway Co., 92 Fed. 868, 35 C. C. A. 62, affirming 62 Fed. 24. A railroad company is not war ranted in making a contract whereby it binds itself to carry for one shipper crude petroleum or other articles at half the rate it agrees to charge all others for the same service, at the same time and as part of the agreement binding itself to charge all others dou. ble the amount as a fixed open rate, and to pay such favored shipper one half of it when collected in consideration of his agreeing to establish and maintain a system of pipe lines to its road. Money so paid by a shipper in ignorance of the agreement and received by the favored shipper may be recovered back in an action for money had and received by the former against the latter. Brundred v. Rice, 49 Ohio St. 640, 32 N. E. Rep. 169, 34 Am. St. Rep. 589. 30. Parker v. Railway Co., 7 M. & Gran. 253. Act (1854), to which reference has already been made.31 One of the sections of this act prohibited such companies from making or giving any undue or unreasonable preference or advantage to or in favor of any particular person or company 31. This act has been interpreted to apply to preferences in the rates charged for the service of carrying as well as to other preferences or advantages, but not to prohibit just and reasonable discriminations in that respect. Although the purpose of the act is to prevent, among other things, unreasonable discrimination in rates to the prejudice or disadvantage of particular individuals, it was not, it has been said, to relieve every person from all possible prejudice or disadvantage from any arrangement which might be made by the carrier, if the arrangement was for the benefit of the public at large, for the reasonable increase of the business and profits of the carrier, and was not entered into with a view to the advantage or preference of one party or disadvantage of the other. Hence it has been held legal, under the provisions of the act, to carry at a less rate for such persons as would guaranty large quantities of the same kind of freight than for those who could not give such guaranty. So when the quantity of goods furnished for carriage was sufficient to employ an entire train instead of a portion of it, or the carriage was for a greater distance, or was upon a through train requiring no stoppages, or upon a train run at a regular time, according to the course of the business of the carrier, and not upon an irregular one run out of the due course, or where the quantity carried for the one customer is larger than that carried for another, the carrier will be justified in charging proportionately less than when the distance or quantity is less, or the trip out of due course, or at an irregular time. Or he may class his trains or his vehicles according to the accommodations afforded or their speed, and vary his charges accordingly. So the courts will not interfere if the charge or arrangement will greatly promote the interest of the carrier without unreasonably prejudicing those who may desire to employ him, or will be beneficial to the community, though disadvantageous to particular individuals. And he may charge more for small parcels in proportion to weight than for larger ones of the same commodity, by reason of the greater proportionate trouble and their greater exposure to loss and theft. But though the court, when such a question is brought before it under the statute, it is said, will feel great reluctance in interfering with the carrier in the management of his own business, and his interest must be taken into the account, yet if the discrimination made by him subjects others to unreasonable disadvantages, will interfere and enjoin the carrier from making such preferences. And so it will if the object of the carrier is not solely his own advantage, but also to give it |