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ceipts. 42 Owing to the fact that local traffic is light in volume, short in haul and small in individual shipments, the cost of transportation may be, in relation to income, at least twice as great for local business as for the entire business of the carrier.43

Sec. 586.-Effect of connecting and branch lines in determining the reasonableness of a rate.-The fact that a line of railroad is operated in connection with other lines owned by the same company, but under separate charters, whereby the earnings of such line are increased and its operating expenses reduced, does not prevent its being considered as a separate and independent line for the purpose of determining the reasonableness of rates thereon fixed by the state; full consideration of the joint operation being given when the road is credited for the increased business and reduced expenses.44

But where there has been a consolidation of several railroads into one, the correct test as to the effect of a state statute regulating rates is as to its effect on the entire line and not upon that part which was formerly a part of one of the consolidating roads; the company cannot claim the right to earn a net profit from every mile, section or other part into which the road might be divided, nor attack as unjust a regulation which fixed a rate at which some such part would be unremunerative, for it would be practically impossible to ascertain in what proportion the several parts should share with others in the expenses and receipts in which they participated. To the extent that the question of injustice is to be determined by the effects of the act upon the earnings of the company, the earnings of the entire line must be estimated as against all its legitimate expenses under the operation of the act within the limits of the state in question.45

When any feeder or extension portion of a railroad line or

42. Railway Co. v. Tompkins, 176 U. S. 167, 20 Sup. Ct. R. 336, 44 L. Ed. 417, reversing 90 Fed.

363.

47.

44. Railroad Co. v. Brown 123 Fed. 946.

45. Railway Co. v. Gill, 156 U. S. 649, 39 L. Ed. 567, 15 Sup. Ct.

43. Railway Co. v. Keyes, 91 Fed. R. 484, affirming 54 Ark. 101, 15

S. W. Rep. 18.

system is an incumbrance on the rest of the line or system, so that the rest of the line or system would at the same rates produce more net income if such portion did not exist (that is, if all the gross earnings on all the traffic passing over such portion, and on the whole length of the haul on such traffic, will not pay the operating expenses on such traffic for the whole length of such haul, and pay for the wear and tear on the line or system caused by such additional traffic, and also pay a reasonable income on the cost of reproducing such portion of the line), and these conditions are not of a temporary character, but are the result of building the feeder or extension where there was not sufficient business to justify its existence, then such portion of the line is not self-supporting, but is an incumbrance on, and not a feeder of, the rest of the line or system, and in determining what are reasonable rates for the rest of the line or system, such portion may be rejected. And under the statute the burden is on the railway company to show that such extension is self-supporting.46

Sec. 587. A rate, though reasonable, should not tend to create a monopoly.-A railroad commission, in making rates, may properly bear in mind that the probable effect of a certain rate would be the creation of a monopoly to the detriment of the public. Thus the owners of improved machinery for ginning and baling cotton have a right to all the benefits of its superiority over the old machinery, but they have no right to a lower rate on their cotton because it is compressed into smaller round bales than other cotton which is shipped, nor have they any right to ask the government to lend its power to their aid in that respect to the injury of the citizenship of the state.47

Sec. 588. Discrimination to be actionable must be unjust.— Under the state statutes discrimination alone does not subject the railway company to the statutory penalty. The discrimination must be unjust and wilfully made under like circumstances

Weld & Neville, 96 Tex. 394, 73 S. W. 529, reversing 68 S. W. Rep. v. 1117.

46. Steenerson v. Railway Co., 69 Minn. 353, 72 N. W. Rep. 713. 47. Railroad Commission

and conditions.48 Thus the mere fact that a railroad company charges one person more than another for carrying coal from the same place is not conclusive evidence of unjust discrimination where it is shown that there is a difference in the coal, and in the method of handling it.49

At common law, and usually under state statutes, the party complaining is required to show that a discrimination was unjust and unreasonable,50 but under some state statutes the burden of proof is upon the carrier to show that it was reasonable and just.51

Sec. 589. A special rate is not always unjustly discriminative. A contract by a railroad company to carry freight for a shipper at a special rate, less than its published schedule, is not prima facie void either under the common law or under the provision in the constitution of a state forbidding undue or unreasonable discrimination in freight charges by railroads, in the absence of evidence that such rate is a special privilege.52 But where a lower rate is given by a railway to a favored shipper, which is intended to give, and necessarily gives, an exclusive monopoly to the favored shipper, affecting the business and destroying the trade of other shippers, the latter have the right

48. Louisville & N. R. Co. v. Commonwealth, 20 Ky. L. Rep. 1099, 48 S. W. Rep. 416; Commonwealth v. Chesapeake & O. Railway Co., 24 Ky. L. Rep. 1887, 72 S. W. Rep. 758; Railway Co. v. Langsdale, (Tex. Civ. App.) 30 S. W. Rep. 681.

The word "contemporaneous" as used in the North Carolina statute does not mean the exact day, hour, or necessarily month, but it means a period of time through which the shipment of goods or freights is made by one shipper at one rate, and by other shippers at another rate. Hilton Lumber Co. v. Railroad Co. N. Car.

53 S. E. Rep. 823.

49. Savitz v. Railway Co., 150 Ill. 208, 37 N. E. Rep. 235, affirming 49 Ill. App. 315; Commonwealth v. Louisville & N. R. Co., 24 Ky. L. Rep. 509, 68 S. W. Rep. 1103; Railroad Co. v. Crown Coal Co., 43 Ill. App. 228.

50. Hilton Lumber Co. v. Railroad Co., N. Car. 53 S. E. Rep. 823.

51. Railroad Commission บ. Weld & Neville, 96 Tex. 394, 73 S. W. 529, reversing (Tex. Civ. App.) 68 S. W. Rep. 1117.

52. Railway Co. v. Bayles, 19 Colo. 348, 35 Pac. Ry. 744; s. c. Bayles v. Railway Co., 13 Colo. 181, 22 Pac. Rep. 341.

to require an equal rate for all under like circumstances.53. The privilege, however, of asking for an equal rate for all under like circumstances, and demanding a similar rebate for one's self are separate and distinct and a shipper cannot recover for unjust discrimination by a railroad consisting in refusing him a rebate. upon the established rate which it allowed others.54 A discriminative overcharge, of course, stands in a different light, and may be recovered back by the shipper in an action against the railroad company for money had and received.55

Sec. 590. A "rebilling" rate may be discriminative.—Unjust discrimination may be in the form of what is known as a "rebilling" rate. "A true rebilling rate is one in which the goods received in unbroken car load lots over one line of railway can be rebilled over the same or another line, completing one continuous trip of the same commodity, simply changing the consignee, and altering the destination of the identical shipment, without unloading or handling of freight." Such a rate, to receive the sanction of law, must operate uniformly and fairly, and must be open to all alike. It cannot lawfully be restricted to shippers who live in a certain locality, and who previously receive freight over the line of a certain other favored associated carrier.1

Sec. 591. Free passes are discriminative.-The issuance of free passes except in specified cases is contrary to a number of

53. Scofield v. Railway Co., 43 Ohio St. 571, 3 N. E. Rep. 907; Railroad Co. v. Diamond Coal Co., 61 Ohio St. 242, 55 N. E. 616; State v. Atlantic Coast Line R. Co., Fla., 40 So. Rep. 875.

54. Railway Co. v. Langsdale, (Tex. Civ. App.) 30 S. W. Rep. 681.

55. Hilton Lumber Co. v. Railroad Co., N. Car. 53 S. E Rep. 823, citing Railroad Co. v. Steiner, 61 Ala. 559. See also, American Express Co. v. Crowley,

Miss., 41 So. Rep. 261. 1. Railway Co. v. Railroad Com

mission of Mississippi, 86 Miss. 667, 38 So. Rep. 356.

A common carrier has no right to charge one person a lower rate of freight than another for shipping the same class and quantity of goods the same distance, under the same conditions, providing the favored shipper give the carrier a consideration in the shape of subsequently shipping the manufactured product over its line. Hilton Lumber Co. r. Railroad Co., 136 N. C. 479, 48 S. E. Rep. 813; s. c. N. C. 53 S. E. Rep. 823.

state statutes. In North Carolina it has been held that a person riding on such a pass unlawfully cannot recover for injuries received through the negligence of the carrier, since he is in pari delicto with the carrier.2

Sec. 592. An extra charge may be made for a shipment received off the carrier's own line.-When a contract of affreightment is made between a railroad company and a shipper contemplating transportation over its own line only, and the goods are, in fact, afterwards delivered by the shipper to the railroad on the line of another company, necessitating the payment by the first company of the latter's local freight charges in order to switch the cars containing the goods to its own line, the imposition of such additional switching charges in addition to the contract price does not constitute undue discrimination.3

Sec. 593. Discrimination in transfer of stock from narrowgauge to standard-gauge cars. If a uniform rule, not unreasonable in itself, is adopted for the fixing of rates on cattle transferred from narrow-gauge cars to standard-gauge cars, such as to charge at the rate of three narrow-gauge cars for two standard-gauge ones, the shipper cannot complain that he is charged in excess of the tariff rates, if he knew of such rule, and in a particular case the standard-gauge railroad found that it could, and did, place the cattle in a less number of standardgauge cars than he had receipted for.4

Sec. 594. Right of carrier to recover from shipper the difference between the discriminative and regular rate. If a carrier makes an unlawful discrimination under a state statute in favor of a shipper by contracting to carry his goods at a lower rate than they should bear, and accepts the goods and carries them at that rate, it cannot, after the goods have reached their destination, charge against them an additional amount of

2. McNeill v. Railroad Co., 132 N. C. 510, 44 S. E. Rep. 34, 95 Am. St. Rep. 641; State v. Southern Railway Co., 122 N. C. 1063, 30 S. E. Rep. 133, 41 L. R. A. 246.

3. Gilliland v. Railroad Co., 81 Miss. 41, 32 So. Rep. 916.

4. Carlisle v. Railway Co., 97. Mo. App. 571, 71 S. W. Rep. 475.

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