A carrier will not be permitted to unjustly discriminate as to rates.Root v. L. I. R. Co., 114 N. Y. 300, 21 N. E. 403, 4 L. R. A. 331n; State v. Atlantic C. L. R. Co., Fla. 44 So. 213; McDuffee v. Portland

& R. R. Co., 52 N. H. 430.

At common law, and also under the N. Y. Railroad Law, a carrier could not unreasonably or unjustly discriminate between persons whose property was offered for transportation, but was bound to deal with them all substantially alike.- People ex rel. Ohlen v. N. Y. L. E. & W. R. Co., 22 Hun (N. Y.), 533.

At common law, a carrier need not treat all customers equally, but may favor individuals as he pleases, providing he does not charge any one more than is reasonable.- Cowden v. Pacific Coast Ss. Co., 94 Cal. 470, 29 Pac. 873, 18 L. R. A. 221.

At common law, rates must be reasonable, but not necessarily equal. -Johnson v. Pensacola & P. R. Co., 16 Fla. 623.

A railroad company, though permitted to establish its rates of transportation, must do so without injurious discrimination as to individuals. It must deal fairly by the public, and this it would not be doing if allowed so to discriminate as to build up the business of one person to the injury of another in the same trade.- Chicago & N. W. R. Co. v. People, 56 Ill. 365.

Carriers cannot legally make unequal and extravagant charges.New Eng. Exp. Co. v. Me. C. R. Co., 57 Me. 188.

At common law a common carrier is not obliged to transport goods and merchandise for all persons at the same rates.- Fitchburg R. Co. v. Gage, 12 Gray (Mass), 393.

A carrier is bound to observe strictly the principle of equality in the conduct of its business.- State ex rel. Atwater v. D. L. & W. R. Co., 48 N. J. L. 55, 2 Atl. 803.

Regardless of statute, a carrier is charged with the duty to transport merchandise for all parties on equal terms, where the carrying for some shippers at a lower price than for others will create monopoly by injur ing or destroying the business of those less favored.- Scofield v. L. S. & M. S. R. Co., 43 Oh. St. 571, 3 N. E. 907.

In dealing with the public, a carrier must at all times act upon the rule of equality.- Houston & T. C. R. Co. v. Smith, 63 Tex. 322.

[2] Discretion of carrier in fixing rates.

Discretion in fixing export rates,- see post, note [69].

The Interstate Commerce Commission has, as a rule, approved a reasonable differential between any raw material and the manufactured product, but where the amount of labor, increased value and extra risk

are so comparatively insignificant as upon grain whole and grain ground, and wherever the carrier has seen fit to waive its privilege of a slightly advanced rate for the carriage of the product, and the rate on the raw material is reasonably low, Commission will not interfere with that discretion. Matter of Rates on Corn & Corn Products, 11 Inters. Com. R. 227.

In fixing rates for differing but analogous services, the carrier has the right to exercise an honest discretion.- Carr v. No. Pac. R. Co., 9 Inters. Com. R. 1.

[3] "Unlawful discrimination” defined.

A railroad has a right, in the absence of statute, to charge less than the published tariff, unless such rate is given exclusively to one shipper, or denied to other shippers. It is the granting of the lower rate to one and denying it to another which constitutes unlawful discrimination.Christie v. Mo. Pac. R. Co., 94 Mo. 453, 7 S. W. 567.

To charge a shipper a rate less than the regular fixed rate is not discrimination, at common law. Charging one shipper a rate higher than that charged any one else, is discrimination.- McNees v. Mo. Pac. R. Co., 22 Mo. App. 224.

[4] Not all discriminations unlawful.

When commissions will intervene,- see post, § 32, note [8].

It is proper, and lawful, under Interst. Com. Act, § 3, to give a preference or advantage, or to discriminate between persons, localities, or traffics, provided such preferences or discriminations be not undue or unreasonable. Interst. Com. Commission v. Ala. Mid. R. Co., 168 U. S. 144, 18 Sup. Ct. R. (U. S.) 45, affg. s. c. 74 Fed. 715, 69 Fed. 227; Cincinnati, N. O. & T. R. R. Co. v. Interst. Com. Commission, 162 U. S. 184, 16 Sup. Ct. R. (U. S.) 700; Interst. Com. Commission v. Ch. G. W. R. Co., 141 Fed. 1003.

Mere inequality of charge does not constitute undue or unreasonable preference or advantage.- Interst. Com. Commission v. Chicago G. W. R. Co., 141 Fed. 1003.

Only unreasonable discriminations are unlawful.- Commercial Assn. v. L. & N. R. Co., 12 Inters. Com. R. 436.

If rates complained of are not proved to be unduly discriminative, the Interstate Commerce Commission cannot reduce them unless it deems them unreasonable in themselves.- Commercial Assn. v. L. & N. R. Co., 12 Inters. Com. R. 436.

Not every inequality in rates is a discrimination, nor is every discrimination unlawful.- Commercial Club v. Ch. & N. W. R. Co., 7 Inters. Com. R. 387.

Only unjust, unfair or oppressive discriminations are contrary to public policy. Cleveland, C. C. & I. R. Co. v. Closser, 126 Ind. 348, 26 N. E. 159, 9 L. R. A. 754n.

A Pennsylvania statute prohibiting discriminations in rates and fares, prohibits only such discriminations as are unjust and unreasonable.- Hoover v. Pa. R. Co., 156 Pa. 220, 27 Atl. 282, 22 L. R. A. 263. Discriminations are unlawful, at common law, only when inconsistent with the public interest.- Ragan v. Aiken, 77 Tenn. 609.

[5] Whether mere making of rate constitutes discrimination.

A carrier cannot be said to be demanding, charging or collecting rates in violation of law until it has put the same into effect.- Jewett v. Ch. M. & St. P. R. Co., 156 Fed. 160.

The mere making or offering of a discriminatory rate, under which it is not shown that a shipment was ever made, does not constitute a legal and actionable injury to a shipper, under the Interstate Commerce Act.Lehigh V. R. Co. v. Rainey, 112 Fed. 487.

To constitute a discriminative charge punishable by penalties, it is not necessary that it should have been paid; it is enough if it has been made.- Hines v. Wilmington & W. R. Co., 95 N. C. 434.

[6] Necessity for tangible injury.

In cases of discrimination in service or facilities,- see post, § 32, note [4].

That the person discriminated against is not directly injured does not justify a discrimination.- Kindel v. A. T. & S. F. R. Co., 8 Inters. Com. R. 608.

Proof of tangible injury must be shown to make the preference or prejudice arising from a group rate unreasonable or undue.- Milk Prod. P. Assn. v. D. L. & W. R. Co., 7 Inters. Com. R. 92; Imperial Coal Co. v. Pittsburg & L. E. R. Co., 2 I. C. C. C. R. 618, 2 Inters. Com. R. 436.

Prejudice and advantage are undue and unreasonable only when they inflict some injury on the complaining party. Without such proof, mere advantage in rates in ratio to distance is not necessarily unlawful.-— Howell v. N. Y. L. E. & W. R. Co., 2 Inters. Com. R. 162, 2 I. C. C. R. 272.

[7] Whether there must be injury to complainants.

The absence of actual prejudice to the complainants does not excuse rates which otherwise violate Inters. Com. Act, § 2.- Capital C. G. Co. v. Central Vt. R. Co., 11 Inters. Com. R. 104.

[8] Carrier bound by acts of agents.

A carrier is bound by the acts of its depot agent in giving rates.Southern R. Co. v. Anniston, F. & M. Co., 135 Ala. 315, 33 So. 274.

The receipt of goods marked for a particular destination beyond the terminus of the receiving carrier's line, without an express undertaking to do more than transport to that terminus and deliver to the connecting carrier, does not make such initial carrier bound by the statement of its local station agent as to the rates to be charged over the connecting lines. -McLagan v. Ch. & N. W. R. Co., 116 Iowa, 183, 89 N. W. 233.

[9] Divisibility of contracts.

Where a contract for shipment of coal contains a clause void for giving discriminatory rates and also a clause apparently valid, the court will not enforce the latter where the apparent intent of the whole was to create a monopoly.- Burlington, C. R. & N. R. Co. v. Northwestern F. Co., 31 Fed. 652.

[10] Joint and several responsibility of carriers.

It is the duty of a connecting carrier to transport cars delivered to it by initial carriers, and it is not rendered liable for an alleged wrongful act of the initial carrier merely because of the adoption of a joint through rate.— Penn Refining Co. v. W. N. Y. & P. R. Co., 208 U. S. 208, 28 Sup. Ct. R. (U. S.) 268, affg. s. c. 137 Fed. 343.

It is not essential to the commission of the offense of giving a concession from a through rate over connecting lines of railroad that the rate be a joint one established by all the carriers and filed with the Interstate Commerce Commission. If an initial carrier accepts traffic for transportation and issues its bill of lading over a route made up of connecting roads for which no joint through rate has been published and filed, the lawful through rate to be charged is the sum of the local and joint rates.- Chicago, B & Q. R. R. Co. v. U. S., 157 Fed. 830.

Each carrier which is a member of a through line which gives an unfair and oppressive joint rate, is severally as well as jointly responsi ble. Interst. Com. Commission v. L. & N. R. Co., 118 Fed. 613.

[11] Shipper may not rely on statements of carriers' agents as to rates.

A shipper is charged with knowing the lawful rate, if it has been duly published. U. S. v. Standard Oil Co., 155 Fed. 305.

Shippers and consignees cannot rely, for the lawful rate or charge, on what is quoted to them by the carriers' agents, but must be guided by the published rate sheets.- Suffern, H. & Co. v. Indiana, D. & W. R. Co., 7 Inters. Com. R. 255.

[12] Secrecy of rate not test of lawfulness.

A special rate does not become unlawful merely because the public has no notice thereof.- Hoover v. Pa. R. Co., 156 Pa. 220, 27 Atl. 282, 22 L. R. A. 263.

[13] Validity of bill of lading as affected by giving of rebates.

The giving of an unlawful rebate by a carrier does not invalidate the bill of lading under which the shipment was made so as to exempt the carrier from liability for loss of or injury to the goods shipped.- Merchants' Cotton Press Co. v. N. A. Ins. Co., 151 U. S. 368, 14 Sup. Ct. R. 367, affg. s. c. 91 Tenn. 537, 19 S. W. 755.

[14] General rules and principles.

The words "undue" or "unreasonable" preference or advantage necessarily involve the idea or element of comparison of one service or traffic with another similarly situated and circumstanced, and require that, to be undue and unreasonable, the preference or prejudice must relate and have reference to competing parties, producing between them unfairness and an unjust inequality in the rates charged them, respectively, for contemporaneous service under substantially the same circumstances and conditions. In determining the question whether rates give an undue preference or impose an undue disadvantage, consideration must be had to the relation which the persons or traffic bear to each other and to the carrier.-Interst. Com. Commission v. B. & O. R. Co., 43 Fed. 37; affd. 145 U. S. 263, 12 Sup. Ct. R. (U. S.) 844.

Rates cannot be adjudged in exact mathematical relation.— National Hay Assn. v. L. S. & M. S. R. Co., 9 Inters. Com. R. 264.

Whether given rates violate the provisions of the Interstate Commerce Act is a question of fact.- Export & Domestic Rates, 8 Inters. Com. R. 214.

Differences in rates are discriminatory, unless justified by the carrier. -New York Board of Trade v. Pa. R. Co., 2 Inters. Com. R. 660, 734, 755, 800, 4 I. C. C. R. 447.

Rates cannot be continually readjusted to equalize fluctuating market conditions. Squire v. Mich. Cent. R. Co., 2 Inters. Com. R. 303, 484, 3 Inters. Com. R. 515, 4 I. C. C. R. 611.

What is an unjust discrimination is a question of fact determinable from all the circumstances of the case.- Root v. L. I. R. Co., 114 N. Y. 300, 21 N. E. 403, 4 L. R. A. 331n.

[15] Ownership of freight as affecting duty of carrier.

As a condition of giving a carload rate, carriers may require that the goods shall be loaded at one time and place, that but a single bill of