even though the carrier has quoted to the shipper a different rate, in good faith, upon which the shipper has acted. "The practical hardship of this rule is illustrated by the last case in which it was applied by that court. Texas and Pacific Railway Company v. Mugg, 202 U. S. 242, 50 L. Ed. 1011, 26 Sup. Ct. 628. Here the plaintiff applied for a rate on coal from a point in Arkansas to a point in Texas and was quoted a rate of $1.25 upon one kind and $1.50 upon another. Upon the strength of this quotation he made sale of three carloads for a delivered price at the Texas point. In fact, the published rate was $2.75 upon one kind and $2.85 upon the other, and the shipper was obliged to pay upon the arrival of the coal in Texas $140.18 more than would have been due under the rates quoted. This converted the transaction from a profit to a loss, and his suit was to recover damages thus occasioned. The court, as has been said, held that no recovery could be had." It is undoubtedly true that shippers ordinarily do not know and it would sometimes take an expert to find out what a particular rate is, and, therefore, reliance must be had on the information furnished by the agents of the carriers. The Commission points out the evil, but suggests no remedy. It would probably be an effective remedy to allow the Commission to award reparation in such cases as it might find were based upon an honest mistake of the carrier. The Commission would be able to prevent the evils that Mr. Commissioner Harlan points out; and, if necessary to prevent discrimination, the rate mistakenly given might be open to all who ship contemporaneously with the shipper who relied on the misquoted rate. The Act of 1910 prescribing a penalty for misquoting a rate under certain prescribed conditions makes it illegal to misstate a rate. This provision, taken in connection with Section 8 of the Act, presents a situation different from that existing prior to this Amendment and now, when the amended provision is violated, it is believed that a shipper may recover his damages.185 185 Secs. 459 and 473, post, and St. Louis S. W. Ry. Co. v. Lewellen Bros., 192 Fed. 540. § 191. Different Rates over the Same Line in Opposite Directions. In the case of Duncan v. Atchison, T. & S. F. Ry. Co.,186 the Commission said: "The complainant was not discriminated against in being allowed on his shipments west, to Los Angeles, the lowest available rate, and there was no discrimination against him. on his shipments east to Louisville, as he was charged the general rate exacted of all shippers. His complaint in reference to the disparity between the rates charged him on his east and west bound shipments, respectively, is not properly one of unjust discrimination under the third section of the act to regulate commerce, but rather calls in question the reasonableness of the higher rate. The claim is in substance, that the rate of $350 eastward is unreasonable in view of the fact that the rate over the same line and between the same points westward is only $263. This fact alone is relied upon to support the charge. The two rates have no necessary connection or relation, and the fact that a rate over a road or line in one direction is materially higher than the rate on the same class of traffic over the same road or line and between the same points in the opposite direction does not, as in the case of hauls over the same line in the same direction, establish prima facie the unreasonableness of the higher rate. This would appear to be especially true where the hauls are of as great length as those now under consideration. It is moreover in evidence, as remarked above, that the "westbound movement of the traffic termed 'emigrants' movables' is double the east-bound movement, and the goods shipped west as 'emigrants' movables' are 'materially lower in value' than those shipped east. It may be conceded that the much greater volume of the traffic moved west than east is to some extent attributable to the lower rate west, but the tide of emigration is naturally from a comparatively old and thickly populated country like the east to a new and sparsely settled country like the west. No evidence as to the unreasonableness of this rate in itself has been offered." This ruling has been repeated several times by the Commission. In the Duncan case, supra, the facts of the case 186 Duncan v. Atchison, T. & S. F. R. Co., 6 I. C. C. 85, 4 I. C. R. 385. showed a much heavier movement of the goods transported under the shipment there in controversy towards the west than towards the east. This fact is one of the causes that affects rates and may always be considered. The amount of traffic of a particular kind that moves in a particular direction may properly constitute a different circumstance and condition. The conclusion of the Commission was correct, but what was there stated should not be accepted as a general rule. If the movement both ways is practically equal and there are no other differentiating circumstances, the fact that a rate over a road or line in one direction is materially higher than the rate on the same class of traffic over the same road or line and between the same points in the opposite direction does, as in the case of hauls over the same line in the same direction, establish prima facie the unreasonableness of the higher rate. The facts in the MacLoon case,187 while stated by the Commission to be practically the same as in the Duncan case, do not so clearly support the holding as did the facts in the last-named case. There was no evidence as to the relative amount of traffic each way and the accommodations seemed to have been practically the same. The charge was greater going west than going east. This case would indicate a disposition on the part of the Commission to make it a general rule that there is no relation between traffic in opposite directions over the same route. In later cases,188 the MacLoon case is cited and followed. It will be conceded that circumstances may exist justifying a difference in rates over the same line in opposite directions; but, in the absence of proof of such circumstances, such difference is evidence of unjust discrimination, and requires explanation.189 187 MacLoon v. Boston & M. R. Co., 9 I. C. C. 642, 645. 188 Hewins v. New York, N. H. & H. R. Co., 10 I. C. C. 221, 224; Hull Vehicle Co. v. S. Ry. Co., 28 I. C. C. 619; Cadillac Lumber Ex. v. V. A. R. R. Co., 43 I. C. C. 636; Little Rock Freight Bureau v. Mo. Pac. Ry. Co., 51 I. C. C. 23. 189 Int. Com. Com. v. Louisville & N. R. Co., 118 Fed. 613, 623; Weil v. When the necessity arises, as it frequently does, for the making of rates between different rate-making territories, where differences in the manner of distributing the general rate burden with consequent differences in rate levels are encountered, the question sometimes develops as to the propriety of measuring the interritorial rates by the rates in the destination territory in order to prevent the erection of an artificial barrier against the free movement of traffic. To observe the level of rates prevailing in the destination territory in such cases generally necessitates the making of different rates on the same traffic moving in opposite directions over the same lines of railroad. The propriety of such practice has not been fully and finally settled, the Interstate Commerce Commission having rendered conflicting decisions relative thereto. In some cases, rates northbound on a lower basis than those southbound have been sanctioned by the Commission, while in other cases such a relationship in rates has been disapproved.190 § 192. Discrimination by Granting Free Service. Free tickets, fares, passes, or free transportation for passengers are prohibited, with certain exceptions, by paragraph (4) of Section 1 of the Interstate Commerce Act as amended by the Act of April 13, 1908.191 The provisions requiring the tariff rates to be charged and collected would prevent the free transportation of property, except such as may be had under Section 22 of the Act. The purpose and history of these provisions of the law are given by the Commission in an investigation of the subject of granting passes in Colorado and Montana. In the report of this investigation, it was held that to grant an interstate shipper an intrastate pass violates the Act and prosecutions were recommended. It was also shown that a free pass dissipates revenues and when carriers seek rate advances this fact is proper to be considered. 192 190 American Distilling Co. v. A., C. & Y. Ry. Co., 140 I. C. C. 633; Hay, Straw and Excelsior, 146 I. C. C. 664; Hosiery from Southern Points, 156 I. C. C. 117; Pig Iron from Southern Points, 159 I. C. C. 671. 191 Sec. 408, post. 192 Re Issuance and Use of Passes, 26 I. C. C. 491; Re Issue and Use of Passes (Montana Situation), 29 I. C. C. 411. In the Mottley case, ,193 the Supreme Court had for determination the validity of a contract for transportation made by Mottley in consideration of the settlement of his claim for damages. The contract, although made prior to the statute prohibiting free passes, was held void, the court saying: "The passenger has no right to buy tickets with service, advertising, releases or property, nor can the railroad company buy services, advertising, releases or property with transportation. The statute manifestly means that the purchase of a transportation ticket by a passenger and its sale by the company shall be consummated only by the former paying cash and by the latter receiving cash of the amount specified in the published tariffs." While such a contract cannot be specifically enforced, if valid when made, the holder, after the law has prevented its enforcement, may recover damages for its breach.194 Although the decisions are not uniform and the Supreme Court has not yet decided the question, it would seem that in a suit by a carrier for freight charges the shipper could, by plea in recoupment, recover damages for loss or injury to the property shipped." 195 § 193. Basing Points, Group Rates and Zone Rates.-In discussing the reasonableness of rates herein, the questions of basing the rate of one locality on that of another, grouping territory and giving the whole group the same rate, and making rates to or from particular zones were discussed.196 The description of such systems of rate-making there given need not be here repeated. It was there seen that discrimination could result from such practices, and it is obvious that either of the systems may be so applied as unduly to discriminate for or against a particular locality. But it was shown that 193 Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 477, 55 L. Ed. 297, 31 Sup. Ct. 265, 34 L. R. A. (N. S.) 671; Tripp v. M. C. R. Co., 238 Fed. 449, 455, 151 C. C. A. 385. 194 New York C. & H. R. R. Co. v. Gray, 239 U. S. 583, 60 L. Ed. 451, 36 Sup. Ct. 176; Irvin v. Postal Tel. & Cable Co., 173 Pac. 487. 195 Wells Fargo & Co. v. Cuneo, 241 Fed. 727, 730. Contra, JohnsonBrown Co. v. V. V. L. & W. R. Co., 239 Fed. 590, and cases cited 592. 196 Sec. 115, ante. |