Topic C. Established Exceptions to Rule § 636. Public wrong in giving free passes. 639. Whether statutory exceptions are exclusive. 647. No obligation to grant such concessions. 648. Collateral results of illegal discrimination. Topic D. Other Considerations for Reductions § 649. Other consideration formerly considered dissimilar circumstance. 650. Whether indefinite considerations can be a basis. 651. Concessions to those who deal with the carrier. 652. Fostering the interests of the carrier. § 610. Provisions of the Act. One of the chief objects of the passing the original Act was to make it clear that discrimination between persons shipping goods under like conditions was illegal. At that time the decisions in the courts of the States were in conflict; and it was even doubtful whether there was any rule generally applicable against rebating in the case of interstate shipments. Every addition since that time to the law has been in the line of additional remedies to prevent rebating; but the rule against it was made plain enough in the original Act, section 2, which, together with certain clauses in section 3 hereafter discussed, relate particularly to discrimination between shippers. This section provided in sweeping terms that if any common carrier subject to the provisions of this Act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this Act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carriers shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful. There are specific provisions of the older section 22, and the newer paragraph added to section 1, relating to free transportation or carriage at reduced rates for certain classes or purposes in the case of persons and goods. Generally speaking, such concessions may still be made for governmental purposes and other community interests. And free passes may, furthermore, still be given by carriers to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law; and free transportation may also be interchanged between officials of companies subject to the Act. What in general is held to constitute illegal discrimination under the Act, and the machinery put at the disposal of the Commission to stamp it out, is discussed at large throughout the four chapters immediately following. § 611. Development of the rule against discrimination. The fundamental limitation upon the charges of a common carrier, that they shall be in no respect unreasonable, has just been discussed with much detail. But a further requirement of the public service law governing the rates of the common carrier remains to be considered, and that is the more modern requisite that rates shall be in no respect unjustly discriminatory. It must be plain to all who have followed the course of events with the least attention that there has been distinct evolution in the law governing public employment during the last twentyfive years. The rule against discrimination is the most recent development in the definition of public duty. A comparatively few years ago it was held that if a public service company served at reasonable rates it performed its obligation; but modern industrial conditions require the further law that it shall serve with equality. The statement that one is a common carrier, ex vi termini, imports a duty to the public, and a corresponding legal right in the public, a right common to all. One of the duties imposed upon the common carrier is, that he is bound to carry for a reasonable remuneration, and is not allowed to make unreasonable and excessive charges. He cannot, like a merchant, consult his pleasure or caprice in the conduct of his business, and cannot even by special agreement receive an excessive and extortionate price for his services. Another duty imposed upon him is to make no unjust, injurious or arbitrary discriminations between individuals in his dealings with the public. The right to the transportation services of the carrier is a common right belonging to every one alike. Topic A. Successive Theories as to Discrimination § 612. Nothing but reasonableness once required. The state of the law as to this matter at the middle of the nineteenth century is well set forth in the important case of Fitchburg Railroad v. Gage. 52 The principal issue in this case was whether the railroad could charge one shipper a fifty cent rate on ice from one point on its route to another while it was charging another shipper a twenty cent rate on brick for the same transportation. It will be seen that this case really involves no question of personal discrimination, since these are obviously very different goods which are being shipped over the route. 52 12 Gray (Mass.), 393. no more. Still the language of the court in stating what was at that time conceived to be the common law is often cited. "The principle derived from that source is very plain and simple. It requires equal justice to all. But the equality which is to be observed in relation to the public and to every individual consists in the restricted right to charge, in each particular case of service, a reasonable compensation, and If the carrier confines himself to this, no wrong can be done, and no cause afforded for complaint. If, for special reasons, in isolated cases, the carrier sees fit to stipulate for the carriage of goods or merchandise of any class for individuals for a certain time or in certain quantities for less compensation than what is the usual, necessary, and reasonable rate, he may undoubtedly do so without thereby entitling all other persons and parties to the same advantage and relief." 53 § 613. No rule against discrimination as such. It has already been pointed out that up to twenty-five years ago the prevalent doctrine was that there was no rule against discrimination as such, unless it was shown that the higher charge was unreasonable. One of the frankest cases in making that distinction was Ex parte Benson & Co., 54 where the court permitted the recovery of a rebate promised to certain shippers to induce them to ship by rail rather than by river. The language of Chief Justice Simpson leaves no doubt as to his belief: "The extent of the common law rule seems to be, not that carriers shall transport for all parties at the same rate of compensation, otherwise their contracts are illegal and void, but that they shall transport at reasonable rates to all. A difference in the charge does not per se invalidate the contracts as inequitable and against public policy, but to have this effect, there must be an element of unreasonableness in the charge itself, as applied to the services 54 19 S. C. 38, 44 Am. Rep. 564. 53 See also Ragan & Buffet v. Aiken, 9 Lea (77 Tenn.), 609. rendered, between the parties to the contract and without comparison to the charges against others. Independent of statutes and provisions in their charters restricting corporations within certain limits, they stand in the community as other individuals invested with the power to contract and be contracted with, and the validity of their contracts depends upon the same principles which govern contracts between natural persons. It is too vague to say, in general terms, that the contract is inequitable and against public policy, and, therefore, not enforceable. To be void on such grounds, it must run contra to some known principle of equity or contravene some well-established doctrine of public forbidding it." 55 § 614. Later rule against unreasonable differences. 56 For a considerable time thereafter this remained the prevailing statement of the extent of the limitations which the law placed upon the charges of the carrier. Indeed, as new cases arose the courts committed themselves to still more definite statements. Thus in the case of Johnson v. Pensacola and Perdido Railroad Company the court refused to grant reparation to a complainant who showed that while they were charging him one rate for transportation of lumber they were charging another shipper one-third less for the same transportation under circumstances and conditions in all respects that were essential entirely similar. Mr. Justice Westcott in delivering the opinion of the court held this declaration demurrable by the weight of authority. "Our conclusions," he said, "are that, as against a common or public carrier, every person has the same right; that in all cases, where his common duty controls, he cannot refuse A and accommodate B; that all, the entire public, have the right to the same carriage at a reasonable price, and at a reasonable charge for the service performed; that the commonness & T. C. Ry. v. Rust & D., 58 Tex. 98. 55 Of the cases cited in the preceding section see, especially, Houston 56 16 Fla. 623, 26 Am. Rep. 731. |