trine, I am not able to see how it can be admissible for a common carrier to demand a different hire from various persons for an identical kind of service, under identical conditions. Such partiality is legitimate in private business, but how can it square with the obligations of a public employment? A person having a public duty to discharge, is undoubtedly bound to exercise such office for the equal benefit of all, and therefore to permit the common carrier to charge various prices, according to the person with whom he deals, for the same services, is to forget that he owes a duty to the community. If he exacts different rates for the carriage of goods of the same kind, between the same points, he violates, as plainly, though it may be not in the same degree, the principle of public policy which, in his own despite, converts his business into a public employment. The law that forbids him to make any discrimination in favor of the goods of A over the goods of B, when the goods of both are tendered for carriage, must, it seems to me, necessarily forbid any discrimination with respect to the rate of pay for the carriage." 67

§ 620. Necessity for the rule against discrimination.

By the modern way of looking at this matter, therefore, discrimination is illegal. In last analysis it is public opinion which has dictated this rule, although it is not too much to claim that this rule is a logical development in the law of public duty. So involved are the services of the common carrier, directly or indirectly, in all modern businesses that it is already felt to be unbearable if transportation is not open to all upon equal terms. And the rule must be exact. It is not enough to say that all must be given rates which are not unreasonable, for by that principle in many cases unequal rates might be justified.68

67 See also Sandford v. Catawissa, W. & E. R. R., 24 Pa. St. 378, 64 Am. Dec. 667.

68 Chicago & A. R. R. v. People, 67 Ill. 16, 16 Am. Rep. 599.

What public opinion requires to-day is that the rates shall be equal; if they are different by a few cents upon a hundredweight it may mean the fortune of the shipper who gets the lower rate, and the ruin of his competitor who pays the higher rate. The cases requiring the same rate to shippers who ask for the same transportation of the same goods at the same time and under the same conditions may seem fewer in number than those which are more conservative. But this principle was made law in many States by an impatient public who demanded statutes so that there could be in the future no equivocations, before many courts had time to express their opinion and before other courts had time to recant. And upon the whole it is claimed with confidence that outright personal discrimination is opposed to modern common-law principles. 69

§ 621. Rule forbidding personal discrimination.

It is submitted that for the reasons advanced in these last paragraphs, if for no other reasons, it is a necessary part of the common law governing common carriers that they must not discriminate between shippers; and it must be plain that this involves the recognition of a rule forbidding discrimination which goes beyond the prior rule requiring reasonable charges. It was not easy to work this out logically, since it did involve a development in the law governing public service. How cautious many courts were in working the new rule out may be seen by an extract from the opinion of Judge Bruce in Samuels v. Louisville and Nashville Railroad Company,70 where the court sustained on demurrer a complaint which stated discrimination, but did not allege unreasonable charge: "But the question in this case is to be determined upon the common law, and in the light of those principles as applied to railroad companies. In a case like the one at

69 See the language in Griffin v. Goldsboro Water Co., 122 N. C.

206, 30 S. E. 319, 41 L. R. A. 240. 70 31 Fed. 57.

bar, can there be a reasonable charge which is not at the same time a substantially equal charge? And is not a charge unreasonable when it is unequal, and in breach of the obligation and duty of the common carrier to the public?" 71

§ 622. Public injury by discriminations in freight rates. The argument from policy against discrimination is so plain to anyone who has not been out of touch with the recent developments in the industrial situation that it is hardly necessary to elaborate it. But a succinct statement from a recent decision by Judge Grosscup,72 where he held that under its general chancery jurisdiction, a court of equity has power to remedy wrongs consisting of the violation by a carrier of the provisions of the interstate commerce law prohibiting discrimination between shippers, brings out well the necessity for the protection of the whole public in having the benefits of an open market. "The bill avers-and this hearing is upon demurrer and motion for an injunction-that such discrimination was practiced in the transportation of grains and of packing house goods; and that in the transportation of grain it had gone so far that each railroad reaching into the grain districts had eliminated all competitive dealers, leaving only a single favored dealer who purchased all the grain at all the stations along the lines of the roads. Of course under such conditions, the grain grower was deprived of the benefit of competition among dealers. The practical effect was the same as if the railroads had established agencies of their own to purchase the grain, and by giving these discriminatory advantages, had excluded all other grain purchasers from the field. Such a policy necessarily destroys the competition to which the grain growers in a given district are entitled. Discrimination of this charac

71 See also Burlington C. R. & W. Ry. v. N. W. Fuel Co., 31 Fed. 652.

72 United States v. Michigan Central R. R., 122 Fed. 544.

ter is, of course, contrary to the plain provisions of the interstate commerce act." 73

623. Policy of the Act.

The Commission has had occasion to remark that in the passing of the Act one important purpose was to stop discrimination against the weak in favor of the strong." It has spoken also with emphasis of the boon of free competition, which the Act is designed to secure to all, large and small.75 The fundamental principle of the Act is clearly that there should be equal treatment to all alike under the substantially similar conditions and circumstances.76 While one object of the Act was to preserve competitive conditions between common carriers for the public benefit, another purpose was to prevent undue discrimination for private protection." Carriers are common servants of all shippers, and are bound to serve them all reasonably and without undue prejudice.78 It is the duty of a common carrier to receive and carry, upon reasonable and equal terms, all goods tendered, under suitable circumstances and conditions, and it cannot lawfully discriminate in favor of any person, product, traffic or locality.79 Whether or not a discrimination shall be removed is not measured by its amount, whether large or small, but it is unjust or undue.80 Again and again it has been laid down that it is the duty of the carrier to transport for all without undue preference or property.81 Equal treatment is nowhere more clearly laid down in the Act than in sec

tions 2 and 3, to the test of which all questions of preference or priority should be referred first of all.82 The word contemporaneous in these sections means at the same time with the offending rates; and as long as these rates remain in force the services rendered to a complaining and to a favored shipper are contemporaneous within the meaning of the Act.83 Altogether the fundamental principle of the Act in the view of the Commission is one of fair play; a railroad cannot nowadays put in force preferences or priorities, even though by following such course of procedure it can develop the greatest amount of traffic for itself.84 Such business policies, it is at last realized after bitter experience, are inconsistent with the fundamental duties of common carriers.

Topic B. What Constitutes Statutory Discrimination

$ 624. What amounts to a rebate.

Not only are the outright discounts and the obvious rebates of the earlier time illegal, but any device by which the charge to a shipper is made less than the schedule rate is now held to be discrimination. Thus free cartage for the collection and delivery of freight for certain shippers only has been held by the Supreme Court to be an illegal rebate.85 And an unpublished allowance to certain shippers of a certain sum for the use of their private sidings, has long been considered by the federal courts as a case of illegality.8 As such obvious devices have thus become too dangerous, more elaborate schemes have developed for getting an advantage in rates. Thus many large concerns have organized, often as a separate concern, an industrial railway from their premises to the trunk line. They may thus attempt to pose as a connecting carrier,

86

82 Rail & River Coal Co. v. B. & O. R. R., 14 I. C. C. 86.

83 Re Underfilling, 1 Int. Com. Rep. 813, 1 I. C. C. 633.

84 Mobile Chamber of Commerce v. M. & O. R. R., 23 I. C. C. 417.

85 Wight v. United States, 167 U. S. 512, 42 L. ed. 258, 17 Sup. Ct. 822.

86 Chicago & A. Ry. v. United States, 156 Fed. 558.