and not only obtain from the trunk line a division of the rate to market but that disproportionately large share which the originating carrier gets.87 Another late scheme is the organization of a dummy transportation company by a manufacturing company to carry its products to market, getting as payment not only the rental of their special cars at extraordinarily high rates but a virtual commission for furnishing the business.88 It is needless to say that the courts have now become too sophisticated to be thus imposed upon. Indeed rebating in all its forms has now become a very smoky sin indeed, and anyone who is concerned in it will be smutted. The cases cited in this section are noted only by way of illustration without any attempt to make in this place anything like a comprehensive statement of principles involved. Indeed, it will take nothing less than a study of the eight chapters constituting this Book to gain any idea of the scope of these rules at the present day.

§ 625. Prohibition of special rates.

Since its work of administering the Act began, the Commission has never had any question that any device by which the charge to a patron is made less than the scheduled rate is a rebate, and is forbidden by the Act.89 Even if it is a practice of which others may avail themselves, a discount allowed to shippers of a certain amount of goods within a year is objectionable. So free cartage for the collection and delivery of freight, not mentioned in the published schedule, is an illegal rebate.91 And even

if published, if open only to certain customers, it is illegal in itself.92 So the practice of allowing a tank shipper of

87 See United States v. Atchison, T. & S. F. R. R., 142 Fed. 176.

88 See United States v. Milwaukee Refrig. Transit Co., 145 Fed. 1007. 89 Re Boston & M. R. R., 3 Int. Com. Rep. 793.

90 Providence Coal Co. v. Provi

dence & W. R. R., 1 Int. Com. Rep. 363.

91 Stone v. Detroit, G. H. & M. Ry., 3 Int. Com. Rep. 60, 3 I. C. C. 613.

92 Hezel Milling Co. v. St. Louis, A. & T. H. Ry., 3 Int. Com. Rep. 701, 5 I. C. C. 57.

oil an arbitrary deduction of a certain number of gallons per tank car is wholly indefensible, when no corresponding allowance is made for leakage and evaporation from shipments in barrels.93 So the employment of brokers or scalpers as a device to give low rates is illegal; and sales by such brokers at less than tariff rates are forbidden." And a device by which a rebate running to the benefit of those whom the carrier is seeking to favor will not defeat the Act.95 Section 2 of the Act prohibits charging to one a greater or less compensation than is charged to another for a like and contemporaneous service under substantially similar circumstances and conditions. It was the purpose of section 2 to enforce equality between shippers, and it prohibits any rebate or other device by which two shippers shipping over the same line, the same distance, under the same circumstances of carriage, are compelled to pay different prices therefor.97

§ 626. Explanation of this policy.

Thus the statute provides a complete system. It prevents rebating by making the published rate obligatory on all concerned, and it gives relief from unfair published rates by complaint to the Commission. This policy is thus emphasized in a recent opinion: 98 "The object of the statutes relating to interstate commerce is to secure the transportation of person and property by common carriers for reasonable compensation. No rate can possibly be reasonable that is higher than anybody else has to pay. Recognizing this obvious truth, the law requires the carrier to adhere to the published rate as an absolute standard of uniformity. The requirement of publication is

93 Rice v. Western N. Y. & P. R. R., 3 Int. Com. Rep. 162, 4 I. C. C. 131.

94 Re Passenger Tariffs, 2 Int. Com. Rep. 445, 2 I. C. C. 649.

* Re Underbilling, 1 Int. Com. Rep. 813, 1 I. C. C. 633.

96 In re Advances in Demurrage Charges, 25 I. C. C. 314.

97 In re Advances on Manganese Ore, 25 I. C. C. 663.

98 State v. Chicago & A. Ry., 148 Fed. 648.

imposed in order that the man having freight to ship may ascertain by an inspection of the schedules exactly what will be the cost to him of the transportation of his property; and not only so, but the law gives him another and a very valuable right, namely, the right to know, by an inspection of the same schedule, exactly what will be the cost to his competitor of the transportation of his competitor's property." Still more emphatic is the language in a later case: 99 "Effective railroad rate regulation must begin with publicity of rates. To be public the rates must be laid before the Interstate Commerce Commission, must be kept in the stations of the carriers for the information of the public, and must also be printed in such form that they shall be intelligible to the average shipper upon examination. All of this was perceived by the lawmakers 20 years ago, and the rules, based upon these considerations, then written into the law, have continued unchanged, except as they have been from time to time strengthened and amplified."

§ 627. What discrimination is forbidden.

The discrimination forbidden by the Act is not confined to any one form of unfair dealing. It need not be accomplished by any particular device; and, on the other hand, no device will prevent an unreasonable preference from being unlawful. It includes preference in rates: 2 in classification: 3 and in the furnishing of facilities. The discrimination must be actual, not merely contemplated, as by offering a discriminative rate which is not accepted or by giving a concession to a shipper which is not shown 2 Int. Com. Rep. 15, 3 I. C. C. 435.

99 United States v. Illinois Terminal Co., 168 Fed. 546.

1 Scofield v. Lake Shore & M. S. R. R., 2 Int. Com. Rep. 67, 2 I. C. C. 90.

2 United States v. Tozer, 37 Fed. 635, 2 Int. Com. Rep. 597, on appeal, 39 Fed. 904.

3 Bates v. Pennsylvania R. R.,

4 Re Morris, 2 Int. Com. Rep. 617.

5 Lehigh Valley R. R. v. Ramey, 112 Fed. 487. See also Griffee v. Burlington & M. R. Ry., 2 Int. Com. Rep. 194; Richmond Elevator Co. v. Pere Marquette R. R., 10 I. C. C. Rep. 629.

5

to have been refused to any other shipper. The Act applied only to the future; it did not embrace cases which occurred before it was passed.' Section 2 embodies the phrase, "under substantially similar circumstances and conditions," but this might be included in the words "in any respect whatsoever" contained in section 3.8 Every effort of the carriers to compel accuracy and honesty in description of freight deserves support; conscious misrepresentations are misdemeanors and criminal, and should be rigorously suppressed." Any regulation or practice that withdraws from a shipper the equal opportunity of using and taking advantage of the rates offered by a carrier to the public, is clearly a regulation or practice affecting rates in the sense in which that phrase is used in the Act as amended in 1906.10 Where a shipper is located in a district to which a uniform rate has been applied, he is entitled to the same rates as any other shipper in the district, although his shipments may be originated by a different railroad than that serving the other shippers.11

§ 628. Departure from published rate.

The Act requires carriers to publish their tariffs and to adhere to those tariffs; in no other way could discriminations which had existed be prevented; and, therefore, in enforcement of these provisions the Commission has no discretion.12 Failure on the part of the shipper to pay, or of the carrier to collect, the full freight charged based upon the lawfully published rate for the particular movement between two given points, constitutes a breach of

6 United States v. Ganley, 71 Fed. 672.

7 Ottinger v. Southern Pac. R. R., 1 Int. Com. Rep. 607, 1 I. C. C. 144.

8 Board of Trade of Carrollton v. C. of G. Ry. Co., 28 I. C. C.

154.

Western Classification Case, 25 I. C. C. 442.

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

11

11 Pennsylvania R. R. v. International Coal M. Co., 173 Fed. 1.

12 Ames Bros. Co. v. Rutland R. R., 16 I. C. C. 479.

the law, regardless of the rate inserted in a bill of lading.13 The word "discrimination" as used in the Elkins Act is employed in its common sense, as well as with whatever enlarged or more definite meaning the context of the amendment of 1906 gives to it; thus a shipper who is permitted to settle his charges by paying a "less or different compensation" to the carrier is accepting or receiving a "discrimination."14 In a prosecution under this Act against a shipper for the acceptance of a concession, it is for the court, and not for the jury, to determine whether documents filed with the Commission are sufficiently definite to establish the rate in question between the points in question.15 If inequality results from the exaction of a special rate to one shipper, and a different rate to another upon like traffic contemporaneously transported under substantially similar circumstances and conditions, section 2 is violated.16 The paramount duty under the Act is to avoid discrimination or the suspicion of any device to work a discrimination. 17

§ 629. Sanctity of the scheduled rate.

The strict provisions against rebating contained in the Act are based upon an ingenious, and apparently effective plan. A schedule of rates, prepared by the carrier, must be filed with the Commission, and duly published, as it required. 18 When this has been done, the rate so scheduled cannot be changed by the railroad, without the filing and sufficient publication of a new rate. The doctrine is carried to such an extent that, even if a shipper is at first charged a lower rate quoted him by a freight agent, he can be compelled to pay the difference between

13 Poor Grain Co. v. C., B. & Q. Ry., 12 I. C. C. 118.

14 U. S. v. Sunday Creek Co., 194

Fed. 252.

15 Standard Oil Co. of New York v. U. S., 179 Fed. 614.

16 Moran & Son v. Mo. Pac. Ry., 11 I. C. C. 598.

17 R. R. Com. of La. v. St. L. S. W. Ry., 23 I. C. C. 31.

18 Due publication of rates may be required by legislation. Stone et al. v. Yazoo & M. V. R. R., 62 Miss. 607.