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8719. Special concessions may be made from established

rates.

Even in some comparatively recent cases these general doctrines are stated in much the same language as formerly. Thus in Lough v. Outerbridge, in holding that a common carrier might grant special reductions in pursuance of a policy to maintain its business in the face of competition, the court held that those who would not conform to the conditions had no complaint if they were not given the reduced rates. The court thus stated the general principles governing the situation as it conceived them to be. "There can be no doubt that the carrier could at common law make a discount from its reasonable general rates in favor of a particular customer or class of customers in isolated cases, for special reasons, and upon special conditions, without violating any of the duties or obligations to the public inherent in the employment. If the general rates are reasonable, a devia

U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887 (1897); Hays v. Pennsylvania Co., 12 Fed. 309, B. & W. 368 (1882); Menacho v. Ward, 27 Fed. 529, B. & W. 372 (1886); Missouri Pac. R. R. v. Texas & Pac. R. R., 30 Fed. 2 (1887); Burlington C. R. & N. Ry. v. N. W. Fuel Co., 31 Fed. 652 (1887). Alabama-Mobile & O. R. R. v. Dismuker, 94 Ala. 135, 17 L. R. A. 113 (1891); Mobile v. Bienville Water S. Co., 130 Ala. 379, 30 So. 445, B. & W. 417 (1901).

Colorado Bayles v. Kansas Pac. R. R., 13 Colo. 181, 22 Pac. 341, 5 L. R. A. 480 (1889).

Illinois-St. Louis, A. & T. H. R. R. v. Hill, 14 Ill. App. 579 (1884). Indiana-Louisville, E. & St. L. Con. R. Co. v. Wilson, 132 Ind. 517, 32 N. E. 311 (1892).

Iowa-Cook v. Chicago, R. I. & P. Ry. Co., 81 Iowa, 551, 46 N. W. 749, 25 Am. St. Rep. 512, 9 L. R. A. 764 (1890).

Missouri-Christie v. Missouri P. R. R., 94 Mo. 453, 7 S. W. 567

(1888).

New Hampshire-McDuffee v. Portland & R. R. R., 52 N. H. 430, 13 Am. Rep. 72, B. & W. 149 (1873).

New York-Root v. Long I. R. R., 114 N. Y. 300, 21 N. E. 403, 11 Am. St. Rep. 643, 4 L. R. A. 33, B. & W. 377 (1889).

7 143 N. Y. 271, 38 N. E. 292, 42 Am. St. Rep. 712, 25 L. R. A. 674, B. & W. 380 (1894).

tion from the standard by the carrier in favor of particular customers, for special reasons not applicable to the whole public, does not furnish to parties not similarly situated any just ground for complaint. When the conditions and circumstances are identical, the charges to all shippers for the same service must be equal. These principles are well settled, and whatever may be found to the contrary in the cases cited by the learned counsel for the plaintiff originated in the application of statutory regulations in other States and countries.8 Special favors in the form of reduced rates to particular customers may form an element in the inquiry whether, as matter of fact, the standard rates are reasonable or otherwise. If they are extended to such persons at the expense of the general public, the fact must be taken into account in ascertaining whether a given tariff of general prices is or is not reasonable. But as in this case the reasonable nature of the price for which the defendants offered to carry the plaintiff's goods has been settled by the findings of the trial court, it will not be profitable to consider further the propriety or effect of such discrimination." 919

8 Railroad Co. v. Gage, 12 Gray, 393, B. & W. 354 (1859); Sargent v. Railroad Co., 115 Mass. 422 (1874); Steamship Co. v. McGregor, 21 Q. B. Div. 544, affirmed 23 Q. B. Div. 598, and by H. L. 17 App. Cas. 25 (1892); Evershed v. Railway Co., 3 Q. B. Div. 135, affirmed L. R. 3 App. Cas. 1029 (1878).

9 See, also:

United States-Hays v. Pennsylvania Co., 12 Fed. 309, B. & W. 368 (1882).

Florida-Johnson v. Pensacola & P. R. R., 16 Fla. 623, 26 Am. St. Rep. 731 (1878).

Illinois-Chicago, B. & Q. R. R. v. Parks, 18 Ill. 464, 68 Am. Dec. 562

(1856).

Missouri-Rothschild v. Wabash, St. L. & P. R. R., 92 Mo. 91, 4 S. W.

418 (1887).

New York-Killmer v. New York C. R. R., 100 N. Y. 395, 3 N. E. 293, 53 Am. Rep. 194 (1885).

Pennsylvania-Com. v. Delaware & H. C. Co., 45 Pa. St. 295, B. & W. 405 (1862).

720. Outright discrimination unreasonable.

It will be noted that in none of these cases is the possibility of giving legal redress for outright discrimination quite cut off. That it is not impossible to hold the views herein expressed and yet find simple discrimination illegal is shown by the opinion of Chief Justice Doe in McDuffee v. Portland and Rochester Railroad, 10 an important case, elsewhere discussed fully. He said in part:

"The commonness of the right necessarily implies an equality of right, in the sense of freedom from unreasonable discrimination; and any practical invasion of the common right by an unreasonable discrimination practised by a carrier held to the common service is insubordination and mutiny, for which he is liable to the extent of the damage inflicted, in an action of case at common law. The question of reasonableness of price may be something more than the question of actual cost and value of service. If the actual value of certain transportation of one hundred barrels of flour, affording a reasonable profit to the carrier, is one hundred dollars; if, all the circumstances that ought to be considered being taken into account, that sum is the price which ought to be charged for that particular service; and if the carrier charges everybody that price for that service, there is no encroachment on the common right. But if for that service the carrier charges one flour merchant one hundred dollars, and another fifty dollars, the common right is as manifestly violated as if the latter were charged one hundred dollars and the former two hundred. What kind of a common right of carriage would that be which the carrier could so administer as to unreasonably, capriciously, and despotically enrich one man and ruin another? If the service or price is unreasonable and injurious, the unreasonableness is equally actionable, whether it is in inequality or in some other particular. A service or price that would otherwise be reasonable may be made unreasonable by an unreason

10 52 N. H. 430, 13 Am. Rep. 72, B. & W. 149 (1873).

able discrimination, because such a discrimination is a violation. of the common right." 11

§ 721. Undue preferences forbidden.

In Bayles v. Kansas Pacific Railroad Company, 12 the question came before the court in this form, whether a rebate promised to the shipper by the railroad in a transportation contract could be recovered by him in a suit at law. As it did not appear that the special through rate in this case was not offered to other shippers, it may well be that the demurrer to this complaint claiming that the transaction was against public policy was properly overruled. But the court-Pattison, J., writing the opinion took occasion to say: "It is a well settled elementary principle of the law of common carriers that mere inequalities in charges do not amount to unjust discrimination. The requirement of the law is that the charge made shall be reasonable. A claim against a common carrier cannot be predicated upon the bare fact that the amount paid by one is greater than the amount paid by another. At common law, the question is whether, under all the circumstances, the charge is reasonable. Complete uniformity in charges is not obligatory. This principle prevails in all the States except where it has been modified by legislative enactment. In the administration of the law the principle itself has never been modified, but the courts have declared in many cases that there must be no unjust discrimination. This, too, has come to be an elementary principle. Charges, therefore, must not only be reasonable, but equal, when the circumstances

11 See, also:

United States-Wight v. United States, 167 U. S. 512, 42 L. Ed. 258, 17 Sup. Ct. 822 (1897); Griesser v. McIlrath, 13 Fed. 373 (1882); Samuels v. Louisville & N. R. R., 31 Fed. 57 (1887); United States v. Howell, 56 Fed. 21 (1892); Re Charge to Grand Jury, 66 Fed. 146 (1895); United States v. De Cousey, 82 Fed. 302 (1897).

New York-Parks v. Jacob Dold Packing Co., 6 Misc. (N. Y.) 570, 27 N. Y. Supp. 289 (1894).

12 13 Colo. 181, 22 Pac. 341, 5 L. R. A. 480 (1889).

and conditions are the same. Privileges tending to give to a shipper monopoly, which may injuriously affect those engaged in like pursuit, are declared to be unjust. Contracts which tend to create such preference are held to be void as against public policy." 13

§ 722. Special rates may not be discriminatory.

In the case of Cleveland, Columbus, Cincinnati & Indianapolis Railroad Company v. Closser, 14 where suit was brought for a rebate promised by the railroad upon a special arrangement for a through shipment of grain, no other facts appearing, it was held that where a carrier agrees that he will carry goods at a certain rate and that after the shipment he will repay the shipper a rebate of part of such rate, this is only an agreement to carry the goods at a compensation ultimately agreed upon, and is not illegal in itself. The general attitude of the court may be seen. from the following extract from the opinion of Mr. Justice Elliott, in which he states the extent of the law against discrimination as the Indiana court sees it. "It is by no means every favor shown a particular shipper, although it may constitute in some measure a discrimination favorable to him and unfavorable to other shippers that impresses upon a contract for the carriage of goods the seal of condemnation. The common-law authorities fully support the position here taken that reference always must be had to such circumstances as quantity, distance and kindred considerations. The hinge of the question is not found

13 See, also, Hays v. Pennsylvania Co., 12 Fed. 309, B. & W. 368 (1882); Burlington, C. R. & N. Ry. v. N. W. Fuel Co., 31 Fed. 652 (1887); Tift v. Southern Ry., 123 Fed. 789 (1903); Interstate Com. Com. v. Southern Pac. Ry., 132 Fed. 829 (1904); People v. Chicago & A. R. R., 67 Ill. 118 (1873); Savity v. Ohio & M. Ry., 150 Ill. 208, 37 N. E. 235, 27 L. R. A. 626 (1894), affirming s. c. 49 Ill. App. 315; St. Louis, A. & T. H. R. R. v. Hill, 14 Ill. App. 579 (1884).

'14 126 Ind. 348, 26 N. E. 159, 22 Am. St. Rep. 593, 9 L. R. A. 754 (1890).

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