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).

in the single fact of discrimination, for discrimination without partiality is inoffensive and partially exists only in cases where advantages are equal and one party is unduly favored at the expense of another who stands upon an equal footing."

§ 723. Exclusiveness of the privilege creates discrimination. In a similarly inconclusive case, Christie v. Missouri Pacific Railroad Company, 15 where a petition alleged that a contract was made with the agent of a railroad company regarding the shipment of grain at a reduced price, stating its terms, it was held that nothing appeared to show that the arrangement was against public policy, Chief Justice Norton saying: "A common carrier has the right to contract to ship freight at a lower rate than the published tariff rate, if he choose to do so; and such a contract is not against public policy unless the privilege to ship at such rate is granted exclusively to the shipper with whom it is made, or is denied to other shippers. It is the exclusiveness of the privilege granted to one and denied to another which makes the discrimination, and renders the contract void as against public policy. No such exclusiveness or discrimination appears in the contract sued upon, and the objection of defendant to the reception of any evidence was properly overruled." 16

TOPIC C-VIEW THAT DISCRIMINATION ILLEGAL IN ITSELF.

§ 724. Necessity for the rule against discrimination.

By the modern way of looking at this matter, however, 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

15 94 Mo. 453, 7 S. W. 567 (1888).

16 The case of Toledo, W. & W. R. Co. v. Elliott, 76 Ill. 67 (1875), was relied upon by the court.

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. What public opinion requires to-day is that the rates shall be equal; if they are different by a few cents upon a hundred weight 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.1

1 The following cases hold discrimination in rates to be illegal in itself if the conditions are similar:

UNITED STATES-Wight v. United States, 167 U. S. 512, 42 L. Ed. 258, 17 Sup. Ct. 822 (1897); Western U. T. Co. v. Call Pub. Co., 181 U. S. 92, 45 L. Ed. 765, 21 Sup. Ct. 561 (1901), overruling s. c. 44 Neb. 326, 62 N. W. 506 (1895); Hays v. Pennsylvania Co., 12 Fed. 309, B. & W. 368 (1882); Griesser v. McHeath, 13 Fed. 373 (1882); Burlington, C. R. & W. Ry. v. N. W. Fuel Co., 31 Fed. 652 (1887); Handy et al. v. Cleveland & M. R. Co. et al., 31 Fed. 689 (1888).

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).

Georgia-Savannah, F. & W. Ry. v. Burdick, 94 Ga. 775, 21 S. E. 994

(1894).

Illinois-Chicago & A. R. R. v. People, 67 Ill. 16, 16 Am. Rep. 599 (1873); People v. Chicago & A. R. R., 67 Ill. 118 (1873); Chicago & A. R. R. Co. v. Coal Co., 79 Ill. 121 (1875); Indianapolis, D. & S. R. R. v. Ervin, 118 Ill. 250,, 8 N. E. 862 (1886).

$ 725. Evils of discriminations between competitors.

The leading case in American law which first established upon a firm foundation the rule forbidding discrimination in the modern sense of that term was Messenger v. Pennsylvania Railroad Company.2 The facts in that case were in brief that the Pennsylvania Railroad Company, who were the defendants in this action, agreed with the plaintiffs to carry certain merchandise for them, between certain termini, at a fixed rate less than they should carry between the same points for any other person. The allegation was that goods had been carried for other parties at a certain rate below what the goods of the plaintiffs had been carried, and this suit was to enforce the foregoing stipulation. The question was whether the agreement thus forming the foundation of the suit was legal. In the Supreme Court of New Jersey an excellent opinion was written by Chief Justice Beasley pointing out that such an agreement was against public policy. This was affirmed by the Court of Errors and Appeals, Mr. Justice Biddle writing an elaborate opinion, in the course of which he said:

New Jersey-Messenger v. Pennsylvania R. R., 7 Vroom (36 N. J. L.), 407, 13 Am. Rep. 457, 8 Vroom (37 N. J. L.), 531, 18 Am. Rep. 754, B. & W. 357 (1874); Steward v. Lehigh V. R. R., 38 N. J. L. 505 (1875). North Carolina-Griffin v. Goldsboro Water Co., 112 N. C. 206, 30 S. E. 319, 41 L. R. A. 240, B. & W. 403 (1898).

Ohio-Scofield v. Lake Shore & M. S. R. R., 43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846 (1885); State v. Cincinnati, N. O. & T. P. Ry., 47 Ohio St. 130, 23 N. E. 928, B. & W. 400 (1890); Brundred v. Rice, 49 Ohio St. 640, 32 N. E. 169, 34 Am. St. Rep. 589 (1892); Baltimore & O. R. R. Co. v. Diamond Coal Co., 61 Ohio St. 242, 55 N. E. 616 (1899). Pennsylvania--Sandford v. Catawissa, W. & E. R. R., 24 Pa. St. 378, 64 Am. Dec. 667 (1855); Twells v. Pa. Ry., 2 Watts, 450, 3 Am. L. Reg. N. S. 728 (1863); Chamblos v. Philadelphia & R. R. R., 4 Brews. (Pa.) 563 (1873).

Texas-Dittmar v. New Braunfels, 20 Tex. Civ. App. 293, B. & W. 388

(1899).

Vermont-Fitzgerald v. Grand Trunk Ry., 63 Vt. 169, 22 Atl. 76, 13 L. R. A. 70 (1891).

27 Vroom (36 N. J. Law), 407, 13 Am. Rep. 457, 8 Vroom (37 N. J. L.), 531, 18 Am. Rep. 754, B. & W. 357 (1874).