to Harrison and such other places, and to shippers and receivers of articles of freight at such other localities, undue preference. The defendant railway companies will be required to discontinue the illegal practice of exacting from complainants and other shippers to Eureka Springs proper, any greater charges than are at the same time demanded and received from other persons for the transportation of freights to Eureka Springs to be forwarded to more favored localities." 16

§ 747. Shippers making expensive preparations cannot be favored.

In Bundred v. Rice,17 a shipper of oil set forth in his complaint a most extraordinary state of affairs-a contract whereby a railroad company bound itself to carry for one shipper crude petroleum at half the rate it agreed to charge all others, and to pay such favored shipper one half the amount collected from others, in consideration of his agreeing to establish and maintain a system of pipe lines to its road. This was held wholly void and money so paid by a shipper in ignorance of the agreement, and received by the favored shipper was recovered back in an action for money had and received by the former against the latter. An extract from the per curiam opinion follows: "That the contract between Brundred and his associates was against public policy, and void, will hardly admit of a question. As said by Baxter, J., in Handy v. Railroad Co.:18 Railroads are constructed for the common and equal benefit of all persons wishing to avail themselves of the facilities which they afford. While the legal title thereof is in the corporation or individuals

16 Compare Bigbee & W. R. Packet Co. v. Mobile & Ohio R. R., 60 Fed. 545 (1893), where the court laid it down as a fundamental principle that all goods offered for shipment at a certain point must be carried at the established rate for such goods from such point, regardless of the place where they originated.

17 49 Ohio St. 640, 32 N. E. 169, 34 Am. St. Rep. 589 (1892)

18 31 Fed. 689 (1888).

owning them, and to that extent private property, they are, by the law and consent of their owners, dedicated to the public use. Except in the mode of using them, every citizen has the same right to demand the services of railroads, on equal terms, that they have to the use of a public highway, or the government mails.' Whatever may have been the financial condition of the railroad company, it was not warranted in making a contract by which it bound itself to carry for one shipper at half the rate it agreed to charge all others for the same service, in consideration of his agreeing to establish a system of pipe lines to its road; at the same time and for the same consideration binding itself to charge all others double the amount as a fixed, open rate, and to pay to such favored shipper one half of it when collected."

§ 748. Additional services performed for certain shippers.

Upon the general principles now under discussion it will constitute discrimination to perform additional services for certain shippers in order to get their business. The issue has several times been raised whether it would be permissible for a railroad to make allowance for cartage to certain shippers distant from the station, while making no such allowance to other shippers, and the decision has always been that this would be illegal discrimination.19 For the feeling has been universal that the varying cost of shippers in delivering to the carrier for shipment can have no bearing on the case. In the most important case of this series,20 Mr. Justice Brewer said: "It is contended 20 Wight v. United States, supra.

by the defendant that it was necessary for the Baltimore & Ohio Company to offer this inducement to Mr. Bruening in order to get his business, and not necessary to make the like offer to Mr. Wolf, because he would have to go to the expense of carting, by

19 Wight v. United States, 167 U. S. 512, 42 L. Ed. 258, 17 Sup. Ct. 822 (1897); Hezel Milling Co. v. St. Louis, A. & T. H. R. R., 5 I. C. C. Rep. 57; Chicago F. P. C. Co. v. Chicago & N. W. Ry., 8 I. C. C. Rep. 316; The Brandt Milling Co.'s Case, 4 Can. Ry. Cas. 259.

whichever road he transported; that therefore the traffic was not under substantially similar circumstances and conditions.' within the terms of section 2. We are unable to concur in this view. Whatever the Baltimore & Ohio Company might lawfully do to draw business from a competing line, whatever inducements it might offer to the customers of that competing line to induce them to change their carrier, is not a question involved in this case. The wrong prohibited by the section is a discrimination between shippers. It was designed to compel every carrier to give equal rights to all shippers over its own road, and to forbid it by any device to enforce higher charges against one than another. Counsel insist that the purpose of the section was not to prohibit a carrier from rendering more service to one shipper than to another for the same charge, but only that for the same service the charge should be equal, and that the effect of this arrangement was simply the rendering to Mr. Bruening of a little greater service for the 15 cents than it did to Mr. Wolf. They say that the section contains no prohibition of extra service or extra privileges to one shipper over that rendered to another. They ask whether, if one shipper has a siding connection with the road of a carier, it cannot run the cars containing such shipper's freight onto that siding, and thus to his warehouse, at the same rate that it runs cars to its own depot, and there delivers goods to other shippers who are not so fortunate in the matter of sidings. But the service performed in transporting from Cincinnati to the depot at Pittsburg was precisely alike for each."

TOPIC B-CONCESSIONS TO LARGE SHIPPERS.

749. Whether concessions may be made to large shippers. Common carriers have often given special discounts to large shippers in order to get their trade or to retain it, and sometimes they have attempted to defend this practice upon general principles. That this policy may often be advantageous in public business, as it is in private business, may be admitted,

but it has already been seen that public duty may conflict with business policies. If, therefore, these concessions to larger shippers are in conflict with the public duty which the common carrier owes to smaller shippers, they must be held illegal as unjust discriminations. And this will be the clearer when it is shown that the favoring of such large shippers will give them such commercial advantages that they may crush out their smaller competitors in the common markets. The rule forbidding the granting of special reductions to larger shippers as such on the ground that they furnish a greater aggregate of business to the common carrier is therefore a necessary part of the law forbidding all personal discrimination.1 "The fact that one man is a large shipper and another a small shipper does not entitle the carrier to make a difference in the rate, if the property carried in each case is of the same class, and the distance and route is the same." 2

§ 750. Unreasonable differences forbidden by all courts.

All courts would agree that if there is an unreasonable difference made between the rates given to the large shipper and the rates charged a small shipper the schedule is illegal in that re

1 The quotation which follows is from United States v. Tozer, 39 Fed. 369 (1889).

2 By the weight of authority it is illegal to make reductions to large shippers as such. The principal cases are listed below: 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); Burlington, C. R. & N. Ry. v. N. W. Fuel Co., 31 Fed. 652 (1887); Kinsley v. Buffalo, N. Y. & P. Ry., 37 Fed. 181 (1888); United States v. Tozer, 39 Fed. 369 (1889); Fitzgerald v. Grand Trunk Ry., 63 Vt. 169, 22 Atl. 76, 13 L. R. A. 70 (1891).

But see Savitz v. Ohio & M. Ry., 150 Ill. 208, 37 N. E. 235, 27 L. R. A. €26 (1894), affirming 49 Ill. App. 315; Cook v. Chicago, R. I. & Pac. Ry. Co., 81 Iowa, 551, 46 N. W. 749, 25 Am. St. 512, 9 L. R. A. 764 (1890); Rothschild v. Wabash, St. L. & P. C. R., 92 Mo. 91, 4 S. W. 418 (1887); Concord & P. R. R. v. Forsaith, 59 N. H. 122, 47 Am. Rep. 181 (1879); Silkman v. Yonkers Water Commissioners, 152 N. Y. 327, 46 N. E. 612, 37 L. R. A. 827, B. & W. 363 (1897).

spect. The case of the Burlington, Cedar Rapids and Northern Railway Company,3 which is often cited in this connection, goes no further than this, after all. In that case there was an attempt by a large shipper to enforce a contract by which a railroad company agreed to charge a rate of not less than $2.40 per ton to all persons shipping less than 100,000 tons of coal per annum over its road, and to make a rate of $1.60 per ton to all shippers shipping 100,000 tons or over. Mr. Justice Brewer, then upon circuit, held the whole contract void as against public policy; he said in part: "If it be true, as held by Judge Wallace, that the rule forbidding an unjust discrimination does not necessarily prevent a railroad company from charging a less rate to one who ships a large quantity than to one who ships a small quantity, (and I am not prepared to deny that under some circumstances, there is force in that proposition, on the same principle that a wholesale dealer sells a large bill of goods at a less rate than a small bill of goods,) yet, even with that limitation, a discrimination so vast as this is, and so purely arbitrary, and which is so obviously solely in the interest of capital, and not based upon reasonable distinction in favor of a large as against a small shipper, cannot be sustained. For here the contract provides a special rate for shipment of 100,000 tons or over; that is, for one who ships 99,500 tons it makes a rate of $2.40; while to the man who ships 100,000 tons, or 500 tons more than the other, it makes a rate of $1.60,-a difference of 50 per cent. in favor of the latter. Such a discrimination, even if any discrimination based upon the amounts of shipments is tolerable, is one so gross that it cannot be sustained. No person can read that contract in the light of the circumstances without perceiving that there was on the part of the fuel company an attempt to monopolize the entire product of this coal-field, as far as respects this market; and it would be part and parcel of simi

3 Burlington, C. R. & N. Ry. v. Northwestern Fuel Co., 31 Fed. 652 (1887).