CHAPTER IV.

THE ACTS WHICH THE COMMON CARRIER IS PRO

HIBITED FROM DOING BY THE INTER-STATE
COMMERCE ACT.

HE Inter-State Commerce Act enumerates

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a great many acts on the part of common carriers which are specifically prohibited. We shall proceed to enumerate them in their order, with such comments as each section suggests.

Unjust Discrimination.

First: The second section declares that if any common carrier subject to the provisions of the Act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this Act,

than it charges, demands, collects, or receives from any other person or persons FOR DOING

FOR HIM OR THEM A LIKE AND CONTEMPORANE

OUS SERVICE IN the transportation of a like kind of traffic UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES and CONDITIONS, such common carrier shall be deemed guilty of UNJUST DISCRIMINATION, which is hereby prohibited and declared to be unlawful.

I. A literal reading of this section of the Act would seem to make it apply to services rendered by a carrier before the passage of the Act; because the language is: "That if any common carrier subject to the provisions of this Act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered," etc., it shall be guilty of unjust discrimination. But the obvious intent and spirit of the law were to make it apply to cases occurring after it went into effect.

II. The offence of "unjust discrimination" is made up of two distinct branches,—viz., first, the mere charging or demanding a greater or less compensation for any service rendered, or to be rendered, than that charged or demanded

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from other persons for doing a like and contemporaneous service, constitutes the offence; second, the act of collecting or receiving the compensation is also a misdemeanor.

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III. The question, as to what is the "charging," "demanding," collecting," or "receiving" of a greater or less compensation than that charged, demanded, collected, or received from any other person or persons, for doing for him or them "a like and contemporaneous service in the transportation of a like kind of traffic, under substantially similar circumstances and conditions," is one for the courts or for the Inter-State Commerce Commission, as the case may be, to determine. We consider it more fully in connection with the "fourth" section of the Act.

The language is ambiguous and indecisive, and this section of the law was the subject of much criticism in Congress when the Bill was discussed. (See debates of Congress, January, 1887.)

But be that as it may, the evident object of the framers of the law was to seek to establish a uniform and unvarying rate of compensation. for services of the same or a similar description rendered in the transportation of passengers or property.

IV. It will be observed, however, that the language of this second section does not apply to the receiving, delivering, storage, or handling of property.

V. The remedies of the party injured under the second section are the same as those furnished for a violation of the first section, and are to be found by reference to Sections 8, 9, and IO of the law.

Undue Preference; Unreasonable Prejudice.

Second: The third section provides that it shall be unlawful for any common carrier subject to the provisions of this Act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

Every common carrier subject to the provisions of this Act shall, according to their respective powers, afford all reasonable, proper,

and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines; but this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business. (Sec. 3.)

The first paragraph of this section declares as unlawful six distinct acts, viz. :

Ist. To make or give any undue or unreasonable preference or advantage to any particular person, company, firm, or corporation.

2nd. To make or give any such preference to any particular locality.

3d. To make or give any such preference. to any particular description of traffic in any respect whatsoever.

4th. Or, to SUBJECT any particular person, company, firm, or corporation, to any undue or unreasonable prejudice or disadvantage, in any respect whatsoever.

5th. Or to subject any particular locality to such prejudice;