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ble, by the person furnishing the service, was a just and reasonable sum. In the absence of special contract, this rule applied to common carriers as well as other persons.
But as the law now is, under the Inter-State Commerce Act, the parties are no longer allowed to make absolute contracts, for the rendering of a service in the transportation of passengers or property, or in the receiving, delivering, storage, or handling of the same. The common carrier and shipper are no longer permitted to deal with each other as they please, because, so far as the amount to be received for the services is concerned, if they contract for a sum not“ reasonable and just,” such contract is void, because it is prohibited. Formerly the shipper could say to the common carrier : “ If you will transport certain goods . from Chicago to New York, I will pay you one
hundred weight"; and such a contract was good, and could be enforced by the common carrier, regardless of the fact that such charge was excessive or unreasonable, because, in the absence of fraud, the law would not interfere with the private bargains of suitors. It allows its subjects to make their own bargains.
But now it is otherwise ; no contract can be
enforced between the shipper and the carrier, where the amount claimed for the service is not just and reasonable.
The question as to what is a “ reasonable and just " charge is to be determined by the courts, as intimated by the Supreme Court of the United States in the cases to which we have heretofore alluded (Munn v. Illinois, 94 U. S., p. 113; Chicago, Burlington, & Quincy R.R. Co. v. Iowa, 94 U. S., 155; Peik v. Chicago, etc., Ry. Co., 94 U. S., 164); and evidence would be admitted on the part of both the shipper and the common carrier to show what was a reasonable and just charge. What the nature of such evidence will be, depends upon each individual
The ultimate decision of the question would, in an ordinary action at common law, be left to a jury to determine ; but under the 13th, 14th, and 15th sections of the Inter-State Commerce Act, this question, of what is a reasonable and just charge, may also be determined by the Inter-State Commerce Commission.
But as under the 9th section of the Act, any person claiming to be damaged by a common carrier may bring suit in his name, and on his own behalf, in any District or Circuit Court of
the United States of competent jurisdiction, it follows that the compensation of common carriers will hereafter be largely regulated by the decision of a jury; and that practically the rates, fares, and charges for the transportation of passengers and property will be placed by the Inter-State Commerce Act in the hands of that uncertain and capricious body.
The question, whether a charge for service made by a common carrier is reasonable and just, can arise in two ways:
I. If the sum claimed for the service by the carrier has not been paid, if it be not reasonable and just, it cannot be recovered from the shipper.
II. If such amount has been paid, the shipper may recover the excess back from the carrier, either in an action at law under the 8th and 9th sections of the Act, or by appeal to the InterState Commerce Commissioners under the 9th and 15th sections thereof. But the injured party cannot invoke or pursue both remedies. (Sec. 9.)
III. In addition to these civil remedies, the common carrier may be prosecuted, for taking unreasonable and unjust charges, by indictment as for a misdemeanor. (Sec. 10.)
THE ACTS WHICH THE COMMON CARRIER IS PRO
HIBITED FROM DOING BY THE INTER-STATE
HE Inter-State Commerce Act enumerates
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.
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 CONTEMPORANEOUS 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