and could not be invoked by branch roads directly. By the Act of June 18, 1910, the section was amended so as to permit the owners of such branch roads as well as shippers to make complaint to the Commission in case of the carrier's failure upon written application to make the connection, and it authorizes the Commission to hear, investigate and determine whether the requisite conditions exist and if so to make an order directing the carrier to comply with the provisions of the Act.113

113 The amendment consisted in inserting after the word "shipper," in line 16 of the section the words "or owner of such lateral, branch line of railroad": and also after the word "shipper" in line 17 of the section the same clause-"or owner of such lateral, branch line of railroad." See United States v. Baltmore and Ohio Southwestern Railroad Co., 226 U. S. 14, 57 L. Ed. 104, 33 Sup. Ct. 5, where the court said:-"That section requires carriers subject to the Act to establish switch connections with such lines on certain conditions; and, as amended, permits owners of such lines as well as shippers to make complaint to the Commission in case of the carrier's failure upon written application, and authorizes the Commission to hear, investigate and determine whether the conditions exist, and to make an order directing the carrier to comply with the Act."

SECTION TWO. DISCRIMINATIONS FORBIDDEN.

Unjust dis

crimination de

fined and for

bidden.

SEC. 2. 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, 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. History of the Section.-The second section has not been amended and stands in exactly the form in which it was incorporated in the Act to regulate commerce as signed February 4, 1887. The section was modelled upon section 90 of the English "Railway Clauses Consolidation Act" of 1845, known as the "Equality Clause." In the words of the Supreme Court "the principal purpose of the second section is to prevent unjust discrimination between shippers." It is thus distinguished from

I Texas and Pacific Railway Co. v. Interstate Commerce Commission, (The Import Rate Case), 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666. The court here said:-"The principal purpose of the second section is to prevent unjust discrimination between shippers. It implies that, in deciding whether differences in charges, in given cases, were or were not unjust, there must be a consideration of the several questions whether the services rendered were 'like and contemporaneous,' whether the kinds of traffic were 'like,' whether the transportation was effected under 'substantially similar circumstances and conditions.' To answer such questions, in any case coming before the Commission, requires an investigation into the facts; and we think that Congress must have intended that whatever would be regarded by common carriers, apart from the operation of the statute, as matters which warranted differences in charges, ought to be

the third section which deals with discriminations against and preferences in favor of localities, or with discriminations between kinds of traffic. Under section 2, in deciding whether differences in charges are or are not unjust consideration must be given to (1) whether the services rendered were "like and contemporaneous," (2) whether the kinds of traffic were "like," and (3) whether the transportation was effected under "substantially similar circumstances and conditions." These questions must be properly considered by the Commission in reaching a conclusion on questions involving the violation of this section of the Act. Certain charges might be unjust to shippers, and other charges might be unjust to the carriers-and the rights and interests of both must be regarded by the Commission.

Before the enactment of the Act to regulate commerce railway traffic in the United States was regulated by the principles of the common law applicable to common carriers which required barely more than that they should carry for all persons who desired to use their services, that they should transport shipments in the order in which the goods were delivered to the carrier, and that the charges for the service should be reasonable. There was

considered in forming a judgment whether such differences were or were not 'unjust.' Some charges might be unjust to shippers-others might be unjust to the carriers. The rights and interests of both must, under the terms of the Act, be regarded by the Commission."

2. Interstate Commerce Commission v. Baltimore and Ohio Railroad, (The Party Rate Case), 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844, where the court said:-"Prior to the enactment of the Act of February 4, 1887, to regulate commerce, commonly known as the Interstate Commerce Act, railway traffic in this country was regulated by the principles of the common law applicable to common carriers, which demanded little more than that they should carry for all persons who applied, in the order in which the goods were delivered at the particular station, and that their charges for transportation should be reasonable. It was even doubted whether they were bound to make the same charge to all persons for the same service; though the weight of authority in this country was in favor of an equality of charge to all persons for similar services. In several of the states Acts had been passed with the design of securing the public against unreasonable and unjust discriminations; but the inefficacy of these laws beyond the lines of the state, the impossibility of securing concerted action between the legislatures toward the regulation of traffic between the several states, and the evils which grew up under a policy of unrestricted competition, suggested the necessity of legislation by Congress under its constitutional power to regulate commerce among the several states. These evils ordinarily took the shape of inequality of

some question whether they were compelled to charge the same amounts to all persons for the same service-although the weight of authority tended to establish the principle of an equality of charge to all persons for similar services.

The purpose of the second section of the Interstate Commerce Act was to insure such equality of charges by the force of statutory enactment. In the words of the Supreme Court, "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."

The Elkins Act.-Although section 2 is aimed at the destruction of rebates and unequal charges between different shippers and is considered one of the most important features of the Act to Regulate Commerce, it has been very materially reenforced in the enactment of the so-called Elkins Act of February 19, 1903, which sought to eliminate the practice of rebating. Both the Act to regulate commerce and the Elkins Act were designed to kill favoritism. Under section two of the former Act the standard of comparison was the treatment accorded other shippers by which it was necessary to show not merely that the favored shipper paid less than the published rate for

charges made, or of facilities furnished, and were usually dictated by or tolerated for the promotion of the interests of the officers of the corporation or of the corporation itself, or for the benefit of some favored persons at the expense of others, or of some particular locality, or community, or of some local trade or commercial connection, or for the destruction or crippling of some rival or hostile line.”

3 Wight v. United States, 167 U. S. 512, 42 L. Ed. 258, 17 Sup. Ct. 822, where the court also said:-"It was the purpose of the section to enforce equality between shippers, and it prohibits any rebate or other device by which two shippers, shipping over the same line, the same distance, under the same circumstances of carriage are compelled to pay different prices therefor."

See also Union Pacific Railway Co. v. Goodridge, 149 U. S. 680, where in discussing a Colorado statute regulating intrastate railroads, the court said: "This Act was intended to apply to intrastate traffic the same wholesome rules and regulations which Congress two years thereafter applied to commerce between the states, and to cut up by the roots the entire system of rebates and discriminations in favor of particular localities, special enterprises, or favored corporations, and to put all shippers on an absolute equality, saving only a power, not in the railroad company itself, but in the railroad commissioner, to except 'special cases designed to promote the development of the resources of this state,' etc."

the services rendered, but that other shippers paid a greater rate than that exacted of the favored shipper. But under the Elkins Act the criterion is the published rate and to sustain the charge of violating the Act it is necessary to show only that the favored shipper has paid a lower rate than that filed and published. For a more extended discussion, see The Elkins Act, post pages 505 et seq.

Through and Local Traffic.-Under section 2 shippers must be treated alike by carriers for the same service that is for transportation under "similar circumstances and conditions." Under section 4 competition may create dissimilar circumstances and conditions between communities. While rates may be thus determined under section 4 for dissimilar circumstances or conditions, section 2 requires that shippers in the same locality must receive the same treatment for the same service. However, through traffic is not of a like kind with local traffic. The service of a railway company in transporting local traffic from one point on its line to another is not identical with the service rendered in transporting through traffic over the same rails. While the actual mileage is

4 Chicago and Alton Railway Co. v. United States, 156 Fed. 558, affirmed without opinion in 212 U. S. 563, 53 L. Ed. 653, 29 Sup. Ct. 689, where it was shown that railroads had repaid to shippers a certain proportion of the carload charges under the pretense of rental of tracks which constituted part of the plant facilities of the shipper. The court said:"This case is ruled in principle, we believe, by the decision in Wight v. United States, 167 U. S. 512, 42 L. Ed. 258, 17 Sup. Ct. 822, that an arrangement whereby a particular shipper was allowed to offset against his freight bills the true value of the use of his teams in hauling the property from the railroad to his warehouse was a discrimination against other shippers of the same class of property in the same city who were compelled to pay the freight in full. It is contended that the citation is inapplicable because the question there was of discrimination and here of rebate. Under the Cullom Act (Act of February 4, 1887), the standard of comparison was the treatment of other shippers. It was necessary to prove not only that the favored shipper really paid less than the published rate, but also that other shippers paid the full rate or a greater rate than that of the favored shipper. Under the Elkins Act the standard of comparison is the published rate. It is only necessary to prove that the favored shipper has had his property transported at a lower rate than that published and filed. Both Acts were aimed to kill favoritism, and the favoritism in the Wight case was of the same kind and effect as in this." 5 See Chicago, Milwaukee & St. Paul Railway Co. v. Tompkins, 176 U. S. 167, 44 L. Ed. 417, 20 Sup. Ct. 336, where the court said: "It is obvious on a little reflection that the cost of moving local freight is greater