every individual consists in the restricted right to charge, in each particular case of service, a reasonable compensation, and no more. If the carrier confines himself to this, no wrong can be done, and no cause afforded for complaint If, for special reasons, in isolated cases, the carrier sees fit to stipulate for the carriage of goods or merchandise of any class for individuals for a certain time or in certain quantities for less compensation than what is the usual, necessary, and reasonable rate, he may undoubtedly do so without thereby entitling all other persons and parties to the same advantage and relief." 1

§ 1283. Later rule against unreasonable differences.

1

For a considerable time thereafter this remained the prevailing statement of the extent of the limitations which the law placed upon the charges of the carrier. Indeed as new cases arose the courts committed themselves to still more definite statements. Thus in the case of Johnson v. Pensacola and Perdido Railroad Company 1 the court refused to grant reparation to a complainant who showed that, while it was charging him one rate for transportation of lumber, it was charging another shipper one-third less for the same transportation under circumstances and conditions in all respects that were essential entirely similar. Mr. Justice Westcott in delivering the opinion of the court held this declaration demurrable by the weight of authority. "Our conclusions," he said, "are that, as against a common or public carrier, every person has the same right; that in all cases, where his common duty controls, he cannot refuse A and accommodate B; that all, the entire public, have the right to the same carriage at a reasonable price, and at a reasonable charge for the service performed; that the commonness of the duty to carry for all does not involve a commonness or equality of compensation or charge; that all the shipper can ask of a common carrier is, that for the service performed he shall charge no more than a reasonable sum to him; that whether the carrier charges another more or less than the price charged a particular individual, may be a matter of evidence in determining whether a charge is too much or too little for the service performed, and that the difference between the charges cannot be the measure of damages in any case, unless it is established by proof that the

Vermont.-State v. Central Vt. Ry. Co., 81 Vt. 463, 71 Atl. 194, 130 Am. St. Rep. 1065 (1908). England.-Nicholson v. Gt. West

ern R. R. Co., 5 C. B. (N. S.) 366 (1858).

116 Fla. 623, 26 Am. Rep. 731 (1878).

smaller charge is the true reasonable charge in view of the transportation furnished, and that the higher charge is excessive to that degree.'

§ 1284. Special rates may not be discriminatory.

In the case of Cleveland, Columbus, Cincinnati & Indianapolis Railroad Company v. Closser,2 where suit was brought for a rebate promised by the railroad upon especial 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 Eliott, 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 ques

1 To the same effect see: Georgia.-Central of Ga. Ry. v. Augusta Brokerage Co., 122 Ga. 646, 50 S. E. 473 (1905).

Iowa.-Cook v. Chicago, R. I. & P. Ry. Co., 81 Iowa, 551, 46 N. W. 1080, 25 Am. St. Rep. 512, 9 L. R. A. 764 (1890).

Massachusetts.-Spofford v. Boston & M. R. R. Co., 128 Mass. 326 (1880).

South Carolina.-Ex parte Benson, 18 S. C. 38, 44 Am. St. Rep. 564 (1882).

Tennessee.-Ragan & B. v. Aiken, 9 Lea, 609 (1882).

Vermont.-State v. Central Vt. Ry. Co., 81 Vt. 463, 71 Atl. 194, 130 Am. St. Rep. 1065 (1908).

2 126 Ind. 348, 26 N. E. 159, 22 Am. St. Rep. 593, 9 L. R. A. 754 (1890).

tion is not found 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." 1

§ 1285. Exclusiveness once held indispensible.

2

In a similarly inconclusive case, Christie v. Missouri Pacific Railroad Company, 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." 3

§ 1286. Discrimination as evidence of unreasonable rates.

How cautious many courts were in working the new rule out may be seen by an extract from the opinion of Judge Bruce in Samuels v. Louisville and Nashville Rail

1 The same doctrine appears prominently in Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292, 42 Am. St. Rep. 712, 25 L. R. A. 674 (1894).

294 Mo. 453, 7 S. W. 567 (1888).

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

road Company,' where the court sustained on demurrer a complaint which stated discrimination, but did not allege unreasonable charge: "But the question in this case is to be determined upon the common law, and in the light of those principles as applied to railroad companies. In a case like the one at bar, can there be a reasonable charge which is not at the same time a substantially equal charge? And is not a charge unreasonable when it is unequal, and in breach of the obligation and duty of the common carrier to the public?" 2

§ 1287. Complainant charged more than regular rates. Thus in outrageous cases relief would be given in all jurisdictions by some one of these principles. In one of the most extreme cases in the books, Menacho v. Ward,3 it was set forth by the shippers in their application for relief that the carrier in question had arbitrarily refused them equal terms, facilities and accommodations to those

131 Fed. 57 (1887).

2 Discrimination was held evidence of unreasonable rates in the following cases, among others:

United States.-Union Pac. Ry. Co. v. Goodridge, 149 U. S. 680, 37 L. ed. 896, 13 Sup. Ct. 970 (1893); Parsons v. Chicago & N. W. Ry., 167 U. S. 447, 42 L. ed. 231, 17 Sup. Ct. 887 (1897); Hays v. Pennsylvania Co., 12 Fed. 309 (1882); Menacho v. Ward, 27 Fed. 529 (1886); Missouri Pac. R. R. Co. v. Texas & Pac. R. R. Co., 30 Fed. 2 (1887); Burlington C. R. & N. Ry. Co. v. N. W. Fuel Co., 31 Fed. 652 (1887); Bibber-White Co. v. White River V. El. Co., 175 Fed. 170 (1910).

Alabama.-Mobile & O. R. R. Co. v. Dismukes, 94 Ala. 135, 17 L. R. A. 113 (1891).

Colorado. Bayles v. Kansas Pac. R. R. Co., 13 Colo. 181, 22 Pac. 341, 5 L. R. A. 480 (1889).

Illinois. St. Louis, A. & T. H. R. R. Co. v. Hill, 14 Ill. App. 579 (1884).

Indiana.-Louisville, E. & St. L. C. R. Co. v. Wilson, 132 Ind. 517, 32 N. E. 311 (1892).

Iowa. Cook v. Chicago, R. I. & P. Ry. Co., 81 Iowa, 551, 46 N. W. 1080, 25 Am. St. Rep. 512, 9 L. R. A. 764 (1890).

Missouri.-Christie v. Missouri, P. R. R. Co., 94 Mo. 453, 7 S. W. 567 (1888).

New Hampshire.-McDuffee v. Portland & R. R. R. Co., 52 N. H. 430, 13 Am. Rep. 72 (1873). 327 Fed. 529 (1886).