supplied with reasonable facilities and accommodations on reasonable terms, cannot complain that B is violating his public duty. There is, in such a case, no discrimination, reasonable or unreasonable, in that reasonable service for a reasonable price which is the common right. A person who is a common carrier may devote to the needy, in any necessary form of relief, all the reasonable profits of his business. He has the same right that anyone else has to give money or goods or transportation to the poor. But it is neither his legal duty to be charitable at his own expense, nor his legal right to be charitable at the expense of those whose servant he is." 1304. Concessions for government business. It is generally said that special reductions or even free service may be given a government, of whatever grade it may be, without its being considered undue preference or illegal discrimination. Thus the Supreme Court of the United States has squarely said that as a common law matter regardless of whether the exception was specifically made in the legislation the property of United States, State, county or municipal governments might be transported on more favorable terms than for other parties without its being illegal discrimination. It is certainly true that a municipal government operating its own plant N. W. 92 (1898), charitable institutions. New York. That a telephone company allowed a discount of 25% to clergymen, to charitable institutions, and to the city of New York, has been held not to amount to an unfair or unreasonable discrimination as against a department store service. New York Telephone Co. v. Siegel-Cooper Co., 121 N. Y. Supp. 1033 (1910). Washington.-Twitchell v. Spokane, 55 Wash. 86, 104 Pac. 150, 24 L. R. A. (N. S.) 290 (1909), charitable purposes. 1 United States. Interstate Comm. Comm. v. Baltimore & O. R. R. Co., 145 U. S. 163, 36 L. ed. 699, 12 Sup. Ct. 844 (1892). New York.-New York Telephone Co. v. Siegel-Cooper Co., 121 N. Y. Supp. 1033 (1910). may serve its own departments without making charges against itself without any taxpayer having any complaint.1 It is, moreover, well established that in granting any legal privileges to a public service company, if the franchise conferred be no more than incorporation itself, the granting government, of whatever grade it may be, may stipulate for free service for its own public purposes. And it may also be provided that certain public employees shall have transportation at special rates. It should be noted, however, that there is often special legislation forbidding public officers to accept free transportation.3 § 1305. Reductions for general classes. 2 The suggestion is made in several cases that general reductions may be made to further certain policies, provided that the public interests are thereby promoted. It is urged that such concessions if permitted will turn out for the best interests of all concerned in the end. The weight of this line of argument may be judged by the following abstract of part of the opinion of Judge Baxter in Hays v. Pennsylvania Company.1 He said in effect that it is only when the discrimination inures to the undue advantage of one man, in consequence of some injustice inflicted on another, that the law intervenes for the pro 1 Michigan.-Preston v. Water Commissioners, 117 Mich. 589, 76 N. W. 92 (1898). Washington.-Twitchell v. Spokane, 55 Wash. 86, 104 Pac. 150, 24 L. R. A. (N. S.) 290 (1909). 2 United States.-Waterworks Co. v. Kansas City, 4 McCreary, 198 (1882), public buildings. Idaho. City of Boise City v. Artesian Hot & Cold Water Co., 4 Idaho, 351, 39 Pac. 562 (1895), hydrant service. & Hudson River Ry. Co., 146 N. Y. 290, 40 N. E. 867 (1895). But in Oklahoma City v. Oklahoma Ry. Co., 20 Okla. 1, 93 Pac. 48 (1907), it was held that a municipality may stipulate for transportation free of policemen, firemen, mail carriers, and small children. 4 12 Fed. 309 (1882). This principle is fully set forth in Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292, 42 Am. St. Rep. 712, 25 L. R. A. 674 (1894). tection of the latter. Harmless discrimination such as a concession to a general class might be indulged in. For instance, he said that the carrying of supplies at nominal rates to communities scourged by disease or rendered destitute by floods or other casualty would not entitle other communities to have their supplies carried at the same rate. Furthermore it is the custom as he pointed out for railroad companies to carry fertilizers and machinery for mining and manufacturing purposes to be employed along the lines of their respective roads to develop the country and stimulate productions, as a means of insuring a permanent increase of their business at lower rates than are charged on other classes of freight; and such discrimination while it tends to advance the interest of all worked no injustice, he thought, to anyone.1 § 1306. No obligation to grant such concessions. It should be noted however, here as throughout this whole discussion, that there is no common law obligation resting upon the company to give concesssions of any kind from the rates others pay for the same service. This makes one doubtful of the legal character of these exceptions; for were there imperative reasons dictating such exceptions a company could not refuse to make them in any case. But it is well agreed that the company need not make any such concessions. It may even refuse to the United States government a party rate ticket for soldiers which it usually sells to other managers of travelers in groups, as 1 In Hoover v. Penna. R. R. Co., 156 Pa. St. 220, 27 Atl. 282, 36 Am. St. Rep. 43, 22 L. R. A. 263 (1893), discussed fully in § 1333, infra, it was held in accordance with these principles that a lower rate might be made for coal brought in by factories than for coal consigned to coal yards. In Hilton Lumber Co. v. Atlantic C. L. Ry. Co., 136 N. C. 479, 48 S. E. 813 (1904), fully discussed in § 1334, infra, these concessions were held illegal in the case involving a lower rate on lumber made to a shipper of furniture. 1 one extreme case holds. Moreover it may discriminate in granting its favors, which is proof positive that this is no part of its legal obligation. Thus a particular minister of the gospel whom a carrier refused to carry for the customary reduced fare charged such persons has no right of action against the carrier because of the discrimination.2 The most that these exceptions amount to, therefore, is that there is a sufficient public policy in them to justify the proprietors of a public business in extending these special favors. 1 United States v. Chicago & N. W. R. R. Co., 127 Fed. 785 (1904). 2 Illinois C. R. Co. v. Dunnigan (Miss.), 50 So. 443, 24 L. R. A. (N. S.) 503 (1909). In Carlisle v. Carlisle G. & Water Co. (Pa. St.), 4 Atl. 179 (1886), it was held that a water company which had been giving hydrant service to a community free might at any time begin to charge a proper rate for that service. In People's Gaslight Co. v. Hale, 94 Ill. App. 406 (1900), it was held that a gas company which has formerly made a lower rate for gas used for fuel purposes might begin to charge the same price for gas used for any purpose. CHAPTER XXXVIII ILLEGAL DISCRIMINATION § 1310. What constitutes illegal discrimination. Topic A. Concessions to get Competitive Business § 1311. Concessions once allowed in competition. 1312. Competitive conditions no justification. 1313. Concessions to get outside business. 1314. Rebating to get business illegal. 1315. Competitive rates for through business. 1316. Additional services performed for certain customers. 1317. Customers induced to make expensive preparations. Topic B. Concessions to Large Customers § 1318. Whether concessions may be made to large customers. 1321. Authority for such differentials. 1322. Prevelant doctrine against such concessions. 1323. Services to large and small customers practically identical. 1324. Company need never grant such reductions. Topic C. Rebates to Exclusive Customers § 1325. Whether exclusive policies may be adopted. 1326. Such discriminations foster monopolies. 1327. Those who use rival line charged more than usual. 1328. Lower rates to exclusive customers sometimes permitted. 1329. Comparison of these decisions. 1330. Customers contracting for large amounts. 1331. Customers under exclusive contract to give business. Topic D. Concessions for Special Kinds of Business § 1332. Different rates for service differently employed. 1333. Such rates allowed by some cases. 1334. Repudiation of this doctrine. 1335. Supply put to different uses. 1336. Discrimination in such supply. 1337. Commodities carried of different character. 1338. Supply under different conditions. |