REASONABLENESS QUESTION OF FACT.-Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197; Cincinnati, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 184.

A finding of fact by the commission as to the reasonableness of the rate, which has been approved by the Circuit Court, will not usually be reviewed by the Supreme Court. Cincinnati, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 184.

"The question of reasonableness of the rate charged for transportation by a railroad company is peculiarly a question for judicial investigation and decision." Tift v. Southern R. Co., (1903) 123 Fed. Rep. 795, citing Chicago, etc., R. Co. v. Minnesota, (1890) 134 U. S. 418; U. S. v. Missouri Pac. R. Co., (1894) 65 Fed. Rep. 903; Interstate Commerce Commission v. Western, etc., R. Co., (1898) 88 Fed. Rep. 186.

RATES

UNREASONABLY LOW.-Rates may be unreasonable because too low as well as because too high. Interstate Commerce Commission v. Cincinnati, etc., R. Co., (1897) 167 U. S. 511.

But the carrier may reduce its rates as far as it pleases below what is reasonable and a fair compensation for the services rendered, without violating the Act; and such reduction compels no change by its competitor or any other company. Chicago, etc., R. Co. v. Osborne, (C. C. A. 1892) 52 Fed. Rep. 914.

COMPARISON OF RATES.-The particular rate may be compared with the rate charged elsewhere for a similar service in determining whether or not such rate is reasonable and just. Interstate Commerce Commission East Tennessee, etc., R. Co., (1898) 85 Fed. Rep. 107.

v.

But such other rates are merely evidence of reasonableness and are not conclusive that a different rate is either unreasonable or unjust. Interstate Commerce Commission v. Louisville, etc., R. Co., (1896) 73 Fed. Rep. 409.

The rates at competitive points may be compared in determining what are reasonable rates at noncompetitive points. Van Patten v. Chicago, etc., R. Co., (1897) 81 Fed. Rep. 545.

Evidence merely tending to show that a rate is too high as compared with the rate to other points is insufficient to sustain a finding that the former rate is unjust and unreasonable

in itself. Interstate Commerce Commission v. Nashville, etc., R. Co., (C. C. A. 1903) 120 Fed. Rep. 934.

The fact that a joint through rate over the entire length of the joint line is less than the rate to intermediate points is insufficient to show that the intermediate rate is unjust or unreasonable. Allen v. Oregon R., etc., Co., (1899) 98 Fed. Rep. 17.

EQUALITY OF RATES THE OBJECT SOUGHT.-Interstate Commerce Commission v. East Tennessee, etc., R. Co., (1898) 85 Fed. Rep. 107.

PARTY-RATE TICKETS for the transportation of several persons may be issued for a less proportionate rate than individual tickets without rendering the individual rate unjust or unreasonable. Interstate Commerce Commission v. Alabama Midland R. Co., (1897) 168 U. S. 165, citing Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263, which affirmed (1890) 43 Fed. Rep. 37.

LOWER SUMMER RATES NOT UNLAWFUL where such rates are necessary to keep cars employed and are offered all persons on equal terms. Interstate Commerce Commission v. Louisville, etc., R. Co., (1896) 73 Fed. Rep. 409.

LONG AND SHORT HAUL RATES.-The charge for a longer haul may be considered in determining whether or not the short haul rate is reasonable and just. Interstate Commerce Commission v. East Tennessee, etc., R. Co., (1898) 85 Fed. Rep. 107.

But a higher short haul rate is not necessarily unreasonable. Interstate Commerce Commission v. Western, etc., R. Co., (1898) 88 Fed. Rep. 186.

THE AVERAGE cost of carriage UPON THE ENTIRE SYSTEM is an insufficient basis for concluding that the rate charged upon a particular portion of the system is unjust or unreasonable. Interstate Commerce Commission v. Lehigh Valley R. Co., (1896) 74 Fed. Rep. 784.

BURDEN OF PROOF.-The burden of showing that a particular rate is unreasonable or unjust is upon the complainant. Van Patten v. Chicago, etc., R. Co., (1897) 81 Fed. Rep. 545; Interstate Commerce Commission บ. Nashville, etc., R. Co., (C. C. A. 1903) 120 Fed. Rep. 935.

EFFECT OF PUBLISHED SCHEDULE RATE. The rate adopted, printed, and posted as required by section 6 is prima facie a reasonable rate. Kinnavey v. Terminal R. Assoc., (1897) 81 Fed. Rep. 802.

And it has been held that in an action for damages for charging unrea

sonable rates, the published schedule rate is conclusively taken as a reasonable rate, and if no more is charged there can be no recovery. Van Patten

v. Chicago, etc., R. Co., (1897) 81 Fed. Rep. 545, holding that courts and juries cannot resort to any other standard.

CONSTRUCTION AND OPERATION IN GENERAL.

SECTION MODELED ON ENGLISH ACT.This section is modeled on section 90, known as the "equality clause" of the English Act of 1845. Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197.

PURPOSE IS TO PREVENT DISCRIMINATION BETWEEN SHIPPERS.-The purpose of the second section of the act is to enforce equality between shippers over the same line, and to prohibit 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. Interstate Commerce Commission v. Alabama Midland R. Co., (1897) 168 U. S. 144; Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197; Wight v. U. S., (1897) 167 U. S. 512; Interstate Commerce Commission v. Western, etc., R. Co., (1898) 88 Fed. Rep. 186; Kinnavey v. Terminal R. Assoc., (1897) 81 Fed. Rep. 804; Raleigh, etc., R. Co. v. Swanson, (1897) 102 Ga. 758.

COMMON LAW CHANGED BY SECTION.This section changes the common law which did not forbid discrimination in rates. U. S. v. Delaware, etc., R. Co., (1889) 40 Fed. Rep. 101; Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263; Lundquist v. Grand Trunk Western R. Co., (1901) 121 Fed. Rep. 915. DISCRIMINATION BETWEEN LOCALITIES OR IN FACILITIES FURNISHED NOT INCLUDED.-Interstate Commerce Commission v. Western, etc., R. Co., (1898) 88 Fed. Rep. 186.

Unjust discrimination is prohibited by both sections 2 and 3. The former

relates to unjust discrimination in rates; the latter is comprehensive enough standing alone to include every form of unjust discrimination not only in rates but also in the conveniences and facilities supplied to shippers in any of the details of the carrying service. U. S. v. Delaware, etc., R. Co., (1889) 40 Fed. Rep. 101.

ONE ACT MAY VIOLATE EACH OF FIRST FOUR SECTIONS.-See Interstate Commerce Commission v. Western, etc., R. Co., (C. C. A. 1899) 93 Fed. Rep. 83.

ACT INVALIDATES EXISTING CONTRACTS which create unjust discriminations in contravention of its terms. Southern Wire Co. v. St. Louis Bridge, etc., R. Co., (1889) 38 Mo. App. 191, quoting Rothschild v. Wabash R. Co., (1884) 15 Mo. App. 242, reviewing Christie v. Missouri Pac. R. Co., (1887) 94 Mo. 453; Bullard v. Northern Pac. R. Co., (1890) 10 Mont. 168, 45 Am. & Eng. R. Cas. 234; Fitzgerald v. Fitzgerald, etc., Constr. Co., (1894) 41 Neb. 376; Fitzgerald v. Grand Trunk R. Co., (1890) 63 Vt. 169; Kentucky, etc., Bridge Co. v. Louisville, etc., R. Co., (1888) 34 Am. & Eng. R. Cas. 653.

But existing contracts are not invalidated to such an extent as to relieve the carrier of liability for goods carried thereunder. Merchants' Cotton Press, etc., Co. v. Insurance Co. of North America, (1894) 151 U. S. 368, (distinguishing Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263); Insurance Cos. v. Carrier Cos., (1892) 91 Tenn. 537. See also Pond-Decker Lumber Co. v. Spencer, (C. C. A. 1898) 86 Fed. Rep. 846.

CONTRACT IN VIOLATION OF STATUTE VOID.-A special contract for a discriminating rate in violation of the statute is void as to both parties, and

an action founded thereon cannot be maintained. Church v. Minneapolis, etc., R. Co., (1901) 14 S. Dak. 443.

DISCRIMINATION BETWEEN CONNECTING CARRIERS.-Discrimination in rates between conecting railways is illegal where the circumstances and conditions are substantially similar. Augusta Southern R. Co. v. Wrightsville, etc., R. Co., (1896) 74 Fed. Rep. 522.

MISTAKE IN NAMING RATE.-Where the agent of a connecting carrier, by mistake, has given to a shipper an unusually low rate on a shipment of a special and unusual character, and the initial carrier, without knowledge of such rate, breaks its contract of carriage by sending the goods over a different road from that prescribed in the bills of lading, so that the shipper is compelled to pay a much higher rate of freight, the initial carrier cannot escape liability for damages on the ground that the rate given was in violation of the interstate commerce law. Pond-Decker Lumber Co. V. Spencer, (C. C. A. 1898) 86 Fed. Rep. 846.

WHAT CONSTITUTES UNJUST DISCRIMINATION UNDER SECTION 2.

UNJUST DISCRIMINATION DEFINED.U. S. v. Delaware, etc., R. Co., (1889) 40 Fed. Rep. 101; Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 281.

UNJUST

"A conception of discrimination necessarily involves at least two instances of shipment, one of which, in the matter of rates, has fared better than the other, though both, by reason of their similitude in those features named by the act, should have fared alike." U. S. v. Hanley, (1896) 71 Fed. Rep. 674. REASONABLE CHARGES MAY CONSTIDISCRIMINATION.- -A charge may be perfectly reasonable under section 1 of the Act, and yet create an unjust discrimination under section 2. Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263. See also Great Western R. Co. v. Sutton, (1868) L. R. 4 H. L. 226, decided under a similar provision in the English statute.

TUTE

"The reasonableness or justice of the charge which is the subject of section 1 of the Act is not necessarily involved in determining the unjust discrimination which is the subject-matter of section 2. The charge made for transporting freight may be entirely reasonable, and the plaintiff may have no occasion to complain of the intrinsic value of the services rendered, but may be injuriously affected by advan

tages given his competitors in rates of freight. A shipper of interstate commerce is generally a dealer in such commerce; and it is as important for him, in the race of competition, that his competitors get no advantage in freight rates, as it is that he himself pay only reasonable charges for his own shipments. The second section of the act aims to secure equality in rates of all shippers similarly situated, and any favoritism in this particular is declared to be unlawful." Kinnavey v. Terminal R. Assoc., (1897) 81 Fed. Rep. 804.

-

ONLY UNJUST AND UNREASONABLE DISCRIMINATIONS ILLEGAL. - Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263, affirming, (1890) 43 Fed. Rep. 37; Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197; Kentucky, etc., Bridge Co. v. Louisville, etc., R. Co., (1889) 37 Fed. Rep. 567.

But under the language of this section it would seem that any discrimination would be unjust and illegal where the circumstances and conditions are substantially similar.

DISCRIMINATIONS NOT UNLAWFUL UNLESS CIRCUMSTANCES AND CONDITIONS ARE SIMILAR.-Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263, affirming, (1890) 43 Fed. Rep. 37; Cowan v. Bond, (1889) 39 Fed. Rep. 54; U. S. v. Tozer, (1889) 39 Fed. Rep. 369; U. S. v. Egan, (1891) 47 Fed. Rep. 112; Atchison, etc., R. Co. v. Denver, etc., R. Co., (1883) 110 U. S. 667; Gulf, etc., R. Co. v. Miami Steamship Co., (C. C. A. 1898) 86 Fed. Rep. 407; Interstate Commerce Commission Alabama Midland R. Co., (C. C. A. 1896) 74 Fed. Rep. 715, affirmed (1897) 168 U. S. 144; Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197.

v.

"Equality and uniformity of rate, disassociated from considerations of the time, kind, and circumstances of the transaction, is, therefore, not the object aimed at. The object of the statute is to prevent one shipper from getting the advantage over his competitor in the matter of rates only where they both make substantially a like offering to the carrier. can, therefore, be no conviction under this section until it is alleged and proven that an advantage in rates has been given by the carrier to one person over that obtained by another, where both persons, fairly considered, are upon an equality in the time, kind, and circumstances of their offering."

There

U. S. v. Hanley, (1896) 71 Fed. Rep. 673.

"All goods offered for shipment at a certain point must be carried at the established rate for such goods from such point, regardless of the place where they originated." Bigbee, etc., Rivers Packet Co. v. Mobile, etc., R. Co., (1893) 60 Fed. Rep. 545, wherein the court said: "There is a dissimilarity in the circumstance that one lot of cotton came from one point and the other lot from another point. But this is not a substantial dissimilarity such as is contemplated by the law, and it is not every dissimilarity of circumstance or condition that justifies a dissimilarity of rates. 'That some dissimilar conditions justify dissimilarity in rates is true. That remote dissimilarities of condition justify any dissimilarities which the carrier chooses to make is not true.' Texas, etc., R. Co. v. Interstate Commerce Commission, (1893) 20 U. S. App. 1, 57 Fed. Rep. 955. The circumstances and conditions to be considered are those which bear upon the transportation by the particular carrier, and under which such transportation is conducted. They must have direct bearing upon the traffic over the line on which the discrimination is made." Bigbee, etc., Rivers Packet Co. v. Mobile, etc., R. Co., (1893) 60 Fed. Rep. 547.

INEQUALITY OF CONDITIONS JUSTIFIES INEQUALITY OF RATES.-Interstate Commerce Commission v. Louisville, etc., R. Co., (1896) 73 Fed. Rep. 409; Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 281, affirming, (1890) 43 Fed. Rep. 51. See also cases cited supra.

THE CARRIER MUST DETERMINE IN THE FIRST INSTANCE Whether or not the conditions are so substantially similar as to preclude a difference in rates. Interstate Commerce Commission v. Alabama Midland R. Co., (1897) 168 U. S. 169.

The determination of the carrier is subject to revision by the commission and courts. Louisville, etc., R. Co. v. Behlmer, (1900) 175 U. S. 648.

The ultimate power of determining the matter of discriminating rates rests with the courts. Interstate Commerce Commission v. East Tennessee, etc., R. Co., (1898) 85 Fed. Rep. 107; Interstate Commerce Commission v. Alabama Midland R. Co., (1895) 69 Fed. Rep. 227.

SIMILARITY OF CIRCUMSTANCES A QUESTION OF FACT.-Detroit, etc., R. Co. v. Interstate Commerce Commission, (1896) 74 Fed Rep. 803, 43 U. S.

App. 308, citing Palmer v. London, etc., R. Co., (1866) L. R. 1 C. P. 588; Phipps v. London, etc., R. Co., (1892) 2 Q. B. 229.

CIRCUMSTANCES CONSIDERED IN FIXING RATES.-See generally Harris v. Cockermouth, etc., R. Co., (1858) 1 R. & Can. T. Cas. 97, 3 C. B. N. S. 693, 91 E. C. L. 693 (decided under English Traffic Acts).

INTERESTS OF SHIPPERS AND CARRIERS BOTH CONSIDERED.-Interstate Commerce Commission v. Alabama Midland R. Co., (C. C. A. 1896) 74 Fed. Rep. 715; Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197.

v.

ADEQUATE CONSIDERATION FOR REDUCED RATES prevents such rates from constituting unjust discrimination. Interstate Commerce Commission Baltimore, etc., R. Co., (1892) 145 U. S. 281; Interstate Commerce Commission v. Texas, etc., R. Co., (1892) 52 Fed. Rep. 187.

DIFFERENCE IN COST JUSTIFIES DIFFERENCE IN RATES.-Interstate Commerce Commission v. Texas, etc., R. Co., (1892) 52 Fed. Rep. 187, citing U. S. v. Delaware, etc., R. Co., (1889) 40 Fed. Rep. 101.

COMPETITION

CANNOT BE CONSID

ERED. The phrase "under substantially similar circumstances and conditions" as used in this section of the act refers to the matter of carriage, and does not include competition between rival routes. Interstate Commerce Commission v. Alabama Midland R. Co., (1897) 168 U. S. 144 following Wight v. U. S., (1897) 167 U. S. 512; Interstate Commerce Commission v. Texas, etc., R. Co., (1892) 52 Fed. Rep. 187.

There are many expressions in earlier cases which seem to indicate a contrary view. See Interstate Commerce Commission v. Louisville, etc., R. Co., (1896) 73 Fed. Rep. 409; Texas, etc., R. Co., v. Interstate Commerce Commission, (1896) 162 U. S. 197, reversing (C. C. A. 1893) 57 Fed. Rep. 948, 20 U. S. App. 1; Phipps v. London, etc., R. Co., (1892) 2 Q. B. 229, 50 Am. & Eng. R. Cas. 494; Interstate Commerce Commission v. Baltimore, etc., R. Co., (1802) 145 U. S. 263, affirming (1890) 43 Fed. Rep. 37; Interstate Commerce Commission v. Texas, etc., R. Co., (C. C. A. 1893) 57 Fed. Rep. 948, (1892) 52 Fed. Rep. 187.

But in determining whether the circumstances are substantially similar within the meaning of the third and fourth sections of the act relating to undue preference and advantages and

long and short haul rates, competition between rival carriers is a very important consideration. See notes to sections 3 and 4 of the act, infra.

Discrimination in rates in favor of particular shippers cannot be justified solely upon the ground of diverting traffic from rival carriers. Interstate Commerce Commission v. Texas, etc., R. Co., (1892) 52 Fed. Rep. 189; Harris v. Cockermouth, etc., R. Co., (1858) 3 C. B. N. S. 693, 91 E. C. L. 693; Evershed v. London, etc., R. Co., (1877) 2 Q. B. D. 254. Compare Hays v. Pennsylvania Co., (1882) 12 Fed. Rep. 309; Burlington, etc., R. Co. v. Northwestern Fuel Co., (1887) 31 Fed. Rep. 652. MEANING OF LIKE KIND OF TRAFFIC." The phrase "like kind of traffic " means traffic similar in character and cost of transportation but not necessarily identically similar. New York Board of Trade, etc., v. Pennsylvania R. Co., (1891) 3 Int. Com. Rep. 417, 4 Int. Com. C. Rep. 447.

DIFFERENCE IN AMOUNT OF TRAFFIC DOES NOT RENDER SERVICE DISSIMILAR.

U. S. v. Tozer, (1889) 39 Fed. Rep. 369.

GUARANTY OF LARGE AMOUNT JUSTIFIES REDUCED RATES.-But it is not an unjust discrimination for a company to carry at a lower rate in consideration of a guaranty of large quantities and full train loads at regular periods, provided the real object of the company is to obtain a greater remunerative profit by the diminished cost of carriage, although the effect may be to exclude from the lower rate those shippers who cannot give such a guaranty. Interstate Commerce Commission v. Texas, etc., R. Co., (1892) 52 Fed. Rep. 187, citing Nicholson v. Great Western R. Co., (1858) 5 C. B. N. S. 366, 94 E. C. L. 366.

RATES.-A

LOCAL AND THROUGH through rate lower than the intermediate local rate does not constitute unJust discrimination. U. S. v. Tozer, (1889) 39 Fed. Rep. 369; Interstate Commerce Commission v. Baltimore, etc., R. Co., (1890) 43 Fed. Rep. 37; Union Pac. R. Co. v. U. S., (1886) 117 U. S. 355; Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 281; Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197. See also Harris v. Cockermouth, etc., R. Co., (1858) 1 R. & Can. T. Cas. 97, 3 C. B. N. S. 693, 91 E. C. L. 693; Hozier v. Caledonian R. Co., (1855) 1 R. & Can. T. Cas. 27, 17 Sess. Cas. 302 (decided under the English Traffic Act).

The circumstances and conditions of through traffic are substantially different from those of local traffic.

Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197; Union Pac. R. Co. v. U. S., (1886) 117 U. S. 355.

The mere fact that in any particular case the disparity between through and local rates was considerable will not warrant the circuit court of appeals in finding that such disparity constitutes an undue discrimination, especially where the disparity was not complained of by any one affected thereby. Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197.

If the local rates are reasonable, it does not constitute unlawful discrimination for a carrier to accept business from other carriers on through rates which, when dividel among them, will give to any one of them less for its division than its own local rates, Kentucky, etc., Bridge Co. v. Louisville, etc., R. Co., (1889) 37 Fed. Rep. 567.

A connecting carrier operating wholly within one state may carry foreign through freight at less than its local rates for traffic originating upon its own line. Chicago, etc., R. Co. v. Osborne, (1892) 10 U. S. App. 430, distinguished in Cincinnati, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 184.

PASSES CONSTITUTE UNLAWFUL DISCRIMINATION.-Er p. Koehler, (1887) 31 Fed. Rep. 315; In re Charge to Grand Jury, (1895) 66 Fed. Rep. 146.

PARTY-RATE TICKETS NOT UNLAWFUL.-Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263, affirming (1890) 43 Fed. Rep. 37, and followed in Foster v. Cleveland, etc., R. Co., (1893) 56 Fed. Rep. 434; Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197; Interstate Commerce Commission v. Alabama Midland R. Co., (1897) 168 U. S. 165.

The transportation of ten persons on a single ticket is not substantially identical with the transportation of one person. Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263.

But such party-rate tickets must be available to the public generally. Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263.

ROUND-TRIP TICKETS AT REDUCED RATES do not constitute unjust discrimination. Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263.

REBATES.-Giving rebates to one shipper and denying them to others