their goods from an outlying district were charged only a fifteen-cent rate, the court sustained a demurrer to the bill, taking the ground that there was a difference shown in the circumstances. The argument of Mr. Justice Cooper in writing the opinion of the court was: "In determining whether or not a company has given undue preference to a particular person, the court may look to the interests of the company. In other words, if the charge on the goods of the party complaining is reasonable, and such as the company would be required to adhere to as to all persons in like condition, it may, nevertheless, lower the charge to another person if it be to the advantage of the company, not inconsistent with the public interest, and based on a sufficient reason. It is obvious that the intention of the defendant, in this instance, was not to discriminate against the complainants in favor of any person of the same place, and in the same condition. His object was to get business for his road from persons at a distance from its terminus, which otherwise would reach their destination by a different route. Under these circumstances we cannot see that the contracts complained of are against public policy, or that the complainants have been damaged, if the charges on their goods were reasonable." 64

§ 676. Such concessions forbidden by later cases.

But such concessions have always been forbidden in the cases under the Act as illegal discrimination. Thus in one proceeding before the Commission,65 the facts shown were that a higher rate was charged to goods brought to one terminus for consumption there, than for goods which were to be carted beyond to another district, and in de

64 In the important case of Johnson v. Pensacola & P. R. R., 16 Fla. 623, 26 Am. Rep. 731, the facts and the decision were the same.

65 Cary v. Eureka Springs Ry., 7 I. C. C. Rep. 286.

Competition is not to be considered in determining a question of discrimination under section 2. In re Advances on Manganese Ore, 25 I. C. C. 663.

claring this illegal, it was said: "In collecting more from complainants and others for carrying goods to Eureka Springs, not to be forwarded, than they accept for carrying goods of the same classes from the same places to Eureka Springs to be forwarded to points in said Harrison transportation district, the defendants receive greater compensation from complainants than from other persons for 'a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions,' and are guilty of unjust discrimination; and in thus denying to complainants and other shippers of articles to Eureka Springs, for use there or for distribution from that place, the same transportation charges which they accord to shippers and receivers of like articles there to be forwarded to Harrison and other places for distribution, the defendants subject the complainants, the business in which they are engaged, and the city of Eureka Springs to unreasonable disadvantage and give to Harrison and such other places, and to shippers and receivers of articles of freight at such other localities, undue preference." 66

§ 677. Shippers making expensive preparations.

In Brundred v. Rice,67 a shipper of oil set forth in his complaint a most extraordinary state of affairs-a contract whereby a railroad company bound itself to carry for one shipper crude petroleum at half the rate it agreed to charge all others, and to pay such favored shipper one-half the amount collected from others, in consideration

66 Compare Bigbee & W. R. Packet Co. v. Mobile & Ohio R. R., 60 Fed. 545, where the court laid it down as a fundamental principle that 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.

Threat of compress company to divert its cotton traffic to another railroad is not competition that relieves from the operation of the statute. Muskogee Commercial Club v. M., K. & T. R. Co., 12 I. C. C. 312.

67 49 Ohio St. 640, 12 N. E. 169, 34 Am. St. Rep. 589.

of his agreeing to establish and maintain a system of pipe lines to its road. An extract from the per curiam opinion follows: "That the contract between Brundred and his associates was against public policy, and void, will hardly admit of a question. As said by Baxter, J., in Handy v. Railroad Co.:68 'Railroads are constructed for the common and equal benefit of all persons wishing to avail themselves of the facilities which they afford. While the legal title thereof is in the corporation or individuals owning them, and to that extent private property, they are, by the law and consent of their owners, dedicated to the public use. Except in the mode of using them, every citizen has the same right to demand the services of railroads, on equal terms, that they have to the use of a public highway, or the government mails.' Whatever may have been the financial condition of the railroad company, it was not warranted in making a contract by which it bound itself to carry for one shipper at half the rate it agreed to charge all others for the same service, in consideration of his agreeing to establish a system of pipe lines to its road; at the same time and for the same consideration binding itself to charge all others double the amount as a fixed, open rate, and to pay to such favored shipper one-half of it when collected."

§ 678. Additional services performed for certain shippers. Upon the general principles now under discussion, it will constitute discrimination to perform additional services for certain shippers in order to get their business. The issue has several times been raised whether it would be permissible for a railroad to make allowance for cartage to certain shippers distant from the station, while making no such allowance to other shippers, and the decision has always been that this would be illegal discrimination. For the feeling has been universal that the varying cost of shippers in delivering to the carrier for shipment can

68 31 Fed. 689.

have no bearing on the case. In the most important case on this point,69 Mr. Justice Brewer said: "It is contended by the defendant that it was necessary for the Baltimore & Ohio Company to offer this inducement to Mr. Bruening in order to get his business, and not necessary to make the like offer to Mr. Wolf, because he would have to go to the expense of carting, by whichever road he transported; that therefore the traffic was not 'under substantially similar circumstances and conditions,' within the terms of section 2. We are unable to concur in this view. Whatever the Baltimore & Ohio Company might lawfully do to draw business from a competing line, whatever inducements it might offer to the customers of that competing line to induce them to change their carrier, is not a question involved in this case. The wrong prohibited by the section is a discrimination between shippers. 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." 70

§ 679. Concessions to certain localities.

Whether a concession made in certain localities constitutes discrimination seems not to be altogether settled, although on the authorities it would seem to be clear enough that differences in the basis upon which service is rendered in various localities do not in themselves constitute discrimination. The Supreme Court has held that giving cartage to the patrons in one city while making no such provision in others named, did not constitute a violation of the Act.71 In a recent proceeding before the Commission, ing Co.'s Case, 4 Can. Ry. Cas. 259.

69 Wight v. United States, 167 U. S. 512, 42 L. ed. 258, 17 Sup. Ct. 822.

70 See to the same effect, Hezel Milling Co. v. St. Louis, A. & T. H. R. R., 5 I. C. C. Rep. 57; Chicago F. P. C. Co. v. Chicago & N. W.Ry., 8 I. C. C. Rep. 316; The Brandt Mill

71 Interstate Commerce Commission v. Detroit, G. H. &. M. Ry., 167 U. S. 633, 42 L. ed. 306, 17 Sup. Ct. 986.

See also Re Wharfage Charges at Texas City, 26 I. C. C. 695, discussed in the next sentence.

of his agreeing to establish and maintain a system of pipe lines to its road. An extract from the per curiam opinion follows: "That the contract between Brundred and his associates was against public policy, and void, will hardly admit of a question. As said by Baxter, J., in Handy v. Railroad Co.:68 'Railroads are constructed for the common and equal benefit of all persons wishing to avail themselves of the facilities which they afford. While the legal title thereof is in the corporation or individuals owning them, and to that extent private property, they are, by the law and consent of their owners, dedicated to the public use. Except in the mode of using them, every citizen has the same right to demand the services of railroads, on equal terms, that they have to the use of a public highway, or the government mails.' Whatever may have been the financial condition of the railroad company, it was not warranted in making a contract by which it bound itself to carry for one shipper at half the rate it agreed to charge all others for the same service, in consideration of his agreeing to establish a system of pipe lines to its road; at the same time and for the same consideration binding itself to charge all others double the amount as a fixed, open rate, and to pay to such favored shipper one-half of it when collected."

§ 678. Additional services performed for certain shippers. Upon the general principles now under discussion, it will constitute discrimination to perform additional services for certain shippers in order to get their business. The issue has several times been raised whether it would be permissible for a railroad to make allowance for cartage to certain shippers distant from the station, while making no such allowance to other shippers, and the decision has always been that this would be illegal discrimination. For the feeling has been universal that the varying cost. of shippers in delivering to the carrier for shipment can

68 31 Fed. 689.