the universally accepted fact that a man may buy, contract, or manufacture on a large scale cheaper proportionately than upon a small scale, this is impossible." § 689. Special kinds of passenger transportation. The Commission has no authority under the Act to require carriers to establish special fares, based upon less than the normal passenger-mile revenue, for the use of passengers on particular occasions or for special purposes.93 But where a carrier has undertaken a definite and regular commutation service, the power as well as the duty of the Commission, under section 1, to examine into the reasonableness of the charges exacted, when complaint has been made, seems to be beyond question.94 Upon duly established tariff authority therefor, the initial carrier may issue to a passenger a through ticket for the sum of two or more duly established fares applicable over the several connecting roads, composing the through line from the starting point to destination, which will cover the entire journey that the passenger desires to take.95 It would seem to follow from what has been said that the issuance of mileage tickets is, therefore, optional.96 And a special rate may be conditioned upon a certain number attending a convention under certain conditions.97 It has long been established that party rates cannot be limited to particular classes, but must be opened to general public.98 Apparently then no discrimination is shown from maintaining an excursion rate to and from one town, and refusing it at another." But the Commission has recently held that a railroad ought to sell a 50-trip family ticket 93 Field v. Southern R., 11 I. C. C. 298. 94 Commutation Rate Case, 21 I. C. C. 428; see also Edelsten v. Pa. R. R., 26 I. C. C. 359. 95 In re Mileage, Excursion and Commutation Tickets, 23 I. C. C. 95. 96 Eschner v. Pennsylvania R. R., 18 I. C. C. 60... "National Ass'n of Letter Carriers v. A., T. & S. F. Ry., 20 I. C. C. 6. 98 Re Party Rate Tickets, 12 I. C. C. 95; see also Koch Secret Service v. Louisville & N. Ry., 11 I. C. C. 523. 99 Ballin v. S. P. Co., 19 I. C. C. R. 503. from Connecticut so long as they are sold from points in New York State.1 Reduced rates restricted to school children have been said to be discriminatory; but a carrier may sell children's tickets, open to all purchasers.* Topic C. Rebates to Exclusive Shippers § 690. Lower rates formerly made to exclusive shippers. The advantages which may accrue to the railroad company if it may make lower rates to those who will ship by it exclusively are plain; and this policy would largely prevail in making rates between competitive points doubtless if it were not for the recognition of its essential illegality. That such a policy may be advantageous to the company which employs it may be granted, but it has already been seen that those who conduct a public employment must forego many methods of getting business and holding it which are permissible in private affairs.1 The chief argument made in favor of such specially lower rates to those who will ship exclusively is to say that there is in reality no personal discrimination in such an arrangement when it is open to all who choose to conform to the condition. But this is as inconclusive here as it is when used in support of other kinds of discrimination between different shippers, for if the condition is one which it is inconsistent with public duty to impose, there is no legal justification for any departure from equality of rates to all who ask the same transportation for like goods." 1 Commutation Rate Case, 27 I. C. C. 549. 2 In re Restricted Rates, 20 I. C. C. 426. 'Re Commutation, 17 I. C. C. 144. 'See Chapter X, supra. By the general rule it would seem to constitute illegal discrimination to give rebates to exclusive shippers. Menacho v. Ward, 27 Fed. 529, B. & W. 372; Louisville, E. & St. L. Con. R. Co. v. Wilson, 132 Ind. 517, 32 N. E. 311, 18 L. R. A. 105 and note; 5 But see Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292, 42 Am. $691. Such discriminations foster monopolies. 6 One of the leading cases against personal discrimination is Schofield v. Lake Shore & Michigan Southern Railway Company. In that case it appeared that the railway company, having tariff rates for the public generally, contracted with the Standard Oil Company that, in consideration of said company giving to the railway its entire freight business in the products of petroleum, they would transport such freight for the company at certain rates, about ten cents per barrel cheaper than for any other customers whatsoever. The prayer of the bill brought by shippers for relief from this situation was granted in an elaborate opinion, the tenor of which may be judged from the following paragraph: "The principle is opposed to a sound public policy. It would build and foster monopolies, add largely to the accumulated power of capital and money, and drive out all enterprise not backed by overshadowing wealth. With the doctrine as contended for by the defendant, recognized and enforced by the courts, what will prevent the great grain interests of the northwest, or the coal and iron interest of Pennsylvania or any of the great commercial interests of the country, bound together by the power and influence of aggregate wealth, and in league with the railroads of the land, driving to the wall all private enterprises struggling for existence, and with an iron hand thrusting back all but themselves?" 7 § 692. Shippers who agree to give all their business. The mere fact that a shipper agrees to give all his business to the carrier does not justify a concession from regular rates. Such inducements seem once to have been held out to shippers commonly in England; but the decisions of the courts have been against them. They have uniformly St. Rep. 712, 25 L. R. A. 674, and Fitchburg R. R. v. Gage, 12 Gray (Mass.), 393. 43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846. 8 See further, Louisville, E. & St. L. C. R. R. v. Wilson, 132 Ind. 517, 32 N. E. 311. 8 Baxendale v. Great Western R. Co., 5 C. B. (N. S.) 309; Diphwys held it unlawful preference to give reduced rates in consideration of an agreement to employ other lines of the company for the carriage of other traffic or to employ the company in other distinct business; which is obviously good law, as the carriage of goods to other points does not affect the cost of carriage between the particular points." Upon the same principles the railways have been forbidden to charge a higher wharfage rate on goods to be conveyed by another railway 10 or to grant a reduced rate in consideration of a contract to carry all of certain goods and to prevent their being carried by water or other means.11 It seems plain that in all of these cases no other decisions would have been justifiable than those which were given, because the policies pursued by the railways in all of these cases seem opposed to the public duty which the common carrier owes the shipping public. § 693. Consideration of the cost of serving. Upon the principles set forth in the preceding paragraph it will be plain why it is permissible to make differences in the rating of the same goods based on the nature and size of the package, large packages being given relatively lower rates than small packages. And likewise if the shipment is in a form more convenient for handling, as in casks rather than in cases, or if the freight is tendered in a form permitting a greater carload, the difference between cotton in bulk and in tightly compressed bales for example, lower rates may be given proportionate to the difference in the cost of service.12 "We are not unmind Casson Slate Co. v. Festining R. Co., 2 Nev. & Mac. 73; Bellsdyke Coal Co. v. N. B. R. Co., 2 Nev. & Mac. 105. Baxendale v. Great Western R. Co., 5 C. B. (N. S.) 309; Twellis v. Pa. R. R. Co., 3 Am. L. Reg. (N. S.) 728; Bellsdyke Coal Co. v. North British R. Co., 2 Nev. & Mac. 105. 10 Toomer v. London R. Co., 3 Nev. & Mac. 79. 11 Garton v. Bristol & E. R. R. Co., 1 Nev. & Mac. 218. 12 These general considerations have already been discussed in Chapter XI. See The Western Classification Case, 25 I. C. C. 244, passim. ful of the rule which permits a common carrier to discriminate in favor of a shipper who transports large quantities of a given commodity in one parcel at a time, as against a shipper who transports the broken packages. Such discrimination is rendered necessary by the increased expense of handling, storing, and caring for the smaller quantities, and is not unreasonable." 12a § 694. Shippers requiring less service. At common law formerly it could be shown in any case that the conditions under which particular shipments are made produce such economies in handling the traffic as to justify the reductions made in the rates. An excellent case to illustrate this general doctrine is American Central Insurance Company v. Chicago & Alton Railway Company, 13 where the issue was raised whether a stipulation in a contract between a railroad company and its elevator lessee by which the former was to carry the latter's grain from the elevator in carload lots at less rate than its regular tariff, was justifiable. In holding that this did not constitute illegal discrimination Judge Smith said: "From the face of the lease it very clearly appears that the service for which the rebate was to be allowed the lessee, and those claiming under it, was not the same nor as great as the ordinary shipper. The transient shipper furnishes no warehouse for the storage nor any supervision of his grain nor the labor necessary to handle the same, but these are supplied wholly by the carrier. Not so of the lessee of the carrier who constructs his own storehouse and also supplies at his own expense the supervision and labor necessary for the care, storage and loading of his grain, the carrier thereby escaping much expense that it must incur in case of the transient shipper." 14 12 Louisville, E. & St. L. C. Ry. v. Wilson, 132 Ind. 517, 32 N. E. 211. 13 74 Mo. App. 89. 14 See Root v. Long Island R. R., 114 N. Y. 330, 21 N. E. 403, 11 Am. St. Rep. 643, 4 L. R. A. 33, laying down the same principles in sweeping generalizations. |