§ 695. Shippers who agree to furnish large quantities. It would seem to follow, although this has appeared to some courts more doubtful, that shippers who agree to furnish large quantities of freight should have no better standing. It is true that the advantage to the railroad company may be proved, but the injustice to the small shipper who can make no such undertaking remains the controlling factor in the situation. This was well shown in an Indiana case 15 where the court said: "It is contended by the appellant that, in view of the fact it secured by its contract with Dickason a certain income of $7,000 per month, it could as well afford to carry ties for him at $14 per car as to carry them for the appellees at $24 per car. We find it unnecessary to inquire whether the appellant is correct or otherwise in this contention, for, as we understand the law, a railroad company engaged in the business of a common carrier is not permitted by the law to discriminate in favor of a shipper who is able to furnish a large amount of freight over one engaged in the same business who is unable to furnish the same quantity as that shipped by his more opulent rival. The reasons for prohibiting such discrimination are well stated in the case of Hays v. Pennsylvania Co. In our opinion, the fact that Dickason was able to furnish a larger number of carloads of ties for shipment than the appellees could constituted no sufficient reason for a discrimination in his favor over the rates charged to the appellees." 16 § 696. Charging other shippers more than contract rates. In the interesting case of Houston and Texas Central Railroad Company v. Rust, 17 the railroad and certain shippers entered into an agreement by which the shippers promised to ship all their goods and the railroad under 15 Louisville, E. & St. L. C. R. R. v. Wilson, 132 Ind. 517, 32 N. E. 311. 16 R. R. Co. et als., Appellants, v. R. R. et al. 284. An agreement between a corpora tion to give all its traffic to a R. R. Co. in consideration that R. R. Co. will subscribe to corporation bonds, is based upon sufficient consideration. 17 53 Tex. 98. took to give a certain rate. Later they raised other rates; but this in itself this court held not to be discrimination against other shippers. "It ought to have been submitted to the jury to determine whether under all the facts of the case, the defendant charged the plaintiffs a rate beyond what was reasonable, and beyond the price which was exacted of the public generally at the times when the plaintiffs shipped their cotton on the defendant's railroad. And, if, although the plaintiffs were not required to pay a higher rate than the public generally, yet if the defendant had allowed to certain particular persons or merchants in a certain particular locality, more advantageous terms than had been given to the public generally, or to the plaintiffs, it ought to have been submitted as an issue of fact for the jury to determine, whether (under appropriate instructions applicable to the subject), under all the evidence applicable to the question, such preference so given was a fair and legitimate one; one justified by the common-law rule forbidding the carrier to give one special privileges which it denies another, but which at the same time does not exclude as forbidden contracts for transportation at a less rate in special cases, where, under the circumstances, the discrimination appears reasonable." 18 § 697. Competitive rates for through business. But against preferential devices to hold business the recent American cases are clearly opposed. Thus in one Federal case, it was held that a lower rate could not be made for the transportation of goods from B to C which came from A, whence a competitive line to C ran.19 And in a recent State case it was held that a lower rate could not be made for transportation from A to B of goods 18 See also Avinger v. So. Car. Ry., 29 S. C. 265, 7 S. E. 493, 13 Am. St. Rep. 716. 19 Bigbee & W. R. P. Co. v. Mobile & O. R., 60 Fed. 545. See also Brandt Milling Co. Case, 4 Can. Ry. Cas. 259. § 695. Shippers who agree to furnish large quantities. It would seem to follow, although this has appeared to some courts more doubtful, that shippers who agree to furnish large quantities of freight should have no better standing. It is true that the advantage to the railroad company may be proved, but the injustice to the small shipper who can make no such undertaking remains the controlling factor in the situation. This was well shown in an Indiana case 15 where the court said: "It is contended by the appellant that, in view of the fact it secured by its contract with Dickason a certain income of $7,000 per month, it could as well afford to carry ties for him at $14 per car as to carry them for the appellees at $24 per car. We find it unnecessary to inquire whether the appellant is correct or otherwise in this contention, for, as we understand the law, a railroad company engaged in the business of a common carrier is not permitted by the law to discriminate in favor of a shipper who is able to furnish a large amount of freight over one engaged in the same business who is unable to furnish the same quantity as that shipped by his more opulent rival. The reasons for prohibiting such discrimination are well stated in the case of Hays v. Pennsylvania Co. In our opinion, the fact that Dickason was able to furnish a larger number of carloads of ties for shipment than the appellees could constituted no sufficient reason for a discrimination in his favor over the rates charged to the appellees." 16 § 696. Charging other shippers more than contract rates. In the interesting case of Houston and Texas Central Railroad Company v. Rust, 17 the railroad and certain shippers entered into an agreement by which the shippers promised to ship all their goods and the railroad under 15 Louisville, E. & St. L. C. R. R. v. Wilson, 132 Ind. 517, 32 N. E. 311. 16 R. R. Co. et als., Appellants, v. R. R. et al. 284. An agreement between a corpora tion to give all its traffic to a R. R. Co. in consideration that R. R. Co. will subscribe to corporation bonds, is based upon sufficient consideration. 17 53 Tex. 98. took to give a certain rate. Later they raised other rates; but this in itself this court held not to be discrimination against other shippers. "It ought to have been submitted to the jury to determine whether under all the facts of the case, the defendant charged the plaintiffs a rate beyond what was reasonable, and beyond the price which was exacted of the public generally at the times when the plaintiffs shipped their cotton on the defendant's railroad. And, if, although the plaintiffs were not required to pay a higher rate than the public generally, yet if the defendant had allowed to certain particular persons or merchants in a certain particular locality, more advantageous terms than had been given to the public generally, or to the plaintiffs, it ought to have been submitted as an issue of fact for the jury to determine, whether (under appropriate instructions applicable to the subject), under all the evidence applicable to the question, such preference so given was a fair and legitimate one; one justified by the common-law rule forbidding the carrier to give one special privileges which it denies another, but which at the same time does not exclude as forbidden contracts for transportation at a less rate in special cases, where, under the circumstances, the discrimination appears reasonable." 18 § 697. Competitive rates for through business. But against preferential devices to hold business the recent American cases are clearly opposed. Thus in one Federal case, it was held that a lower rate could not be made for the transportation of goods from B to C which came from A, whence a competitive line to C ran.19 And in a recent State case it was held that a lower rate could not be made for transportation from A to B of goods 18 See also Avinger v. So. Car. Ry., 29 S. C. 265, 7 S. E. 493, 13 Am. St. Rep. 716. 19 Bigbee & W. R. P. Co. v. Mobile & O. R., 60 Fed. 545. See also Brandt Milling Co. Case, 4 Can. Ry. Cas. 259. destined to be forwarded from B to C.20 Although the law thus no longer permits such concessions to get business, because it is seen that these would constitute personal discrimination between two customers asking exactly the same service, yet these considerations are still held to justify making a lower rate from a more distant point as will be seen in the last chapter of this part of the treatise. Where a competitive line exists at this point, it will even justify this even if the long haul includes the short haul within it. This means, of course, that the general law against all discrimination has not as yet become as recognized as the particular law against personal discrimination, but in regard to this relative discrimination the law is where it was as to all personal discrimination some time ago. § 698. Previous or subsequent haul. The mere fact that the carrier will have later from the same patron a subsequent haul out-bound on manufactured articles does not justify the making to the shipper who is doing this a lower rate on the in-bound shipments of his raw materials; and it would seem to follow that the carrier cannot make a lower rate on the out-bound transportation to shippers who have previously given the in-bound traffic. 21 And in a later case where a transit privilege had been established, the Commission condemned as unreasonable increases in local rates to transit points, which were to be refunded upon the shipment out-bound upon the products. 22 In accordance with these principles the Commission has held, where the defendant's tariff provided a local rate on cottonseed into Fort Smith, Ark., with a provision that in case the shipper employed defendant's road in hauling the manufactured product out, he should 20 Alabama & V. R. R. Co. v. Railroad Comm., 86 Miss. 667, 38 So. 356. See also Hope Cotton Oil Co. v. Texas & P. R. R., 10 I. C. C. Rep. 696. 21 In re Substitution of Tonnage at Transit Points, 18 I. C. C. 280. 22 Red River Oil Co. v. T. & P. Ry., 23 I. C. C. 438. |