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forwarding of freights and quickly completing delivery of transported goods to the consignees. Among the rules or regulations commonly in force upon railways and intended to effectuate the prompt shipment, carriage and delivery of freights, are the following: (a) The loading of cars furnished for shipments within 24 hours or other short specified time, under penalty of a demurrage charge for detaining the cars, which is in most cases $1.00 for each additional day or fraction thereof; and a similar regulation is applied to the unloading of cars by consignees on team tracks or private sidings. (b) The removal of goods from freight houses within a specified time, usually 24 or 48 hours, after notice of arrival to consignee, under penalty of storage at the freight house or at public warehouse and collection of additional charges therefor.

In various ways these generally described regulations are specifically stated in published freight classifications, car service rules, rate schedules, special circulars, so-called billing instructions, or bills of lading forms. They amount to conditions imposed by the carriers upon the shipment, transportation, and delivery of freight, which are not to be disregarded by shippers or consignees without incurring liability to additional expense.14

703. Storage charges.

After transportation is at an end and the goods ready for delivery to the consignee the obligation of the common carrier ceases to a certain extent, and if the goods are left upon its hands for a time by the owners it would seem plain that having performed the services for which freight was paid it, it can make additional charges for storage of the goods with it. More than this, since to provide such storage is no part of the carrier's duty as such, it is not confined as it is in services during carriage to charge no more than the usual price for warehousing. This

14 See Miller v. Georgia Ry. & B. Co., 88 Ga. 563, 15 S. E. 316 (1891).

was pointed out to a complainant by the Interstate Commerce Commission in the quotation which follows:15

"We cannot agree with the contention of the complainant in this case that the defendants had no right to charge for the storage of the freight in question more than the usual public warehouse charge in force at Macon, Georgia and Columbia, South Carolina. A railroad freight depot and a public storage warehouse are buildings whose business and uses are wholly dissimilar. The former is planned and built to accommodate the current business of the railroad when expeditiously handled, and affords no facilities for storage during long periods of time. The storage warehouse is especially designed for storage purposes. The railway company imposes storage charges, not for gain especially, but in order that it may be enabled to clear its depots to the end that current business may not be blockaded."

704. Demurrage of cars.

Again, since the use of the cars at the end of the route is no part of the carrier's public undertaking, a charge for demurrage of cars is a charge distinct from the charge for carriage, and it may therefore be made as a separate charge.16 Indeed, so entirely distinct is it from the charge for carriage that by the weight of authority no lien exists to enforce it,17 unless of course there is an express contract permitting such a lien.

The extent of the limitations under which railroads by public announcements may make charges for demurrage of cars is well

15 Blackman v. Southern Ry., 10 I. C. C. Rep. 350 (1904).

16 Brown v. Grand Trunk Ry., 54 N. H. 535 (1874).

17 Chicago & N. W. Ry. v. Jenkins, 103 Ill. 588 (1882); Cleveland, C., C. & S. L. Ry. v. Holden, 73 Ill. App. 582 (1898); Burlington & M. R. R. R. v. Chicago Lumber Co., 15 Neb. 390, 19 N. W. 451, B. & W. 290 (1884); Crommelin v. New York & H. R. R., 10 Bosw. (N. Y.) 77 (1868); East Tennessee V. & G. R. R. v. Hunt, 15 Lea (Tenn.), 261 (1885). Contra, Kansas Pac. Ry. v. McCann, 2 Wyo. 3 (1877).

discussed by the Court of Appeals of Kentucky 18 in the extract which follows: "Whether a charge of one dollar per day or fraction thereof, made for detention of cars and use of track on cars not unloaded within 48 hours after arrival, not including Sundays and legal holidays, and on empty cars not loaded within 48 hours after being placed, is a reasonable charge, and the time fixed for the loading and unloading, as required in the rule, is a reasonable time, are questions of fact, and on these issues the preponderance of the proof is clearly with the carriers. The rule must allow time enough to meet all cases likely to arise, and that such is the case here is abundantly shown by the testimony. That the rate of one dollar per day is also reasonable is conclusively shown. It may be somewhat more than the usual per cent. on the first cost of a car, but this is not the proper criterion. A railroad company does not construct cars for the purpose of storing property in them, and their use for transportation involves the use of costly railway tracks, and other expenditures. It may be true, as contended, that the shipper was not consulted in framing these rules. We think, however, if the rules are reasonable, this fact does not vitiate them. No complaint is made that there was an attempt to enforce them before ample notice had been given of their adoption. So, too, if the rules are reasonable, the fact there is not reciprocity of indemnity or counter penalties provided, cannot avail the appellant. If there is any principle of law well understood by shippers, it is that, for any dereliction of duty, the common carrier may be held accountable."

18 Kentucky Wagon Manufacturing Co. v. Ohio & M. Ry., 32 S. W. 595, 17 Ky. Law Rep. 726 (1895).

PART II.

PREVENTION OF DISCRIMINATION.

CHAPTER XXI.

GENERAL PRINCIPLES GOVERNING DISCRIMINATION.

TOPIC A-DIFFERING THEORIES AS TO DISCRIMINATION.

§ 711. Development of the rule against discrimination.

712. Early view that there was no law against discrimination as such.

713. Later rule against unreasonable differences.

714. Outright discrimination now universally condemned.

715. All discrimination forbidden by the better view.

TOPIC B-VIEW THAT NO RULE AGAINST DISCRIMINATION

AS SUCII.

§ 716. Extension of the rule against unreasonable rates.

717. No rule against discrimination as such.

718. Discrimination as evidence of unreasonable rates.

719. Special concessions may be made from established rates.

720. Outright discrimination unreasonable.

721. Undue preferences forbidden.

722. Special rates may not be discriminatory.

723. Exclusiveness of the privilege creates discrimination.

TOPIC C-VIEW THAT DISCRIMINATION ILLEGAL IN ITSELF.

724. Necessity for the rule against discrimination.

725. Evils of discriminations between competitors.

726. Discriminations foster monopolies.

727. Rule forbidding discrimination goes beyond rule beginning rea

sonable rates.

728. Public injury by discriminations in freight rates. 729. Public wrong in giving free passes to passengers. 730. Giving free passes prima facie discrimination.

TOPIC D-WHAT CONSTITUTES DISCRIMINATION.

§ 731. Not all differences are discriminatory.

732. Whether the rule is limited to discrimination between competitors. 733. Whether reductions can be made for benevolent purposes.

734. Whether concessions may be made for special purposes.

735. Whether differences in the conditions of service may be recognized. 736. Differences may be made proportionate to the cost of service.

TOPIC A- -DIFFERING THEORIES AS TO DISCRIMINATION.

§ 711. Development of the rule against discrimination.

The fundamental limitation upon the charges of a common carrier, that they shall be in no respect unreasonable, has just been discussed with much detail. But a further requirement of the public service law governing the rates of the common carrier remains to be considered, and that is the more modern requisite that rates shall be in no respect unjustly discriminatory. It must be plain to all who have followed the course of events with the least attention that there has been distinct evolution in the law governing public employment during the last twenty-five years. The rule against discrimination is the most recent development in the definition of public duty. A comparatively few years ago it was held that if a public service company served at reasonable rates it performed its obligation; but modern industrial conditions require the further law that it shall serve with equality. The double aspect in which the duty of the common carrier is making its rates is viewed by the more advanced courts is well stated by one judge thus: "The statement that one is a common carrier, ex vi termini, imports a duty to the public, and a corresponding legal right in the public, a right common to all. One of the duties imposed upon the common carrier is, that he is bound to carry for a reasonable remuneration, and is not allowed to make unreasonable and excessive charges. He cannot, like a merchant or mechanic, consult his pleasure or caprice in the conduct of his business, and cannot even by special agreement receive an

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