forced by him from others, including the party complaining of it." § 734. Whether concessions may be made for special purposes. The suggestion is made in several cases that special reductions may be made to further certain policies, provided that there is no discrimination between competitors. It is even urged that such concessions may turn out for the best interests of all concerned in the end. The weight of this line of argument may be judged by the perusal of an extract from the opinion of Judge Baxter in Hays v. Pennsylvania Company, which is often quoted with approval, although it is dangerous to concede quite so much: "We need not recount all these obligations. It is enough for present purposes to say that the defendant has no right to make unreasonable and unjust discriminations. But what are such discriminations? No rule can be formulated with sufficient flexibility to apply to every case that may arise. It may, however, be said that it is only when the discrimination enures to the undue advantage of one man, in consequence of some injustice inflicted on another, that the law intervenes for the protection of the latter. Harmless discrimination may be indulged in. For instance, the carrying of one person, who is unable to pay fare, free, is no injustice to other passengers who may be required to pay the reasonable and regular rates fixed by the company. Nor would the carrying of supplies at nominal rates to communities scourged by disease, or rendered destitute by floods or other casualty, entitle other communities to have their supplies carried at the same rate. It is the custom, we be 7 This same point has been made in various cases, for example in: Hays v. Pennsylvania Co., 12 Fed. 309, B. & W. 368 (1882); Cook v. Chicago, R. I. & P. Ry. Co., 81 Iowa, 551, 46 N. W. 749, 25 Am. St. Rep. 512, 9 L. R. A. 764 (1890); Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292, 42 Am. St. Rep. 712, 25 L. R. A. 674, B. & W. 380 (1894). 8 12 Fed. 309, B. & W. 368 (1882). lieve, for railroad companies to carry fertilizers and machinery for mining and manufacturing purposes to be employed along the lines of their respective roads to develop the country and stimulate productions, as a means of insuring a permanent increase of their business, at lower rates than are charged on other classes of freight, because such discrimination, while it tends to advance the interest of all, works no injustice to any one." " 9 § 735. Whether differences in the conditions of service may be recognized. Although there will be found to be some difference of opinion as to the matters discussed in the sections immediately preceding, where the services performed are substantially identical, there is no difference of opinion as to the propriety of differences in rates where the services performed are essentially disssimilar, 10 "We believe the true rule to be that rates must not only be reasonable in themselves, but must be relatively reasonable; that is, that a person or corporation engaged in public business, and obligated to render its services to all persons having occasion to avail themselves thereof, is bound in fixing its rates to observe two rules: First, its rates must be reasonable; and, second, it must not, without a just and reasonable ground for discrimination, render to one patron services at a less rate than it renders to another, where such discrimination operates to the disadvantage of that other." 11 9 Whether concessions may be made for special purposes is discussed in Chapter XXII, infra. See, permitting such reductions, Hoover v. Pennsylvania R. R., 156 Pa. St. 220, 27 Atl. 282, 36 Am. St. Rep. 43, 22 L. R. A. 263, B. & W. 410 (1893). But see forbidding such reductions Louisville, E. & St. L. Con. R. Co. v. Wilson, 132 Ind. 517, 32 N. E. 311, 18 L. R. A. 105 and note (1892). 10 The quotation which follows is from Irvine, C., in Western U. T. Co. v. Call Pub. Co., 44 Neb. 326, 62 N. W. 506 (1895). 11 Citing Hays v. Pennsylvania Co., 12 Fed. 309, B. & W. 368 (1882); Scofield v. Railway Co., 43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846 "But it is not unjust discrimination-it is not contrary to the common law, and it is not contrary to our statute—to make a difference in rates where the expense or difficulty of performing the services renders such discrimination fair and reasonable." 12 § 736. Differences may be made proportionate to the cost of service. It follows from what has been said that differences may be made proportionate to the cost of service without the making of any illegal discrimination; indeed, in such cases it would be unreasonable not to make such differences upon that basis. In the leading case upon this point, 13 the general principle is thus stated: "In determining the duty of a common carrier, we must be reasonable and just. The carrier should be permitted to charge reasonable compensation for the goods transported. He should not, however, be permitted to unreasonably or unjustly discriminate against other individuals, to the injury of their business, where the conditions are equal. So far as is reasonable, all should be treated alike; but we are aware that absolute equality cannot in all cases be required, for circumstances and conditions may make it impossible or unjust to the carrier. The carrier may be able to carry freight over a long distance at a less sum than he could for a short distance. He may be able to carry (1885); Chicago & A. R. Co. v. People, 67 Ill. 11, 16 Am. Rep. 599 (1873); Railroad Co. v. Ervin, 118 Ill. 250, 8 N. E. 862 (1886); Messenger v. Railroad Co., 36 N. J. Law, 407, 13 Am. Rep. 457 (1874); Atwater v. Railroad Co., 48 N. J. Law, 55, 2 Atl. 803 (1886); McDuffee v. Railroad Co., 52 N. H. 430, 13 Am. Rep. 72, B. & W. 149 (1873); Railroad Co. v. Rust, 58 Tex. 98; Ragan v. Aiken, 9 Lea (77 Tenn.), 609 (1882). 12 Citing Interstate Commerce Commission v. Baltimore & O. R. Co., 43 Fed. 37, affirmed s. c. 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844 (1892); Bayles v. Railway Co., 13 Colo. 181, 22 Pac. 341, 5 L. R. A. 480 (1889); Root v. Railroad Co., 114 N. Y. 300, 21 N. E. 403, 4 L. R. A. 33, B. & W. 377 (1889); Savitz v. Railway Co., 49 Ill. App. 315, affirmed s. c. 150 Ill. 208, 37 N. E. 235, 27 L. R. A. 626 (1894). 13 Root v. Long I. R. R., 114 N. Y. 300, 21 N. E. 403, 4 L. R. A. 33, B. & W. 377 (1889). a large quantity at a less rate than he could a smaller quantity. The facilities for loading and unloading may be different in different places, and the expenses may be greater in some places than in others. Numerous circumstances may intervene which bear upon the cost and expenses of transportation, and it is but just to the carrier that he be permitted to take these circumstances into consideration in determining the rate or amount of his compensation. His charges must therefore be reasonable, and he must not unjustly discriminate against others, and in determining what would amount to unjust discrimination all the facts and circumstances must be taken into consideration. This raises a question of fact, which must ordinarily be determined by the trial court." 14 14 It is universally admitted that real differences in the cost of serving justify differences in rates. This matter is discussed elaborately in Chapter XXIII infra. Leading cases to this effect are: United States-Interstate Com. Com. v. B. & Q. R. R., 145 U. S. 263, 36 L. Ed. 699 (1892); Western U. T. Co. v. Call Pub. Co., 181 U. S. 92, 45 L. Ed. 765, 21 Sup. Ct. 561 (1901), overruling s. c. 44 Neb. 326, 62 N. W. 506 (1895); 3181⁄2 Tons of Coal, 14 Blatch. 453, Fed. Cas. 14,010, B. & W. 364 (1878); Hays v. Pennsylvania Co., 12 Fed. 309, B. & W. 368 (1882); Burlington, C. R. & N. Ry. v. N. W. Fuel Co., 31 Fed. 652 (1897). Alabama-Lotspeich v. Central Ry. & B. Co., 73 Ala. 306 (1882). Ohio State v. Cincinnati, N. O. & T. B. Ry., 47 Ohio St. 130, 23 N. E. 928, B. & W. 400 (1890). TITLE I. DISCRIMINATION BETWEEN PERSONS. CHAPTER XXII. ILLEGAL DISCRIMINATION. § 741. The same rate for substantially similar services. TOPIC A-CONCESSIONS TO GET COMPETITIVE BUSINESS. § 742. Whether concessions may be made in competition. 743. Competitive conditions do not justify making discriminations. 744. Reductions to get competitive business illegal. 745. Concessions allowed by some cases to get shipments from outlying territory. 746. Such concessions forbidden by later cases. 747. Shippers making expensive preparations cannot be favored. 748. Additional services performed for certain shippers. TOPIC B-CONCESSIONS TO LARGE SHIPPERS. § 749. Whether concessions may be made to large shippers. 753. Reductions to large shippers unjust to small shippers. 754. Services to large shippers and to small shippers practically identical. 755. Reductions to passengers in parties. TOPIC C-REBATES TO EXCLUSIVE SHIPPERS. § 756. Whether lower rates may be made to exclusive shippers. 757. Shippers who use rival lines must not be charged more than usual rates. 758. Whether lower rates may be given those who ship exclusively. 759. Shippers who agree to give all their business. 760. Shippers who agree to furnish large quantities of freight. 761. Charging other shippers more than contract rates. |