mission of Kentucky v. Louisville & N. R. R., 10 I. C. C. Rep. 173 (1904). So the exercise by a railway company of the right to prepayment, or to retain a lien upon the goods until payment is made, or to hold the consignee responsible in case of delivery before payment, or the waiver of some of such rights at different times, cannot be construed to be a discrimination. Little Rock & M. R. Co. v. St. Louis & S. W. Ry., 63 Fed. 775, 11 C. C. A. 417, B. & W. 277 (1894). 947. Effect of illegality on contract of carriage. The effect of a violation of the act is to make the contract of carriage, including the rate named therein, invalid. The carrier therefore cannot be sued for breach of an executory term of the contract. Interstate Commerce Commission v. Chesapeake & O. Ry., 128 Fed. 59 (1904); Red Cloud Mining Co. v. Southern Pac. Co., 9 I. C. C. Rep. 216 (1902). And the contract rate being invalid the carrier may collect the schedule rate. Texas & P. Ry. v. Mudd, 26 Sup. Ct. 628 (1906), reversing 98 Tex. 352, 83 S. W. 800; Duncan v. Atchison, T. & S. F. R. R., 4 Int. Com. Rep. 385 (1893); St. Louis & S. F. R. R. v. Ostrander (Ark.), 52 S. W. 435 (1899); Kizer v. Texarkana & F. S. Ry. (Ark.), 50 S. W. 871 (1899); Raleigh & G. R. R. v. Swanson (Ga.), 28 S. E. 601 (1897); Bullard v. Northern Pac. R.. R. (Mont.), 25 Pac. 120, 3 Int. Com. Rep. 536 (1890). The burden is on the party desiring to avoid the contract to show that it violates the act. Southern Pac. Co. v. Redding (Tex. Civ. App.), 43 S. W. 1061 (1897). This principle however applies only to a claim which must be based on the illegal contract. The granting of a rebate contrary to the provision of the interstate commerce law does not render the bill of lading void, so that no action can be maintained against the carrier for loss of the goods by negligence. Merchants' C. P. & S. Co. v. Insurance Co. of North America, 151 U. S. 368, 38 L. Ed. 195, 14 Sup. Ct. 367 (1894). TOPIC B-LIKE AND CONTEMPORANEOUS SERVICE. [See Chapters XXI and XXII for discussion of principles.] 948. Difference in time or place. In order to be obnoxious to the act on the ground of discrimination, the services of the carrier with respect to which discrimination is alleged must be performed at practically the same time and place. If the two services are performed at substantially different times they cannot be compared. Thus a carrier is not compelled to give special excursion rates to one political convention because it has given them to a similar convention of another political party on another date. Cator v. Southern P. Co., 4 Int. Com. Rep. 397, 6 I. C. C. 113 (1893). The same thing is true if the services compared are performed in different parts of the country. Allen v. Oregon Ry. & Nav. Co., 98 Fed. 16 (1899); Central Yellow Pine Assoc. v. Illinois Cent. R. R., 10 I. C. C. Rep. 505 (1905); Parks v. Cincinnati & M. V. R. R., 10 I. C. C. Rep. 47 (1904); or in different directions. McLoon v. Boston & M. R. R., 9 I. C. C. Rep. 642 (1903); Hewins v. New York, N. H. & H. R. R., 10 I. C. C. Rep. 221 (1904). § 949. Difference in nature of service. There is no illegal discrimination unless the services compared are substantially the same. Thus a reasonable classification of commodities or passengers according to the nature of the goods or the accommodations furnished does not result in discrimination. Lavery v. New York C. & H. R. R. R., 2 Int. Com. Rep. 210, 2 I. C. C. 338 (1888); New York Board of Trade and Transp. v. Pennsylvania R. R., 3 Int. Com. Rep. 417, 4 I. C. C. 447 (1890); Brownell v. Columbus & C. M. R. R., 4 Int. Com. Rep. 285, 5 I. C. C. 638 (1893). Nor can the carriage of products of entirely different kinds be compared. Rice v. Cincinnati, W. & B. R. R., 3 Int. Com. Rep. 841, 5 I. C. C. 193 (1891); Pennsylvania Millers' State Assoc. v. Philadelphia & R. R. R., 8 I. C. C. Rep. 531 (1900). Nor can charges for terminal or other incidental services of entirely different kinds be compared; such as storage charges at warehouses and in stations. Blackman v. Southern Ry., 10 I. C. C. Rep. 352 (1904); delivery of goods on spur tracks and by drays, Hezel Milling Co. v. St. Louis, A. & T. H. R. R., 3 Int. Com. Rep. 701, 5 I. C. C. 57 (1891); carriage through cities where bus transfer is and is not furnished. Behrend v. Washington S. Ry., 9 I. C. C. Rep. 637 (1903). But a difference in charge for carrying oil in tank cars and in barrels, where carriage in tank cars is not open to shippers impartially, is an illegal discrimination, since the service to the shipper is the same. Independent Refiners' Assoc. v. Western N. Y. & P. R. R., 4 Int. Com. Rep. 162, 5 I. C. C. 415 (1892). TOPIC CSUBSTANTIALLY SIMILAR CONDITIONS. CIRCUMSTANCES AND [See discussion of the principles requiring equal service in Chapters VII, VIII, XXII, XXIII.] § 950. What circumstances can be considered. A discrimination against a shipper is not justified because he has refused in the past to pay excessive charges: Phelps v. Texas & P. Ry., 4 Int. Com. Rep. 363, 6 I. C. C. 36 (1894), or because the goods are eventually destined to a point beyond the original destination. Northwestern I. G. & S. S. Assoc. v. Chicago & N. W. Ry., 2 Int. Com. Rep. 431, 2 I. C. C. 604 (1889); Hope Cotton Oil Co. v. Texas & P. Ry., 10 I. C. C. Rep. 696 (1905). Or because they came from a certain place. Bigbee & W. R. P. Co. v. Mobile & O. Ry., 60 Fed. 545 (1893). So the magnitude of a shipper's enterprise, the number of persons for whom it produces employment and support, the developing results of its business upon the natural resources of the State, the impracticability of moving its plant to other localities, and the fact that it produces material largely used on railroads for construction or repair, do not entitle it to different consideration in respect to rates than individuals and small concerns should receive. Colorado Fuel & I. Co. v. Southern P. Co., 6 I. C. C. Rep. 488 (1895). Nor will the private interest of the carrier justify discrimination. Thus the high relative classification of railroad ties, under the desire to keep them upon its own line and keep the price low for its own use, is unreasonable discrimination. Reynolds v. Western N. Y. & P. R. R., 1 Int. Com. Rep. 685, 1 I. C. C. 393 (1887). So an assurance by a carrier, that if one will locate in business on its line his property shall be taken for transportation as belonging to a specified class, cannot bind the carrier so as to compel a classification accordingly. A right to special rates cannot be made out in this way. Hurlburt v. Lake Shore & M. S. R. R., 2 Int. Com. Rep. 81, 2 I. C. C. 122 (1888). A higher charge when coal is loaded from wagon instead of from tipple, when the difference is not justified by any difference in cost to the carrier, is unlawful. Glade Coal Co. v. Baltimore & O. R. R., 10 I. C. C. Rep. 226 (1904); Thompson v. Pennsylvania R. R., 10 I. C. C. Rep. 640 (1905). On the other hand, circumstances which really cause trouble or expense to the carrier may be considered. Thus where party-rate tickets are ordinarily closely limited in time, and are paid for in cash in advance, while those furnished to the government are not so limited, are furnished on a requisition, and are only paid for after indefinite delay in the auditing and allowance of the claims by the War and Treasury Departments, the conditions and circumstances under which the service is rendered are essentially different, and justify the making of different rates. United States v. Chicago & N. W. Ry., 127 Fed. 785, 62 C. C. A. 465 (1904). Other differences will render the services unlike. So where a passenger fails to buy a ticket, compelling him to pay excess fare is not an unlawful discrimination against him. Sidman v. Richmond & D. R. R., 2 Int. Com. Rep. 766, 3 I. C. C. 512 (1890). 951. Occupation of passenger or shipper. A difference in rate cannot be justified by a difference in occupation of the passenger or shipper. Thus a lower rate of fare will not be justified to land explorers and settlers. Smith v. Northern Pac. R. R., 1 Int. Com. Rep. 611, 1 I. C. C. 208 (1887); or to emigrants, Elvey v. Illinois Cent. R. R., 2 Int. Com. Rep. 804, 3 I. C. C. 652 (1890); or to commercial travellers, Larrison v. Chicago & G. T. Ry., 1 Int. Com. Rep. 369 (1887); As sociated Wholesale Grocers v. Missouri Pac. Ry., 1 Int. Com. Rep. 393, 1 I. C. C. Rep. 156 (1887); though the carrier's future business would be thereby stimulated. Nor can a lower rate for the carriage of goods be offered to manufacturers. Re Louisville & N. R. R., 4 Int. Com. Rep. 157, 5 I. C. C. 466 (1892); or to emigrants: Duncan v. Atchison, T. & S. F. R. R., 4 Int. Com. Rep. 385, 6 I. C. C. 85 (1894). Nor will a discrimination against a shipper of coal be justified because he was a druggist, and not in the coal business. Thompson v. Pennsylvania R. R., 10 I. C. C. Rep. 640 (1905). 952. Difference in amount of shipment. SO No dissimilarity of conditions which can justify a difference in rate is created by the total amount of shipments during a certain time, as much in a year. Providence Coal Co. v. Providence & W. R. R., 1 Int. Com. Rep. 363, 1 I. C. C. 107 (1887); United States v. Tozer, 39 Fed. 369, 2 Int. Com. Rep. 597 (1889); Kinsley v. Buffalo, N. Y. & P. Ry., 3 Int. Com. Rep. 318 (1890). A shipment of a large amount at one time may, however, justify a lower rate if it results in economy of operation, as for instance a carload shipment, provided the difference is reasonable in view of the saving effected. Thurber v. New York C. & H. R. R. R., 2 Int. Com. Rep. 742, 3 I. C. C. 473 (1890); Buckeye Buggy Co. v. Cleveland, C., C. & S. L. R. R., 9 I. C. C. Rep. 620 (1903). So a rule making a minimum charge of one hundred pounds on shipments of less weight is justifiable. Wrigley v. Cleveland, C., C. & St. L. R. R., 10 I. C. C. Rep. 412 (1905). If the amount of the shipment will not lead to a saving in expense to the carrier, no difference can be made on account of it. So where the shipment is in cargo or trainload quantities it cannot get less than carload rates. Paine v. Lehigh Valley R. R., 7 I. C. C. Rep. 218 (1897). § 953. Discrimination in use of cars. If there is a shortage of cars due to unusual press of business, the carrier must supply his cars rateably as far as they go; and if he makes a reasonable distribution no one can complain of discrimination. United States v. West Virginia N. R. R., 125 Fed. 252 (1903); S. S. Daish & Sons v. Cleveland, A. & C. Ry., 9 I. C. C. Rep. 513 (1903); Riddle v. Baltimore & O. R. R., 1 Int. Com. Rep. 778, 1 I. C. C. 372 (1888). Regular customers are not entitled to preference over occasional ones under such circumstances. Riddle v. New York, L. E. & W. Ry., 1 Int. Com. Rep. 787, 1 I. C. C. 594 (1887). At such times a carrier may refuse to allow cars to be sent off its line to distant points. Riddle v. Pittsburgh & L. E. R. R., 1 Int. Com. Rep. 688, 1 I. C. C. 374 (1887). And a temporary rule of the carrier limiting its coal cars to mines having track connection with its road, thereby confining its comparatively few available cars to mines generally in operation, where quick loading could be accomplished, and declining to permit its sidings or switches to be further congested by loading coal from wagons, was calculated to hasten, rather than retard, the movement of coal for public use, and was not unreasonable or unjust. Thompson v. Pennsylvania R. R., 10 I. C. C. Rep. 640 (1905). Carriers may, if they choose, hire cars from other persons, even from shippers. Scofield v. Lake Shore & M. S. R. R., 2 Int. Com. Rep. 67, 2 I. C. C. 90 (1888). But in that case the rate charged for carriage to other shippers must be the same, excepting the reasonable rent of the car. Ibid. If the carrier fails to furnish proper cars for transportation, as for instance tank cars for transporting oil, it will be unlawful discrimnation to charge shippers who cannot get tank cars more than it charges shippers who own and furnish tank cars. Rice v. Louisville & N. R. R., 1 Int. Com. Rep. 722 (1888); Rice v. Western N. Y. & P. R. R., 3 Int. Com. Rep. 162, 4 I. C. C. 131 (1890); Independent Refiners' Assoc. v. Pennsylvania R. R., 6 I. C. C. Rep. 52 (1894); Independent Refiners' Assoc. v. Western N. Y. & P. R. R., 6 I. C. C. Rep. 378 (1895). Where certain cars are so arranged that they can be used on the return trip for coal, while other cars cannot be so used, a lower rate is justifiable upon goods carried in cars of the former sort, provided they are at the service of shippers. United States v. Delaware, L. & W. R. R., 40 Fed. 101 (1889). So the expense of hauling the Burton cars in one direction unloaded, since by their construction they are not suited to carry general freight, and the fact that a large percentage of ordinary cattle cars are back loaded upon long hauls of western roads, are considerations which justify difference in charge against shippers who prefer to hire improved stock cars. Burton Stock Car Co. v. Chicago, Burlington & Quincy R. R., 1 Int. Com. Rep. 329, 1 I. C. C. 132 (1887). § 954. Discrimination between commodities. In determining whether there is a discrimination between different but similar articles, all the factors which go to affect a reasonable rate are to be considered, such as character and quality of the commodity, cost of production, extent and nature of the competition in the business itself and by other transportation lines, and the interests of the public in the use of the commodity, and its market cost. Imperial Coal Co. v. Pittsburgh & L. E. R. R., 2 Int. Com. Rep. 436, 2 I. C. C. 618 (1889); F. Schumacher Milling Co. v. Chicago, R. I. & P. R. R., 4 Int. Com. Rep. 373, 6 I. C. C. Rep. 61 (1894). The commodities must be similar in order to claim equality of treatment. Live stock and their products are entitled to such treatment. Chicago L. S. Exch. v. Chicago G. W. Ry., 10 I. C. C. Rep. 428 (1905). But not fresh meat and fresh fruit. Miner v. New York, N. H. & H. R. R., 11 I. C. C. Rep. 422 (1905). |