of the duty to carry for all does not involve a commonness or equality of compensation or charge; that all the shipper can ask of a common carrier is, that for the service performed he shall charge no more than a reasonable sum to him; that whether the carrier charges another more or less than the price charged a particular individual, may be a matter of evidence in determining whether a charge is too much or too little for the service performed, and that the difference between the charges cannot be the measure of damages in any case, unless it is established by proof that the smaller charge is the true reasonable charge in view of the transportation furnished, and that the higher charge is excessive to that degree." 57 § 615. Outright discrimination next condemned. Even in so extreme a case as the one last cited some qualifications were made; the power to discriminate as much as it pleased between shippers was not left to the railroads. For even then it was vaguely felt that equal service to all dealers upon fair terms was necessary for the maintenance of free industrial conditions. And the courts never went so far that they could not be continually more insistent that they had meant that reasonable rates to all must be equal rates to all unless the conditions were shown to be dissimilar. This is the position still taken in some States where there has been no declaration or policy by statute against discrimination as such; but it will be seen that to a large extent it prevents discriminatory rates as well as unreasonable charges. An elaborate case decided under this view of the law is Cook v. Chicago, Rock Island and Pacific Railway Company.58 In that case it appeared that the plaintiffs, who were shippers of cattle, were charged by the defendant from three to ten dollars per carload of cattle shipped more than the charges made to certain favored shippers who were given a secret 57 See Concord & P. R. R. v. Forsaith, 59 N. H. 122, 47 Am. Rep. 181. 58 81 Ia. 551, 46 N. W. 749, 25 Am. St. Rep. 512, 9 L. R. A. 764. rebate. The court held that the railroad must make reparation for this wrong by refunding these overpayments thus extorted. The course of opinion in the two of the most prominent text writers of the last generation may be seen in the following extract from the opinion of Chief Justice Rothrock: "In volume 2, p. 95, Redfield on Railroads, the following language is used: 'It has been held in this country, where there is no statutory regulation affecting the question, that common carriers are not absolutely bound to charge all customers the same price for the same service. But as the rule is clearly established at common law that a carrier is bound by law to carry everything which is brought to him, for a reasonable sum to be paid to him for the same carriage, and not to extort what he will, it would seem to follow that he is bound to carry for all at the same price, unless there is some special reason for the distinction. For, unless this were so, the duty to carry for all would not be of much value to the public, since it would be easy for the carrier to select his own customers at will by the arbitrary discrimination in his favor. Hence, it was held at an early day that all that could be required on the part of the owner of the goods, by way of compensation, was that he should be ready and willing to pay a reasonable compensation, and to deposit the money in advance, if required. Carrying for reasonable compensation must imply that the same compensation is accepted always for the same service, else it could not be reasonable, either absolutely or relatively.' In Hutchinson on Carriers, 243, after a review of the cases, it is said: 'Hence we may conclude that in this country, independently of statutory provisions, all common carriers will be held to the strictest impartiality in the conduct of their business, and that all privileges or preferences given to one customer, which are not extended to all, are in violation of public duty.' An examination of the authorities cited by these learned authors leaves no doubt that a common carrier has no right to make un reasonable charges for his services, and that he cannot lawfully make unjust discrimination between his customers.' 11 59 § 616. Exclusiveness of the privilege creates discrimination. In a similarly inconclusive case, Christie v. Missouri Pacific Railroad Company, where a petition alleged that a contract was made with the agent of a railroad company regarding the shipment of grain at a reduced price, stating its terms, it was held that nothing appeared to show that the arrangement was against public policy, Chief Justice Norton saying: "A common carrier has the right to contract to ship freight at a lower rate than the published tariff rate, if he choose to do so; and such a contract is not against public policy unless the privilege to ship at such rate is granted exclusively to the shipper with whom it is made, or is denied to other shippers. It is the exclusiveness of the privilege granted to one and denied to another which makes the discrimination, and renders the contract void as against public policy. No such exclusiveness or discrimination appears in the contract sued upon, and the objection of defendant to the reception of any evidence was properly overruled." 61 § 617. Special concessions from established rates. Even in some comparatively recent cases, these general doctrines are stated in much the same language as formerly. Thus in Lough v. Outerbridge,62 in holding that a common carrier might grant special reductions in pursuance of a policy to maintain its business in the face of competition, the court held that those who would not conform to the conditions had no complaint if they were not given the reduced rates. "There can be no doubt that 59 See Cowden v. Pacific S. S. Co., 94 Pac. 470, 29 Pac. 873, 28 Am. St. Rep. 142, 18 L. R. A. 221. 60 94 Mo. 453, 7 S. W. 567. 61 The case of Toledo, W. & W. R. Co. v. 62 143 N. Y. 271, 38 N. E. 292, 42 Am. St. Rep. 712, 25 L. R. A. 674, B. & W. 380. the carrier could at common law make a discount from its reasonable general rates in favor of a particular customer or class of customers in isolated cases, for special reasons, and upon special conditions, without violating any of the duties or obligations to the public inherent in the employment. If the general rates are reasonable, a deviation from the standard by the carrier in favor of particular customers, for special reasons not applicable to the whole public, does not furnish to parties not similarly situated any just ground for complaint. When the conditions and circumstances are identical, the charges to all shippers for the same service must be equal. These principles are well settled, and whatever may be found to the contrary in the cases cited by the learned counsel for the plaintiff originated in the application of statutory regulations in other States and countries. Special favors in the form of reduced rates to particular customers may form an element in the inquiry whether, as matter of fact, the standard rates are reasonable or otherwise. If they are extended to such persons at the expense of the general public, the fact must be taken into account in ascertaining whether a given tariff of general prices is or is not reasonable." 63 § 618. Complainant charged more than regular rates. However, it is now generally agreed that in outrageous cases relief will be given by some one or other of these principles. In one of the most extreme cases in the books, Menacho v. Ward,64 it was set forth by the shippers in their application for relief that the carrier in question had arbitrarily refused them equal terms, facilities and accommodations to those granted and allowed to other shippers, and had arbitrarily exacted from them a much greater rate of freight than he was at the same time chargH. L. 17 App. Cas. 25; Evershed v. Railway Co., 3 Q. B. Div. 135, affirmed, L. R. 3 App. Cas. 1029. 64 27 Fed. 529. 63 Citing Railroad Co. v. Gage, 12 Gray, 393; Sargent v. Railroad Co., 115 Mass. 422; Steamship Co. v. McGregor, 21 Q. B. Div. 544, affirmed, 23 Q. B. Div. 598, and by ing to shippers of merchandise generally. It appeared that these shippers had thus been "blacklisted" because they maintained business relations with a rival carrier. But the court found this no excuse for charging the complainants more than the regular rates, Judge Baxter, although still believing as the majority of people then believed that the law did not require any greater equality than that no shipper should be charged an unreasonable rate, nevertheless finding upon the evidence that the complainants had been treated outrageously. "The fact that the carrier charges some less than others for the same service is merely evidence for the latter, tending to show that he charges them too much; but when it appears that the charges are greater than those ordinarily and uniformly made to others for similar services, the fact is not only competent evidence against the carrier, but cogent evidence, and shifts upon him the burden of justifying the exceptional charge." 65 § 619. All discrimination forbidden by the better view. By the better view, it is submitted, the common law to-day forbids all discrimination between two applicants who ask the same service of a common carrier. This is the modern view reached after some bitter experiences with the results of discriminations by the railroads in disturbing the normal industrial order, in suppressing competition and fostering monopoly. But over thirty years ago this doctrine, that there is a necessary common-law rule against discrimination involved in the law defining the public duty of the common carrier, was stated in a way which has never been improved upon. In the leading case of Messenger v. Pennsylvania Railroad Company 66 Mr. Justice Beasley said in part: "Recognizing this as the settled doc 65 This distinctive rule against unjustifiable discrimination was recognized in Rothschild v. Wabash, St. L. & P. R. R., 92 Mo. 91, 4 S. W. 418. 667 Vroom (36 N. J. L.), 407, 13 Am. Rep. 437, S. C. 8 Vroom (37 N. J. L.) 531, 18 Am. Rep. 754. |