be compared.84 Charges for terminal or other incidental services of entirely different kinds can not be compared, such as storage charges at warehouses and in stations,85 delivery of goods on spur tracks and by drays,86 and carriage through cities where bus transfer is and is not furnished.87 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 questionable." § 715. Like circumstances and conditions. The courts have frequently had occasion to define the phrase "like circumstances and conditions." Under section 2 of the Act forbidding a discrimination in rates between shippers for a haul under like circumstances and conditions, it has been held that the circumstances and conditions meant are those which arise within the field of haulage, and not those which exist outside. In regard to State statute of like tenor, it has been said that, so far as it forbids unjust discriminations, such language is merely declaratory of the common law; and different rates may be made where the circumstances are different.90 And in another State a statute penalizing discriminations in freight rates was construed to be applicable only to charges made against shippers for an equal quantity of same kind of freight going in same direction.91 In still another jurisdiction language similar to that in the Act was said to be merely declaratory of the common law not 34 Rice v. Cincinnati, W. & B. R. R., 3 Int. Com. Rep. 841, 5 I. C. C. 193; Pennsylvania Millers' State Ass'n v. Philadelphia & R. R. R., 8 I. C. C. Rep. 531. 85 Blackman v. Southern Ry., 10 I. C. C. Rep. 352. Hezel Milling Co. v. St. Louis, A. & T. H. R. R., 3 Int. Com. Rep. 701, 5 I. C. C. 57. 87 Behrend v. Washington S. Ry., 9 I. C. C. Rep. 637. * Independent Refiners' Ass'n v. Western N. Y. & P. R. R., 4 Int. Com. Rep. 162, 5 I. C. C. 415. Penn. R. R. Co. v. International Coal Mining Co., 173 Fed. 1. 90 Western U. T. Co. v. Call Pub. Co., 44 Neb. 326, 62 N. W. 506, 48 Am. St. R. 729. 91 Hines & Battle v. Wilmington & C. Ry., 95 N. C. 434. prohibiting all discrimination but only such as are unreasonably unequal.92 It would seem to be clear, therefore, on authority that 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." The same thing is true if the services compared are performed in different parts of the country; 94 or in different directions.95 93 & 716. What circumstances can be considered. A discrimination against a shipper is not justified because he has refused in the past to pay excessive charges.96 Or because the goods are eventually destined to a point beyond the original destination," or because they came from a certain place. 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.99 Nor will the private in 92 State v. Central Vt. Ry., 81 Vt. 463, 71 Atl. 494. 93 Cator v. Southern P. Co., 4 Int. Com. Rep. 397, 6 I. C. C. 113. 94 Allen v. Oregon Ry. & Nav. Co., 98 Fed. 16; Central Yellow Pine Assoc. v. Illinois Cent. R. R., 10 I. C. C. Rep. 505; Parks v. Cincinnati & M. V. R. R., 10 I. C. C. Rep. 47. 95 McLoon v. Boston & M. R. R., 9 I. C. C. Rep. 642; Hewins v. New York, N. H. & H. R. R., 10 I. C. C. 96 Phelps v. Texas & P. Ry., 4 Int. Com. Rep. 363, 6 I. C. C. 36. 97 Northwestern I. G. & S. S. Ass'n v. Chicago & N. W. Ry., 2 Int. Com. Rep. 431, 2 I. C. C. 604. 98 Hope Cotton Oil Co. v. Texas & P. Ry., 10 I. C. C. Rep. 696. 99 Colorado Fuel & I. Co. V. Southern P. Co., 6 I. C. C. Rep. 488. terest 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. 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. 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. On the other hand, circumstances, such as the accounting system of the United States, which really cause trouble or expense to the carrier may be considered. 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.5 § 717. Differences in the conditions of service. 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 dissimilar." "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, 1 1 Reynolds v. Western N. Y. & P. R. R., 1 Int. Com. Rep. 685, 1 I. C. C. 393. 2 Hurlburt v. Lake Shore & M. S. R. R., 2 Int. Com. Rep. 81, 2 I. C. C. 122. 3 Glade Coal Co. v. Baltimore & O. R. R., 10 I. C. C. Rep. 226; Thompson v. Pennsylvania R. R., 10 I. C. C. Rep. 640. 4 United States v. Chicago & N. W. Ry., 127 Fed. 785, 62 C. C. A. 465. 5 Sidman v. Richmond & D. R. R., 2 Int. Com. Rep. 766, 3 I. C. C. 512. The quotation which follows is from Irvine, C., in Western U. T. Co. v. Call Pub. Co., 44 Neb. 326, 62 N. W. 506. 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. 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." 8 § 718. Proportionate differences may be made. 9 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 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 77 7 Citing Hays v. Pennsylvania Co., 12 Fed. 309; Messenger v. Railroad Co., 36 N. J. Law, 407, 13 Am. Rep. 457; McDuffee v. Railroad Co., 52 N. H. 430, 13 Am. Rep. 72. 8 Citing Interstate Commerce Commission v. Baltimore & O. R. Co., 145 U. S. 263, 36 L. ed. 699, 12 Sup. Ct. 844; Root v. Railroad Co., 114 9 Root v. long distance at a less sum than he could for a short distance. He may be able to carry 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." 10 § 719. Rates should not be disproportionate. It has already been explained at much length 11 that the railway company may classify freights and passengers and charge different rates for the different classes, if there are reasonable grounds for such discrimination in the difference of the cost of service, risk of carriage or in the accommodations furnished, or the like; but the rates must be the same for all persons and goods of the same class or else there will be personal discrimination, plainly enough.12 But it will also constitute personal discrimination if different classification is given to like goods without justification. As a general rule a railway company is justified in carrying goods for one person at a less rate than that at which it carries goods for another, only where there are circumstances which make the cost of carrying the former less than the cost of carrying the latter. And, moreover, to be exact the difference in the rates between the different 10 It is universally admitted that real differences in the cost of serving justify differences in rates; leading cases to this effect are: Interstate .Com. Com. v. B. & O. R. R., 145 U. S. 263, 36 L. ed. 699; Western U. T. Co. v. Call Pub. Co., 181 U. S. 92, 45 L. ed. 765, 21 Sup. Ct. 561; 3181⁄2 Tons of Coal, 14 Blatch. 453, Fed. Cas. 14,010, Hays v. Pennsylvania Co., 12 Fed. 309; Burlington, C. R. & N. Ry. v. N. W. Fuel Co., 31 11 See Cincinnati, H. & D. R. R. v. Interstate Commerce Commission, 206 U. S. 142, 51 L. ed: 995, 27 Sup. Ct. 648. 12 See Interstate Commerce Commission v. Chicago Gt. Western Ry., 209 U. S. 108, 52 L. ed. 705, 28 Sup. Ct. 815. |