100 miles over defendant's road as would produce an annual gross revenue of £40,000 to the railroad company, in fully loaded trains, at the rate of seven trains per week. But this case is much limited in later cases. Thus an agreement with certain quarry owners to carry slate for a fixed number of years at a less rate than charged for the same service to complainant quarry owners, who refused to bind themselves by such an agreement, held an undue preference.32 And a difference in rates on an agreement for a period of thirty years and another agreement for fourteen years for a similar service is an undue preference.3 § 727. Units in passenger service. It has already been indicated that the unit principle is applicable to passenger service. Thus a lower rate for a limited ticket than for an unlimited ticket may be justified, since there will be more bother if the transportation is broken into several separate services by stop-overs instead of being taken as a whole.34 A lower rate may be made to those who buy their tickets in lots instead of for the single trip, such as strip tickets and mileage tickets. And it has been held that a railroad may make a lower rate than twenty fares to twenty people traveling together under one transportation contract. But another case probably states a general principle in its pertinent dictum that a railroad is not obliged to sell commutation tickets if it chooses not to; but if it does, any traveler may demand it. Here again the necessity for establishing separate units is not sufficiently plain to imperatively demand recognition; if not, indeed, distinctly considerable, a com 32 Diphwys Casson Slate Co. v. Festiniog R., 2 Nev. & Mac. 73. 33 Holland v. Festiniog R. Co., 2 Nev. & Mac. 278. 34 Edson v. So. Pacific Ry. Co., 144 Cal. 182, 77 Pac. 894. See also Interstate Commerce Commission v. Baltimore & O. R. R. Co., 145 U. S. 263, 36 L. ed. 699, 12 Sup. Ct. 844. If it were not for the provisions of section 22, it is debatable whether the concession from the regular fare would be lawful. In re Mileage Books, 28 I. C. C. 318. pany is not irrational which ignores it. Moreover, it seems to be well established that if the regulating authority attempts to order the issuance of mileages, for example, its interference will be held to be outrageously vexatious.35 § 728. The basis of the differential. In a recent case in the United States Supreme Court 36 not only the question of the relation of the carload rates to less than carload rates, but also the relation of less than carload rates to each other was thus elaborately dealt with. "The question presented is not one involving only the proper relation of soap in less than carload lots, to soap in carload lots, but also its proper relation to other articles in less than carload lots. Freight is carried either in carload lots, or in less than carload lots. This division of freight necessarily attends transportation by rail. Classification, within the meaning of the Act to Regulate Commerce, relates to these divisions separately. The classification of soap in less than carload lots, is not controlled by the classification of soap in carload lots, nor is the reclassification of soap in less than carload lots controlled by the relation it bears to other articles in less than carload lots, that relation is to be determined by the degree in which, in comparison with such other articles, its handling and carrying is, or may be, affected by the cost of the service, competitive and commercial conditions, volume, density, distance, value, and risk of loss or damage. It is true that these elements must also be considered in determining the classification of articles in carload lots, but from a different standpoint. A given article of traffic 35 State ex rel. v. Delaware, L. & W. Ry. Co., 48 N. J. L. 55, 2 Atl. 803. See also Lake Shore & M. S. Ry. Co. v. Smith, 173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct. 565. Special fares for movement of passengers in guaranteed numbers in one day, without baggage-checking privileges, may be provided by carriers under section 22, but in absence of discrimination Commission no power to prescribe. Carnegie Board of Trade v. P. Co., 28 I. C. C. 123. 36 Cincinnati, H. & D. R. R. v. Interstate Com. Comm., 206 U. S. 142, 51 L. ed. 995, 27 Sup. Ct. 648. may be more or less desirable when shipped in less than carload lots, than when shipped in carload lots. Bulk, weight, form, manner of packing, etc., may materially affect the classification of different articles to be carried in the same car, when they might have little or no weight in the classification of a single article to be carried in carload lots." 37 § 729. Comparison of bulk and package rates. So different are the conditions under which freight is carried in packages and in bulk that it is not proper to institute comparisons as to particular factors connected with each. As the United States Supreme Court 38 said in a recent case: "Because circumstances existed which prevented the economical use of the tank car by plaintiffs (no demand being made for the use of a tank car) is no ground for finding discrimination in the charge for the weight of the barrel package (such charge being in itself not an unreasonable one), while none is made for the tank containing the oil." If, however, the railroad fails to provide tank cars for the use of its shippers it would be unfair discrimination to charge shippers of oil in packages for the additional weight. As the Supreme Court of Ohio 39 said in the leading case on this point: "It must either provide tank cars for all of its customers alike, or give such rates of freight in barrel packages by the carload, as will place its customers using that method on an equal footing with its customers adopting the other method." Topic C. Facilities Furnished by Shippers § 730. Terminal facilities furnished by shippers. It is a principal rule in this matter that it is permissible "Until recently the Interstate Commerce Commission had no power to fix a rate by insisting upon a certain classification. Interstate Com. Comm. v. Lake Shore & M. S. Ry., 134 Fed. 942; sustained in 202 U. S. 613, 50 L. ed. 1171, 26 Sup. Ct. 776. 38 Pennsylvania Refining Co. v. Western N. Y. & P. R. R., 208 U. S. 208, 52 L. ed. 456, 28 Sup. Ct. 268. 39 State v. Cincinnati, N. O. & T. P. R. R. Co., 47 Oh. St. 130, 23 N. E. 928. 40 for a railroad to make a lower rate to a shipper who furnishes a part of the facilities which the carrier must otherwise provide in order to serve him. One of the leading cases in establishing this rule is undoubtedly Root v. Long Island Railroad; " the essential facts appear in this extract from the opinion. "The facilities which Quintard was to provide for the loading of the coal, his services in loading the cars, the large quantities which he was to ship, in connection with the large sums of money that he had expended in the erection of the dock, in part for the use and accommodation of the defendant, are facts which tend to explain the provisions of the contract complained of, and render it a question of fact for the determination of the trial court as to whether or not the rebate, under the circumstances of this case, amounted to an unjust discrimination, to the injury and prejudice of others. Therefore, in this case, the question is one of fact, and not of law; and, inasmuch as the discrimination has not been found to be unjust or unreasonable, the judgment cannot be disturbed." 41 § 731. Undue prejudice in granting allowances. 42 Under the Act as amended the Commission has been given charge of this situation. In one proceeding 2 it has held the provisions in the tariffs requiring a return to defendant of the car within forty-eight hours as a condition precedent to the payment of an allowance to be unreasonable and unduly discriminatory.43 Recently the Commission has said that allowances by a carrier to a salt com 40 114 N. Y. 330, 21 N. E. 403, 11 Am. St. Rep. 643, 4 L. R. A. 33. 41 It is generally agreed that a reduction may be made to such shippers as furnish a part of the facilities necessary to serve them. See Savitz v. Ohio & M. Ry., 150 Ill. 208, 27 N. E. 235, 27 L. R. A. 626, affirming 49 Ill. App. 315; Scofield v. Lake Shore & M. S. R. R., 43 Ohio St. 571, 3 N. E. 907, 54 Am. 42 In re Restricted Rates, 20 I. C. C. R. 426. 43 Nebraska-Iowa Grain Co. v. U. P. R. R., 15 I. C. C. 90. pany for use of latter's docks and facilities in handling its shipments must be scrutinized." And terminal arrangements involving privileges to special concerns have been repeatedly condemned by the courts.45 As the authorities now have jurisdiction over allowances, they will not permit any unreasonable compensation for any service connected with transportation performed by the shipper or consignee.46 Nor will the Commission permit any allowance to be made for services not owed by the carrier to the shipper or consignee, such as the loading or unloading of carload freight by special mechanisms or plant facilities. 47 732. Unjustifiable differences in rates. The difficulty in applying these principles to particular cases is, however, considerable. Unless the railroad offers both services to all shippers alike, so that any shipper is free to choose his method of shipment, discrimination will necessarily result in favor of those who ship at the lower rates in comparison with those who are compelled to pay the higher rates. In the oil business particularly, the complaints against the differences between tank rates and barrel rates have been both loud and long, and the problem has been brought before the Commission several times. In the earliest of these cases, 48 Commissioner Cooley pointed out that the argument justifying differentials although sound enough doubtless, abstractly, did not meet the actual conditions. "It is obvious, we think, from the facts stated, that instead of the defendants offering two modes of transportation which are open to the acceptance of all, they offer only one which is open. The other is offered on such terms that it can by possibility be 44 International Salt Co. v. G. & W. R. R., 20 I. C. C. 530. 45 Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 31 Sup. Ct. 279. 46 Mitchell Coal Co. v. Pa. R. R., 230 U. S. 248, 33 Sup. Ct. 916. "Tap Line Cases, 234 U. S. 1, 34 Sup. Ct. 741. 48 Rice v. Louisville & Nashville Ry., 1 Int. Com. Rep. 722, 1 I. C. C. Rep. 503. |