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charged the complainant is unreasonable, while pertinent to the issue in a sub-
sequent suit by such complaint to recover damages, in that it establishes a viola-
tion of the act, is not decisive of the c|uestion of liability for damages, either
prima facie or otherwise, but its evidential value on that issue is for the determi-
nation of the court and jury. In such an action, a finding made by the commis-
sion that plaintiff was charged an unreasonable rate as a shipper by defendant,
and an order of the commission awarding plaintiff damages in a sum representing
the difl:erence between the amounts paid by him under such rate and what he
would have paid under a rate found to be reasonable do not constitute evidence
making a prima facie case, since others than plaintiff as the shipper may have
sustained the actual pecuniary loss from the overcharge, and the statute author-
izes the recovery only of actual damages sustained by the plaintifif, and not of
a penalty. The statute although making the findings of fact of the commission
prima facie evidence of the facts found, does not make such facts prima facie
evidence of anything; but their pertinency and evidential weight and value are for
the determination of the court and jury as in other civil cases."*'*

§§ 4075-4096. Discrimination and Preference — § 4075. In General.

— The Interstate Commerce Act provides that if any common carrier subject to
the provisions of this act shall, directly or indirectly, by any special rate, rebate,
drawback or other device, charge, demand, collect or receive from any person or
persons a greater or less compensation for any service rendered, or to be ren-
dered, in the transportation of passengers or property, subject to the provisions
of this act, than it charges, demands, collects or receives from any other person
or persons for doing for him or them a like and contemporaneous service in the
transportation of a like kind of traffic under substantially similar circumstances
and conditions, such common carrier shall be deemed guilty of unjust discrimi-
nation, which is hereby prohibited and declared to be unlawful. ^^ Rates pre-

only tangible ground upon which it will R. Co., 168 U. S. 144, 42 L. Ed. 414, 18

be found to rest is the fact that there S. Ct. 45. See post, "Review," §§ 4183-

had been an advance in the rates to Pen- 4189.

sacola and Mobile, and that the Mont- 43. Lehigh Valley R. Co. v. Meeker,

gomery rate exceeded the sum of the 211 Fed. 785.

rates through these, points as they stood 44. In independent action for dam-
prior to this increase, making the increase ages. — On the trial of such an action for
in these intermediate rates the only proof damages, in which plaintiff has been per-
of unreasonableness, not only as to Pen- mitted to introduce the report of the com-
sacola and Mobile, but Montgomery also. mission, it is the duty of the court to
It is conceded l)y counsel for the gov- instruct the jury as to what are and what
crnment that, if this were true as to the are not findings of fact therein which are
rates to Montgomery, the order of the made prima facie evidence by the stat-
commission would be invalid, because it iite. Lehigh Valley R. Co. v. Meeker, 211
would not be based on the reasonal)Ie- Fed. 785.

ness or unreasonableness of these rates 45. Discrimination. — Interstate Corn-
independently considered." Louisville, merce Conim. v. Baltimore, etc., R. Co.,
etc., Railroad v. Interstate Commerce 145 U. vS. 2G3, 36 L. Ed. 699, 12 S. Ct.
Comm., 195 Fed. 541. _ H44; Interstate Commerce Comm. v.
42. Review of determination. — Inter- F'irimsom, 154 U. S. 447, 38 L. Ed. 1047,
state Commerce Comm. v. .Mabama Mid. 13 S. Ct. 1125; Texas, etc., R. Co. v. In-

4 Car— 37



§ 4075



CARRIERS.



3684



scribed by the interstate commerce commission under the statute are not only re-
quired to be just and reasonable within the constitutional guaranty, but they must
also not be unjustly discriminatory nor unduly preferential.-*"

Power of Congress. — There can be no question as to the power of congress
to regulate interstate commerce to prevent favoritism and to secure equal rights
to alfengaged in interstate trade, and to this end congress had the constitutional
power to adopt a policy looking to the equality of rates to shippers over interstate
carriers, and to prescribe appropriate means to give it effect.-*'

Object of Statute.— The objects of the Elkins law are to prevent favoritism
and to secure equal rights to all in interstate transportation, and one legal rate,
to be published and posted so as to be open to public inspection and accessible to
all alike ; to prohibit and punish secret departures from the published rates, and
to prevent and punish rebating, preferences and all acts of undue discrimina-
tion; and this without regard to whether persons or places be the sufferers.^^
The 'wrong prohibited is a discrimination between shippers. It is designed to
compel every carrier to give equal rights to all shippers over its own road and to
forbid it by any device to enforce higher charges -against one than another.-*^
The act prohibits any rebate or other device by which two shippers, shipping
over the same line, the same distance, under the same circumstances of carriage,
are compelled to pay dift'erent prices thereof.^^*'

Construction of Statute.— There is not only a relation, but an indissoluble
unity between the provision for the establishment and maintenance of rates un-
til corrected in accordance with the statute and the prohibitions against prefer-
ences and discrimination. This follows, because unless the requirement of a uni-
form standard of rates be complied with, it would result that violations of the
statute as to preferences and discrimination would inevitably follow. ^^ The pro-



terstate Commerce Comm., 162 U. S. 197,
40 L. Ed. 940. 16 S. Ct. 666; United States
V. Trans-Missouri Freight Ass'n, 166 U.
S. 290, 41 L. Ed. 1007, 17 S. Ct. 540; Par-
sons V. Chicago, etc., R. Co., 167 U. S.
447, 42 L. Ed. 231, 17 S. Ct. 887; Inter-
state Commerce Comm. v. Cincinnati,
etc., R. Co., 167 U. S. 479, 42 L. Ed. 243,
17 S. Ct. 896; Wight v. United States, 167
U. S. 512, 42 L. Ed. 258, 17 S. Ct. 822; Sa-
vannah, etc., R. Co. V. Florida Fruit Exch.,
167 U. S. 512, 42 L. Ed. 257, 17 S. Ct. 998;
Interstate Commerce Commission v. Ala-
bama Mid. R. Co., 168 U. S. 144, 42 L.
Ed. 414, 18 S. Ct. 45; Texas, etc., R. Co.
V. Abilene Cotton Oil Co., 204 U. S. 426,
51 L. Ed. 553. 27 S. Ct. 350, 9 Am. &
Eng. Ann. Cas. 1075.

English statute adopted. — It is mod-
eled upon § 90 of the English "Railway
Clauses Consolidation Act," of 1845,
known as the "Equality Clause." Texas,
etc., R. Co. V. Interstate Commerce
Comm., 162 U. S. 197, 40 L. Ed. 940, 16
S. Ct. 666.

46. Missouri, etc., R. Co. v. Interstate
Commerce Comm., 164 Fed. 645.

47. Power of congress. — Louisville, etc.,
R. Co. V. Mottley, 219 U. S. 467, 55 L.
Ed. 297, 31 S. Ct. 265. 34 L. R. A., N.
S., 671; New York, etc., R. Co. v. United
States, 212 U. S. 481, 53 L. Ed. 613, 29
S. Ct. 304.

48. Object of statute. — New York, etc.,
R. Co. V. United States, 212 U. S. 481, 53
L. Ed. 613. 29 S. Ct. 304; New York,
etc., R. Co. V. Interstate Commerce



Comm., 200 U. S. 361, 50 L. Ed. 515, 26
S. Ct. 272; Armour Packing Co. v. United
States, 209 U. S. 56, 52 L. Ed. 681, 28 S.
Ct. 428; American Exp. Co. v. United
States, 212 U. S. 522, 53 L. Ed. 635, 29
S. Ct. 315; Interstate Commerce Comm.
V. Chicago, etc.. R. Co., 218 U. S. 88, 54
L. Ed. 946, 30 S. Ct. 651; Interstate Com-
merce Comm. V. Illinois, etc., R. Co., 215
U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155.

49. Wight V. United States, 167 U. S.
512, 42 L. Ed. 258, 17 S. Ct. 822; Texas,
etc., R. Co. V. Interstate Commerce
Comm., 162 U. S. 197, 40 L. Ed. 940, 16
S. Ct. 666.

50. Wight V. United States, 167 U. S.
512, 42 L. Ed. 258, 17 S. Ct. 822; Inter-
state Commerce Comm. v. Alabama Mid.
R. Co., 168 U. S. 144. 42 L. Ed. 414, 18
S. Ct. 45.

51. Construction of statute. — Texas,
etc., R. Co. V. Abilene Cotton Oil Co.,
204 U. S. 426, 51 L. Ed. 553, 27 S. Ct.
350, 9 Am. & Eng. Ann. Cas. 1075.

It is not open to question that the pro-
visions of § 2 of the act to regulate com-
merce were substantially taken from § 90
of the English Railway Clauses Consoli-
dation Act of 1845, known as the "equal-
ity clause." Texas, etc., R. Co. v. In-
terstate Commerce Comm., 162 U. S. 197,
40 L. Ed. 940, 16 S. Ct. 666. Certain also
is it that, at the time of the passage of
the act to regulate commerce, that clause
in the English act had been construed as
only embracing circumstances concern-
ing the carriage of the goods, and not the-



3685



INTERSTATE COMMERCE ACT.



§ 4075



hibitions of the act to regulate commerce as to rebates, favoritism, and discrimi-
nation having been construed by the interstate commerce commission, charged
with its execution, to be inappHcable to the freight rates for coal charged by in-
terstate carriers empowered to mine and market coal by their charters or by leg-
islation existing at the time of the adoption of that act, this construction, which
has long obtained in practical execution, and has been impliedly sanctioned by
the re-enactment of the statute without alteration in the particulars construed,
must be treated as read into the statute. '*-

Section 3 of the Interstate Commerce Act, which declares it to be unlawful
for a carrier to give "an undue or unreasonable preference'' to any person, firm,
corporation, or locality, or to subject any person, to any undue or unreasonable
prejudice or disadvantage "in any respect whatsoever," does not refer solely to
facilities afforded to shippers, but applies also to discrimination in rates. ^^

Actual Discrimination. — Actual discrimination in rates charged is necessary
to constitute a violation of the Interstate Commerce Act ; and the mere making
or offering of a discriminating rate, under which it is not shown that any ship-
ment was ever made, constitutes no legal injury to a shipper who is charged a
higher rate.-"*^

Different Charges in Different Territory. — Unlawful preferences and dis-
criminations are created by fixing the freight rate for common soap in less than
carload lots in a new classification adopted to govern in official classification ter-
ritory at twenty per centum less than third class, but not less than fourth class,
at which that commodity had previously been rated, where the result of applying
this classification to the varying rates is to leave soap in less than carload lots in
the fourth class to a considerable extent in one of the subdivisions of such classi-
fication territory, and in a higher class in the other subdivision.^-''

Direct or Indirect. — The power of congress over interstate transportation
embraces all manner of carriage, whether gratuitous or otherwise ; and except as
to the express exceptions made by the act itself, it must be held to have been the



person of the sender; or, in other words,
that the clause did not allow carriers by
railroad to make a difference in rates be-
cause of differences in circumstances aris-
ing either before the service of the car-
rier began or after it was terminated. It
was therefore settled in England that the
clause forbade the charging of a higher
rate for the carriage of goods for an in-
tercepting or forwarding agent than for
others. Great Western R. Co. v. Sutton,
L. R. 4 H. L. 226; Evershed v. London
& N. W. R. Co., L. R. 3 App. Cas. 1029,
5 Eng. Rul. Cas. 351, and Denaby Main
Colliery Co. v. Manchester, S. & L. R.
Co., L. R. 11 App. Cas. 97; Interstate
Commerce Comm. v. Delaware, etc., R.
Co., 220 U. S. 235, 55 L. Ed. 448, 31 S.
Ct. 392.

The section itself forbids the carrier
"directly or indirectly by any special
rate, rebate, drawback or other device"
to charge, demand, collect or receive from
any person or persons a greater or less
compensation, etc. And § 6 of the act,
as amended in 1889, throws light upon
the intent of the statute, for it requires
the common carrier in publishing sched-
ules to "state separately the terminal
charges, and any rules or regulations
which in any wise change, affect or de-
termine any part or the aggregate of



such aforesaid rates and fares and
charges." Wight v. United States, 167
U. S. 512, 42 L. Ed. 258, 17 S. Ct. 822.

52. Decree 128 Fed. 59, modified in New
York, etc., R. Co. v. Interstate Commerce
Comm., 26 S. Ct. 272, 200 U. S. 361, 50
L. Ed. 515.

53. United States v. Tozer. 39 Fed. 904.

54. Actual discrimination. — "I still
think that a mere paper rate, which is
never carried into effect, and is there-
fore simply a proposition to carry for
a specified sum, is not such a violation
of the Interstate Commerce Act as to
prevent the carrier from recovering
freight from other than the theoretically
favored shippers. It is discrimination in
fact, and not a mere intention to discrim-
inate, that is punishable; and in the case
l)efore the court there was no evidence
that a pound of coal had been carried to
be sold in tlie market by any other ship-
per than the defendants. Hence no rival
of the defendants was benefited by the
unaccepted rate, and no harm was done
tfi their business." Lehigh Valley R. Co.
V. Raincy, 112 Fed. 487.

55. Different charges in different ter-
ritory. — Dc'c-ri'c. IntcTStati' Commerce
Comm. V. Cincinnati, etc., R. Co., 146
Fed. 559, affirmed in 206 U. S. 142, 51 L.
Ivl. 995, 27 S. Ct. 648.



§§ 4075-4076 . carriers. 3686

intention of congress to prevent a departure from the published rates and sched-
ules in any manner whatsoever. The all embracing prohibition against either di-
rectly or indirectly charging was that the published rates show that the purpose
of the statute was to make the prohibition applicable to every method of dealing
by which the forbidden result could be brought about. If this were not so, a wide
door would be open to favoritism in the carriage of property free, or partially
free, of charge.''*' The prohibition in the Interstate Commerce Act against di-
rectly or indirectly charging less than the published rates shows that the purpose
of the statute was to make the prohibition applicable to every method of dealing
by carrier by which the forbidden result could be brought about. The public
purpose for which the statute was intended was to compel the carrier as public
agent to give equal treatment to all. To this extent and for these purposes the
statute was remedial and is, therefore, entitled to receive that interpretation
which reasonably accomplishes the great public purpose which it was enacted to
subserve. •"''^ In view of the provision that no departure from the published rates
shall be made directly or indirectly, the carrier can not take itself out of the
statute, by electing to be a dealer and transport a commodity in that character.
If a carrier has a right to disregard published rates by resorting to a particular
form of dealing there is no obligation on the part of the carrier.^^

Unjust and Unreasonable. — It is not all discriminations and preferences
that are forbidden, only such as are unjust or unreasonable.^^

§ 4076. Like and Contemporaneous Service. — In order to constitute an
unjust discrimination the carrier must charge or receive directly from one person
a greater or less compensation than from another, or must accomplish the same
thing indirectly by means of a special rate, rebate or other device ; but in either
case it must be for a like and contemporaneous service in the transportation of a
like kind of traffic, under substantially similar circumstances and conditions.'^"
The evident meaning of the federal statute is that the discrimination con-
demned must have the effect of unduly favoring some individual, class, or place
at the expense and to the prejudice and disadvantage of some other shipper or
place, where the services rendered were "like and contemporaneous," and where
the transportation was effected under "substantially similar circumstances and
conditions." "^^ The act implies that, in deciding whether dift'erences in charges,
in given cases, were or were not unjust, there must be a consideration of the sev-
eral questions whether the services rendered were like and contemporaneous,
whether the kinds of traffic were like, whether the transportation was affected
under substantially similar circumstances and conditions. To answer such ques-
tions, in any case coming before the commission, requires an investigation into
the facts ; and we think that congress must have intended that whatever would be
regarded by common carriers, apart from the operation of the statute, as mat-
ters which warranted differences in charges, ought to be considered in forming a
judgment whether such differences were or were not unjust. Some charges

56. Direct or indirect. — American Exp. 59. Unjust and unreasonable. — Inter-
Co. V. United States, 212 U. S. 522, 53 state Commerce Conim. v. Baltimore, etc.,
L. Ed. 635, 29 S. Ct. 315; United States v. R. Co., 145 U. S. 263, 36 L. Ed. 699, 12
New York, etc.. R. Co., 212 U. S. 509, 53 S. Ct. 844.

L. Ed. 629, 29 S. Ct. 313; Louisville, etc., 60. Like and contemporaneous service.

R. Co. V. Mottley, 219 U. S. 467, 55 L. — Interstate Commerce Comm. v. Balti-

Ed. 297, 31 S. Ct. 265, 34 L. R. A., N. more, etc., R. Co., 145 U. S. 263, 36 L.

S., 671; New York, etc., R. Co. v. Inter- Ed. 699, 12 S. Ct. 844; Swift & Co. v.

state Commerce Comm., 200 U. S. 361, United States, 19G U. S. 375, 49 L. Ed.

50 L. Ed. 515, 26 S. Ct. 272. 518, 25 S. Ct. 276; Texas, etc., R. Co. v.

57. New York, etc., R. Co. v. Inter- Interstate Commerce Comm., 162 U. S.
state Commerce Comm., 200 U. S. 361, 197, 40 L. Ed. 940, 16 S. Ct. 666.

50 L. Ed. 515, 26 S. Ct. 272. 6L Laurel Cotton Mills v. Gulf, etc.,

58. New York, etc., R. Co. v. Interstate R. Co., 84 Miss. 339, 37 So. 134, 66 L.
Commerce Comm., 200 U. S. 361, 50 L. R. A. 453.

Ed. 515, 26 S. Ct. 272.



3687 INTERSTATE COMMERCE ACT. § 4076

might be unjust to shippers — others might be unjust to the carriers. The rights
and interests of both must, under the terms of the act, be regarded by the commis-
sion.*^- When substantially dissimilar circumstances and conditions exist, the
carriers have a large discretion in fixing the rates accordingly, but subject to the
supervisory control of the interstate commerce commission under the Interstate
Commerce Act.*^^

What Constitutes Like Service. — To come within the inhibition of the stat-
ute the differences must be made under like conditions, that is, there must be
contemporaneous service in the transportation of like kinds of traffic under sub-
stantially the same circumstances and conditions. '"■*

What Constitutes Contemporaneous Service. — Services rendered to a
complaining and a favored shipper are contemporaneous as long as the discrimi-
nating rates remain in force, and for the purpose of comparison they need not
be rendered on the same day, nor during the same week or month. '^s

Like Kind of Traffic. — Classification of railway crossties in a different class
from lumber generally, imposing on them a higher rate, constitutes unjust dis-
crimination.*^'^

Similar Circumstances and Conditions. — The similarity of circumstances
and conditions under which a service of carriage is rendered, which, under the
interstate commerce act, requires an equality of rate, relates to the circumstances
and conditions which affect the servdce only, and, where dift'erent coal mining lo-
calities are grouped into a district for rate-making purposes, a carrier is not justi-
fied in making a different rate for the same or substantially similar service from
a particular locality in such district, or on the product of a particular mine or
vein, from that charged others because the dift'erence in the product from such lo-
cality mine or vein and that from other mines in the district is such that it can
pay a higher rate and still compete in the market."^'

Contract for Continuous Shipment. — In the provision in the Interstate
Commerce Act prohibiting discrimination between shippers under "substantially
similar circumstances and conditions," such phrase relates to the circumstances
and conditions of carriage only, and does not include matters affecting individual
shippers ; and a railroad may not charge one shipper of coal a lower rate than^ is
charged another shipper between the same terminals, because the former is ship-

62. Texas, etc., R. Co. v. Interstate Com- apart, would therefore be too remote. No
merce Comm., 162 U. S. 197, 40 L. Ed. doubt 'contemporaneous' means 'at the
940, 16 S. Ct. 666. same time,' but at the same time with

63. Interstate Commerce Comm. v. what? A term is evidently implied which
Baltimore, etc., R. Co., 145 U. S. 263, 36 must be looked for in the context and in
L. Ed. 699, 12 S. Ct. 844; Interstate Com- the subject matter of the statute. In my
merce Comm. v. Alabama Mid. R. Co., 168 opinion the well-known evil aimed at in
U. S. 144, 42 L. Ed. 414, 18 S. Ct. 45; § 2 requires the court to hold that the im-
East Tennessee, etc., R. Co. v. Interstate plied term in the comparison is the of-
Commerce Comm., 181 U. S. 1, 45 L. Ed. fending rates, making the word to mean,
719. 21 vS. Ct. 516; Interstate Commerce 'at the same time with the offending rates.'
Comm. V. Clyde vSteamship Co., 181 U. S. and that, as long as these rates remain in
29, 45 L. Ed. 729, 21 S. Ct. 512; Interstate force, the services rendered to a corn-
Commerce Comm. V. Louisville, etc., R. plaining and to a favored shipper are 'con-
Co., 190 U. S. 273, 47 L. Ed. 1047, 23 S. temporaneous' within the meaning of the
(3t. 687. statute. As far as I am aware, there is

64. What constitutes like services. — In- no decision upon this subject, but Wight
terstate Commerce Comm. v. P.altimore, v. United vStates, 167 U. S. 512, 42 L. Ed.
etc., R. Co., 145 U. S. 263, 36 L. I'.d. 699, 258, 17 S. Ct. 822. furnishes, I think, some
\2 vS. Ct. 844. inferential support to the construction just

65. What constitutes contemporaneous given." Mitchell Coal, etc., Co. v. Penn-
service.— "The defendant also argues that sylvania R. Co., ISI i'ed. 403.

in computing the damages 'coiUeniporane- 66. Like kind of traffic— American, etc..

ous service' must l^e confined to sIiiiMnents Tinil)er Co. v. Kansas, etc., R. Co., 175

made for the plaintiff and for tlie favored k'ed. 28.

shippers at the same, or practically the 67. Similar circumstances and conditions,

same, moment of time; and that ship- — Phila(lel])liia, etc., i\. Co. v. Interstate

ments a week apart, or certainly a montli Conunercc Comm., 174 l-'ed. 087.



§ 4076 CARRIERS. 3688

ping under contracts extending over a term of years, based on lower rates which
were in force when such contracts were made, while the other shipper has no such
contracts. *'s An official classification, providing that car load rates shall apply to
cars loaded with diiTerent packages intended for different consignees only when
the consignor or consignee is the actual owner of the property, and a rule declar-
ing that shipments of property combined into packages by forwarding agents
claiming to act as consignors will only be accepted when the names of individual
consignors and consignees, as well as the character and contents of each package,
are declared to the forwarding railroad agent, when the property will be waybilled
as separate shipments and freight charged accordingly, are reasonable and valid,
and are not violative of Interstate Commerce Act prohibiting discrimination, and
requiring equal charges to all for the same or like and contemporaneous service ;
there being a substantial dissimilarity of conditions relating to the matter of car-
riage of car load freight assembled by forwarding agents and the transportation
of car load freight, though made up of shipments to various consignees, where
the consignor or consignee is the owner of the property .•^'^

Coal Shippers. — Where a railroad company engaged in the interstate car-
riage of coal from the mines in its schedule of rates filed and published has
grouped all points within a given territory together as a single initial point of
shipment from which it makes the same rates, whether such points are on its own
or connecting lines, the service rendered to all shippers from any of such points
in the contemporaneous transportation of coal to the same terminal point, or to
points within the same terminal group, is under substantially similar circurn-



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