Графични страници
PDF файл
ePub

and so endowed by reason of the public service they render. As a consequence of this, all individuals have equal rights both in respect to service and charges. Of course, such equality of right does not prevent differences in the modes and kinds of service and different charges based thereon. There is no cast iron line of uniformity which prevents a charge from being above or below a particular sum, or requires that the service shall be exactly along the same lines. But that principle of equality does forbid any difference in charge which is not based upon difference in service, and, even when based upon difference of service, must have some reasonable relation to the amount of difference, and cannot be so great as to produce an unjust discrimination. To affirm that a condition of things exists under which common carriers anywhere in the country, engaged in any form of transportation, are relieved from the burdens of these obligations, is a proposition which, to say the least, is startling."

Further in the opinion it was stated that "the principles of the common law are operative upon all interstate commercial transactions, except so far as they are modified by congressional action," and we may conclude that such principles required "equal rights both in respect to service and charges," when the circumstances and conditions were the same; and where the circumstances and conditions were dif ferent, the difference in services and charges should bear a reasonable relation thereto.

3

§ 139. Damages Under Common Law for Unjust Discriminations. In the Parsons case, the question discussed was not the right to "equality of charge * for similar

services," but that opinion had reference to plaintiff's right to recover damages under the special facts there involved. That inequality of charges for similar services was wrong was not questioned, for said the court: "Before any party can recover under the act he must show, not merely the wrong of the carrier, but that that wrong has in fact operated to his injury. If he had shipped to New York and been charged local rates he might have recovered any excess thereon over

3 Parsons v. Chicago & N. W. R. Co., 167 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887.

through rates. He did not ship to New York and yet seeks to recover the extra sum he might have been charged if he had shipped."

The same comment applies to the decision in the Coal case. That case was based upon the fact that the carrier had given to certain shippers what was decided to be a rebate and had not given the same allowances to the plaintiff suing. In the District Court the plaintiff recovered, and the recovery was sustained by the Circuit Court of Appeals. In the Supreme Court the judgment of the Circuit Court of Appeals was reversed and a new trial ordered, not because the plaintiff did not have a right of action, but because it had not shown that it had suffered legal damages.

5

Neither of these cases denies that at common law a shipper had a right to equality of charges under similar circumstances, and in this respect neither conflicts with the statement of Mr. Justice Brown quoted in the preceding section. That equality of service from a public service company or corporation was a right at common law, seems to be, so far as the Supreme Court of the United States has spoken, undisputed. In order to recover damages for an invasion of this right, proof of the fact of having suffered legal damages is necessary.

Where, as under the Constitution of the United States, a schedule of rates may not be fixed less than will yield a fair return on the property employed in the public use, every customer of a public carrier is, to some extent, interested in what is charged every one else. It is true that an individual may not have a cause of action so long as what he pays is reasonable, unless the preference granted others damages him.

Neither under our statute nor under the common law is mere discrimination prohibited, but it will be found, upon an

4 International Coal Mining Co. v. Pennsylvania R. Co., 162 Fed. 996.

5 Pennsylvania R. Co. v. International Coal Co., 173 Fed. 1, 97 C. C. A. 383.

6 Pennsylvania R. Co. v. Interna

tional Coal Co., 230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 893. See, following this case and citing authorities, New Orleans Board of Trade v. Illinois C. R. Co., 29 I. C. C. 32.

examination of the English authorities, that where the circumstances and conditions were the same, those who dealt with a common carrier were entitled to equal treatment.

These principles are consistent with what, in 1916, the Commission announced as its settled doctrine."

§ 140. Comparison of the English Railway and Canal Act with the Interstate Commerce Act. The remark of the Supreme Court in Int. Com. Com. v. Baltimore & O. R. Co.,8 "that Congress, in adopting the language of the English act, had in mind the construction given to these words by the English courts" had reference to Section 3 of our Act, although to a lesser extent the same could be said of Section 2.

Section 2 of the Act of February 4, 1887 (Post., Sec. 427) known as the unjust-discrimination clause, is based upon § 90 of the English Railway Clauses Act of 1845." The section of the English Act, called the Equality Clause, provided that "tolls be at all times charged equally to all persons, and after the same rate, whether per ton per mile or otherwise, in respect of all passengers, and of all goods or carriages of the same description, and conveyed or propelled by a like carriage or engine, passing only over the same portion of the line of railway under the same circumstances." Section 2 of the Interstate Commerce Act used the words "under substantially similar circumstances and conditions," which phrase is not so exclusive as the words of the English Act which requires equality only when the transportation is "over the same portion of the line of railway." The American Act is, therefore, broader in its scope than the English Act, but each Act recognizes that "different circumstances" may justify different rates. The English statute uses the word "same" before "circumstances;" ours uses the word "similar." This difference and the broader scope of the American Act should be

7 Astoria v. S. P. & S. Ry. Co., 38 I. C. C. 16, 24; See also La Crosse Shippers Assn. v. Chicago & N. W. Ry. Co., 38 I. C. C. 453, 461-463, and Sec. 154, post.

8 Int. Com. Com. v. Baltimore & O. R. Co., 145 U. S. 263, 36 L. Ed. 699, 703, 12 Sup. Ct. 844.

9 Browne & Theobald Law of Railways (English), p. 312; Trammel, Railroad Commissioners of Georgia v Clyde S. S. Co., 5 I. C. C. 324, 4 I. C. R. 120, 140.

[ocr errors]

kept in mind when considering the English decisions. Section 2 of the English Railway and Canal Traffic Act of 185410 furnished the model of Section 3 of our Act.11 The English and the American sections just referred to are each designated as the "undue-preference clause." The fourth section of the American Act, known as the "long-and-short-haul clause,' was unlike any section of the English Act prior to 1887. In 1888, the Railway and Canal Traffic Act of that year gave the English Commissioners power to prohibit a higher charge for a less distance where the service is similar. The provision is the third paragraph of Section 27 and reads as follows:12

"The court or the commissioners shall have the power to direct that no higher charge shall be made to any person for services in respect of merchandise carried over a less distance than is made to any other person for similar services in respect of the like description and quantity of merchandise carried over a greater distance on the same line of railway."

This comparison may be concluded by quoting the language of the Commission as follows:13

"In a case purely of alleged undue preference or prejudice the English cases have direct application. Even in cases under our second and fourth sections, English cases brought under the undue preference clause in which the decision has held undue preference to exist, have value as showing how strictly the English commission or court has applied the broader language of the clause to a particular set of facts, but when English decisions under the undue-preference clause are cited by a carrier in justification of its action under the strict language of our second and fourth sections, the citations have greatly diminished force. These sections apply only against rates in specific cases, but the undue-preference clause or third section is inclusive; it applies both to rates and facilities, and says generally to the carrier, you shall not in

10 Browne & Theobald, ante. Tram- way and Canal Traffic Act of 1888; mell Case, ante, Note 5. Browne & Theobald, pp. 765 to 772. 13 Trammel, Railroad Commission of Georgia v. Clyde S. S. Co., 5 I. C.

11 Post, Sec. 428; Note 7, ante, this chapter.

12 Browne & Theobald, p. 771; see C. 324, 4 I. C. R. 120, 143, 144. also Sections 25 to 27 English Rail

any manner unduly prefer one person or kind of traffic over another, and leave it to the commission or the court to say when the undue preference is given. In the second and fourth sections what is unlawful is clearly defined, the circumstances and conditions of the transportation being similar in substance. We think, therefore, that while English cases are valuable as defining undue preference or prejudice their value is greatly limited in cases where the statute itself describes the offense it declares unlawful."

§ 141. Unjust Discrimination Forbidden.-Equality of rights and privileges under "substantially similar circumstances and conditions" is sought to be guaranteed shippers and "particular descriptions of traffic" by Sections 2, 3 and 4 of the Interstate Commerce Act. These sections, which were in the original Act and have been enlarged and retained in the Amendments, announce the principles of law fixing equality of charges and service by common carriers. These principles are supported and enforced by the provisions of the Act which prohibit free passes, except under certain prescribed limitations; prohibit carriers from transporting commodities in which they are interested; require the making of switch connections; regulate the pooling of freights; require schedules of rates to be printed, posted and maintained; prevent changes in rates without at least thirty days notice, unless special permission is given to make changes on less notice; provide punishment for granting, receiving, or inducing the payment of rebates; punish false billing; require witnesses to testify, and prescribe methods of procedure for the public enforcement of the Act and the protection of individuals who may suffer from its violation.

Inequality of charges is an evil that is more readily seen and keenly felt than are charges unjustly high. A difference in a freight charge of a few cents per hundred pounds on a particular commodity may mark the line between a reasonable and an unreasonable rate and the higher charge may be unjust and unreasonable. The injustice, however, is so distributed that no one feels seriously hurt and no complaint is made. A preferential or discriminatory charge may make or unmake cities and individuals and may hurt some to the

« ПредишнаНапред »