conductors shall collect twenty-five cents additional fare on trains. from passengers without tickets was not an unjust discrimination. 3 I. C. C. R. 512, 2 Int. Com. Rep. 766.

It has been ruled by the commission that commutation rates for school children must be open to all children within the age limit. See 17 I. C. C. R. 144; 12 I. C. C. R. 95. Such rates are not in the nature of charity and, therefore, did not come within the exceptions of the rule in sec. 22.

While a carrier has a wide field of reasonable discretion in passenger service it cannot justify an unreasonable discrimination between localities in refusing to stop its train at a particular place on certain days by a contract not to do so. In 17 I. C. C. R. 396, the stoppage of trains on Sunday at a mountain resort was brought about by the influence of the patrons of the place, and it was ruled, under the circumstances, not unreasonable.

The discrimination involved in the carrying of personal baggage of a passenger without extra charge, is not undue as against a passenger without baggage. The commission said, 17 I. C. C. R. p. 88, that a railroad could properly carry for one charge a passenger and his personal baggage, and could provide a separate car for transportation of baggage, could limit the amount of baggage to be carried free, and make a charge for the excess. The commission did not decide whether 150 pounds was a reasonable limitation of the amount of baggage, or whether the samples of a drummer ought properly to be carried as baggage at all, or whether the excess rates charged were reasonable, as these questions were not presented by the record.

§ 219 (166). Giving passes to shippers prohibited.—A railroad official who gives a pass for interstate transportation as a matter of personal favor, not within any of the exceptions contained in section 22, violates sections 2 and 3 of the act. Charge to Grand Jury (N. Dist. of Cal.), 66 Fed. Rep. 146. One riding on a pass and assuming all risks of accident is. bound thereby and cannot recover, and it is immaterial that the pass was issued in violation of the act. Duncan v. Maine Central R. R. Co., 113 Fed. 508.

It has been ruled by the commission that the giving of free transportation to shippers, 7 I. C. C. R. 92, or any free transportation other than that allowed by section 22 of the act is illegal. 2 I. C. C. R. 359 and 2 Int. Com. Rep. 243.

The supreme court has in recent cases sustained the validity of stipulations in railway passes against liability for injuries, where parties accept the passes with knowledge of such conditions. See Northern Pacific R. Co. v. Adams, 192 U. S. 440, 18 L. Ed. 513 (1904), and Boering v. Chesapeake Beach R. Co.. 193 U. S. 442, 48 L. Ed. 742 (1904).

Since the above rulings were made, the giving of passes other than to certain excepted classes is prohibited and made penal both on the part of the railroad and the recipient, see § 156, supra.

§ 220. Unjust discrimination in telephone service.—In the first telephone case that was before the commission, 20 I. C. C. R. 614 (1911), it was ruled that contacts between old subscribers and the company, even though valid when made, could not, after congress had undertaken to regulate the rates and practices of telephone companies, be accepted as justifying its charges as between its subscribers similarly situated, such undue discrimination being forbidden by the act. It seems in this case that a few subscribers connected with the new exchange were previously connected with another exchange, which had been abandoned by the defendant company from motives of economy of management and efficiency in service. But the commission ruled that this did not warrant the exaction of the current charges from the new subscribers, while for the same service and facilities the old subscribers continued to pay the lower charges formerly exacted at the old exchange. It seems that there was no difference either in the physical service or in the efficiency of the service, which was rendered by the defendant to the old subscribers at the old exchange and to its new subscribers resident in the same locality who paid the current rates.

§ 221 (167). Application of the section.-This section only deals with the discrimination, which consists of the charging one person with a different compensation, than is charged another for a like and contemporaneous service for the transportation of a like kind of traffic under substantially similar circumstances and conditions. Forms of discrimination which relate to the furnishing of facilities, such as car service and the like, are

prohibited by the more comprehensive language of section 3, infra.

The mere fact of the payment of a rebate may not constitute "an unjust discrimination" at common law, or under the statutes, at least prior to the amendment of 1903. Thus it was held in a state case, Laurel Cotton Mills v. Gulf, etc., Railway Co., supra, by the supreme court of Mississippi, that if there is no unjust discrimination, an agreement by a carrier that they will carry goods at a certain rate and repay the shipper a part thereof as a rebate after the shipment, is not illegal, and the rebate may be recovered by the shipper in a proper case. But under the publication of rates required under section 6 of the Interstate Commerce Act and especially in view of the provisions of the Elkins Act of February 19, 1903, infra, any deviation from the published rate constitutes an offense. If a rebate therefore is paid to one, it must be paid to all under similar circumstances, and the rebate must be a part of the published tariff.

In the Beef Trust case, Swift v. United States, supra, the bill alleged that the defendants as a part of their unlawful combination for monopolizing the market, were obtaining arrangements with the railroads whereby by means of rebates and other devices they paid less than the lawful rates for transportation. The supreme court said that this did not necessarily charge unlawful acts, as the defendants might severally lawfully obtains less than the lawful rates for transportation, if the circumstances were not substantially dissimilar for which the regular rates were charged, as if they furnished their own cars, for instance, and there were other differences in the service. But as the charge was made in connection with the alleged attempt to monopolize the market in violation of the Anti-Trust Act, the court said that no more powerful instrument of a monoply could be used than an advantage in the cost of transportation, and that every act done with the intent to produce an unlawful result is unlawful. The charge was therefore held material in connection with the other charges in the bill. See supra, § 81.

This section of the statute has no application where the traffic is of different kinds and classes not competitive with

each other. 8 I. C. C. R. 531 and 5 I. C. C. R. 193, 3 Int. Com. Rep. 841. There is no discrimination under this section in the case of impartial action. It must consist in doing for or allowing to one party or place what is denied to the other. 1 I. C. C. R. 401, 1 Int. Com. Rep. 703. A like kind of traffic within the meaning of this section does not mean taffic that is identical, but a kind that is capable of a fair and just classification. 4 I. C. C. R. 447, 3 Int. Com. Rep. 417. The section has no application to terminal charges in different cities, 7 I. C. C. R. 513, nor is there any unjust discrimination involved in the refusal to pay mileage to a private car company. 1 I. C. C. R. 132, 1 Int. Com. Rep. 329.

Discriminations based solely upon the business motives of the shipper are illegal. 6 I. C. C. R. 85.

§ 222 (168). Retention of overcharge.-The Interstate Commerce Act does not recognize indefinite or uncertain transportation charges. The idea of unequal compensation for like service, or discrimination in the treatment of persons similarly situated, is repugnant to every requirement of the law, and a party to an interstate shipment cannot be excluded by the carrier from the privileges afforded to other patrons in the same locality because of his refusal to pay excessive freight charges, even though an agreement to subsequently refund the excess should accompany the demand. 6 I. C. C. R. 36. The retention of an overcharge has all the effect of extortion and unjust discrimination, and when the refund of an excessive charge has been unnecessarily delayed for a considerable period, the officials responsible therefor become fairly chargeable with wilful intention to violate the law.

In Ohio Coal Co. v. Whitcomb, 123 Fed. 359, circuit court of appeals, 7th circuit, an extra charge of two dollars per car made to one shipper for access to the docks was held under the facts to be discriminative under the Wisconsin statute, and an agreement by the shipper to pay the discriminating charge in order to obtain the service, to which he was legally entitled without such charge, did not estop him from maintaining a suit to recover back the sum so paid.

223 (169). Enforcement of the section.-The section has no application to cases occurring before the act was passed, 1 I.

C. C. R. 144, 1 Int. Com. Rep. 607, that is, so far as the penalties imposed by the other sections of the act for violation of its provisions are concerned. It has been held however that contracts for rebates made before the act went into effect were thereafter incapable of enforcement. Southern Wire Co. v. St. etc., R. Co., 38 Mo. App. 191.

It is no defense to an action for damages for discrimination in rates that the lower rate is charged between the same terminals, because certain shippers had a contract extending over a term of years based on lower rates which were then in force when the contracts were made, while other shippers had no such contacts. See Pa. R. R. Co. v. International Coal Mining Company, C. C. A. 3rd Circuit, 173 Fed. p. 1. The court said that it was not necessary for the plaintiff to show that he had paid the freight rate charge under protest. The court said that the measure of damages recoverable in such a case is the difference between the amount paid by plaintiff and the amount it would have paid at the lowest rate charged on any other shipments carried under substantially the same circumstances and conditions during the same time; but the shipper, who has been given rebates, could not maintain an action to recover damages for discrimination because he was not granted larger rebates.

In a suit to recover damages for alleged discrimination, it is sufficient to allege that the defendant had charged plaintiff a given rate for transportation, and for like services under substantially the same circumstances and conditions the defendant had charged another a less given rate, or that plaintiff was charged more than the schedule rate. Kinnavey v. Terminal Railroad Association, 81 Fed. 802. In this case it was held by Adams, J., of the eastern district of Missouri, that it was not necessary for the complainant to set out the facts showing that the conditions were similar, but that it was sufficient to allege the ultimate fact in the language of the statute. The payment of an overcharge in such case is not a voluntary payment precluding recovery. L. & N. Consolidated R. Co. v. Wilson, 132 Ind. 517 and 18 L. R. A. 105. See also Murray v. Chicago & Northwestern R. Co., 35 C. C. A. 62, 24, 92 Fed. 868, affirming 62 Fed. 24. It was held that an action by a shipper against a carrier for unjust discrimination in the imposition of freight charges paid by plaintiff, lay at common law, regardless of