on the line of the road, who were obliged to pay at a greater rate. So, in Jones v. Eastern Counties R. Co., 3 C. B. N. S. 718, the court refused an injunction to compel a railway company to issue season tickets between Colchester and London, upon the same terms as they issued them between Harwick and London, upon the mere suggestion that the granting of the latter, the distance being considerably greater, at a much lower rate than the former, was an undue and unreasonable preference of the inhabitants of Harwick over those of Colchester. Upon the other hand, in Ransome v. Eastern Counties R. Co., 1 C. B. N. S. 437, where it was manifest that a railway company charged Ipswich merchants who sent from thence coal which had come thither by sea, a higher rate for the carriage of their coal than they charged Peterboro merchants, who had made arrangements with them to carry large quantities over their lines, and thus the sums charged the Peterboro merchants were fixed so as to enable them to compete with the Ipswich merchant, the court granted an injunction upon the ground of an undue preference to the Peterboro merchants, the object of the discrimination being to benefit the one dealer at the expense of the other, by depriving the latter of the natural advantages of his position. In Oxlade v. Northeastern R. Co., 1 C. B. N. S. 454, 26 L. J. C. P. 129, 1 N. & Mac. 72, a railway company was held justified in carrying goods for one person for a less rate than that at which they carried the same description of goods for another, if there be circumstances which render the cost of carrying the goods for the former less than the cost of carrying them for the latter, but that a desire to introduce northern coke into a certain district was not a legitimate ground for making special agreements with different merchants for the carriage of coal and coke at a rate lower than the ordinary charge, there being nothing to show that the pecuniary interests of the company were affected; and that this was an undue preference.

"In short, the substance of all these decisions is that railway companies are only bound to give the same terms to all persons alike under the same conditions and circumstances, and that any fact which produces an inequality of condition and a change of circumstances justifies an inequality of charge. These traffic acts do not appear to be as comprehensive as our own, and may justify contracts which with us would be

obnoxious to the long and short haul clause of the act, or would be open to the charge of unjust discrimination. But so far as relates to the question of 'undue preference,' it must be presumed that Congress, in adopting the language of the English act, had in mind the construction given to these words by the English courts, and intended to incorporate them into the statute. McDonald v. Harvey, 110 U. S. 619 (28 L. Ed. 269, 4 Sup. Ct. 142).”

In the same case, Circuit Judge Jackson, afterwards Mr. Justice Jackson, said:55 "In passing upon the question of undue or unreasonable preference or disadvantage, it is not only legitimate, but proper, to take into consideration, besides the mere differences in charges, various elements, such as the convenience of the public, the fair interest of the carrier, the relative quantities or volume of the traffic involved, the relative cost of the services and profit to the company and the situation and circumstances of the respective customers with reference to each other, as competitive or otherwise."

§ 151. Same Subject-Application of Section Made by the Commission. There have been a great many cases in which the Interstate Commerce Commission has applied Section 3 of the Interstate Commerce Act. A clear and fair reading of the law, says the Commission, "is one which credits Congress with the intention of stopping all undue discrimination by interstate carriers. It may be said without exaggeration that it is the paramount duty of interstate carriers under this Act to avoid discrimination. 1156

The law is not satisfied because a rate may not be unreasonably high, for, as said by the Commission:

66

"A community is entitled to something more than a reasonable rate; it is entitled to a nondiscriminatory rate. The carrier may not say, 'We will give to this community a reasonable rate' and meet the full requirements of the law; it must

55 Int. Com. Com. v. Baltimore & O. R. Co., 43 Fed. 37, 53, 54, 3 I. C. R. 192. This principle was applied in Gallaway Coal Co. v. A. G. S. R. Co., 40. I. C. C. 311, 320; Nashville Switching, 40 I. C. C. 474, 482.

56 R. R. Com. of La. v. St. Louis S. W. Ry. Co., 23 I. C. C. 31, 41 (Shreveport Case); order sustained by the Supreme Court, Houston E. & W. T. R. Co. v. United States, 234 U. S. 342, 58 L. Ed. 1341, 34 Sup. Ct. 833.

view its rates as a whole and see to it that they effect no advantage or preference to one community over another which does not arise necessarily out of the transportation advantages which the one has over the other.''57

The prohibitions of this section apply to all the carrier's duties and obligations, to facilities and to through routes, for, as said by the Supreme Court and quoted by the Commission, the carrier "is bound to deal fairly with the public, to extend them reasonable facilities for the transportation of their persons and property, and to put all its patrons upon an absolute equality."58

Nor does the fact, that removing unjust discrimination may reduce revenues, constitute an answer to the claim for "fair play, '59

"Nor is it the view of the Commission that a carrier cannot be held to discriminate against a community or territory which it does not reach by its own rails. If it participates in a joint rate from the territory affected and is in such position that it may either join in such rates or decline to do so, it is then liable for the discrimination which may result from its action in joining with the other carriers in the discriminatory rate or regulation.''60

The Commission formerly had no power to compel carriers to increase rates; so, when there was discrimination in rates between two communities, unless the carrier removed such

57 R. R. Com. of Nevada v. Southern Pac. Co., 21 I. C. C. 329, 366, quoted with approval in Topeka Traffe Assn. v. Alabama & V. Ry. Co., 27 I. C. C. 428, 436.

58 Union Pac. R. Co. v. Goodridge, 149 U. S. 680, 37 L. Ed. 896, 13 Sup. Ct. 970, quoted in Re Wichita Falls System Joint Coal Rates, 26 I. C. C. 215, 223.

59 Cardiff Coal Co. v. Chicago, M. & St. P. Ry. Co., 13 I. C. C. 460, 467.

60 Partridge & Sons v. Pennsylvania R. Co., 26 I. C. C. 484, 486, 487,

citing Indiana Steel & Wire Co. v. Chicago, R. I. & P. Ry. Co., 16 I. C. C. 155; Southern Furniture Mnfrs. Assn. v. Southern Ry. Co., 25 I. C. C. 379; Rates from the Walsenberg Coal Field, 26 I. C. C. 85. See also Chamber of Commerce of Ashburn, Ga. v. Georgia, S. & F. R. Co., 23 I. C. C. 140, and a summary of Commission cases cited pp. 148, 149, 150, and U. S. v. Ill. Cent. R. R. Co., 263 U. S. 515, 68 L. Ed. 417, 44 Sup. Ct. 189 and cases cited.

discrimination, the high rate must have been reduced. Under Transportation Act, 1920, the Commission is empowered to prescribe minimum rates under specified conditions. Whether or not a preference or advantage is undue or unreasonable within the meaning of the section is "primarily for the investigation and determination of the Interstate Commerce Commission and not for the Courts. The dominating purpose of the Statute was to secure conformity to the prescribed standards through the examination and appreciation of the complex facts of transportation by the body created for that purpose."62

§ 152. Differentials. A rate differential is a fixed difference in rates, so that as one rate is changed the other is similarly changed, thus maintaining the original difference. There are many rates differentially related. Where the difference is just, existing differentials are always sustained by the Commission. Differentials that are unreasonable are changed to make them reasonable.63 Where independent carriers served a common market differential adjustments, removing unlawful discrimination, could not be prescribed by the Commission prior to the Amendment of 1920,64 but now the Commission may initiate both minimum and maximum rates under certain conditions set out in the statute.

§ 153. Discrimination Against Traffic. The section prohibits "any undue or unreasonable preference or advantage to any particular description of traffic."

61 Rates Transportation of Fresh Meats & Packing House Products, 23 I C. C. 652, 655; Scott Paper Co. v. Pennsylvania R. Co., 26 I. C. C. 601,

603.

62 Simpson v. Shepard, 230 U. S. 352, 57 L. Ed. 1511, 33 Sup. Ct. 729, eiting Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350, 9 Ann. Cas. 1075; Baltimore & O. R. Co. v. United States, 215 U. S. 481, 54 L. Ed. 292, 30 Sup. Ct. 164; Robinson v. Baltimore & O. R. Co., 222 U. S. 506, 56 L. Ed. 288, 32 Sup. Ct. 114; United States v. Pac. & A. R. N. Co., 228

U. S. 87, 57 L. Ed. 742, 33 Sup. Ct. 443. Disadvantages unconnected with transportation should not be equalized by rates, Anson, Gilkey & Hurd Co. v. S. P. Co., 33 I. C. C. 332; Milling Logs in Transit, 40 I. C. C. 597, 600. In connection with this subject, see Pig Iron from Southern Points, 159 I. C. C. 671.

63 Memphis Freight Bureau v. St. L. I. M. & S. Ry. Co., 39 I. C. C. 224, 236.

64 Gallaway Coal Co. v. A. G. S. R. Co., 40 I. C. C. 311, 315, and cases cited.

In discussing classification, Section 84, ante, it has been shown that different commodities have been and may be classified or given a special commodity rating. The necessity and propriety of this is there shown. When, however, a particular "description of traffic" is classified, it must be without undue or unreasonable preference.

In determining the reasonableness of rates, comparisons may be made between commodities of like weight, bulk, value, etc., regardless of whether or not those commodities come in competition the one with the other.

§ 154. Same Subject-Competition Between Users of Related Rates. In determining whether or not particular descriptions of traffic are so related by the carrier as to violate the provisions quoted herein, it is material to determine whether or not the different commodities in any way compete. This principle has been applied by the Commission. As early as 1892 the Commission said:65 "In the absence of some competing relation between different articles of traffic, there would seem to be no opportunity, by means solely of the rates imposed upon them respectively, for that unjust discrimination which the law forbids. Disadvantage to the shipper of one product can hardly be predicated upon the charges for transporting another product, differing essentially in character from the former and widely dissimilar in the demands which it supplies. In such cases, the rates themselves are insufficient to convict the carrier of discrimination. The amount actually charged on one commodity may, however, be of great importance in determining whether the charge on another commodity is reasonable or otherwise, especially when both have numerous points of resemblance in respect to the cost and hazard of transportation."

The United States Circuit Court, the English Court and the Supreme Court as shown in the Party-Rate case (Section 150, ante) all recognized that without competition unlawful discrimination could not exist.

Illustrative of other applications of the principle are: Wall plaster and cement were sought to be compared, and it was said: "It is admitted that a charge of undue discrimination

65 Rice v. C. W. & B. R. Co., 3 I. C. R. 841, 849, 5 I. C. C. 193.