the United States of competent jurisdiction, it follows that the compensation of common carriers will hereafter be largely regulated by the decision of a jury; and that practically the rates, fares, and charges for the transportation of passengers and property will be placed by the Inter-State Commerce Act in the hands of that uncertain and capricious body.

The question, whether a charge for service made by a common carrier is reasonable and just, can arise in two ways:

I. If the sum claimed for the service by the carrier has not been paid, if it be not reasonable and just, it cannot be recovered from the shipper.

II. If such amount has been paid, the shipper may recover the excess back from the carrier, either in an action at law under the 8th and 9th sections of the Act, or by appeal to the Railroad Commissioners under the 9th and 15th sections thereof. But the injured party cannot invoke or pursue both remedies. (Sec. 9.)

III. In addition to these civil remedies, the common carrier may be prosecuted, for taking unreasonable and unjust charges, by indictment as for a misdemeanor. (Sec. 10.)

CHAPTER IV.

THE ACTS WHICH THE COMMON CARRIER IS PRO

HIBITED FROM DOING BY THE INTER-STATE
COMMERCE BILL.

HE Inter-State Commerce Act enumerates

TH

a great many acts on the part of common carriers which are specifically prohibited. We shall proceed to enumerate them in their order, with such comments as each section suggests.

Unjust Discrimination.

First The second section declares that if any common carrier subject to the provisions of the 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 rendered, 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 CONTEMPORANE

OUS 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 DISCRIMINATION, which is hereby prohibited and declared to be unlawful.

I. A literal reading of this section of the Act would seem to make it apply to services rendered by a carrier before the passage of the Act; because the language is: "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," etc., it shall be guilty of unjust discrimination. But the obvious intent and spirit of the law were to make it apply to cases occurring after it went into effect.

II. The offence of "unjust discrimination is made up of two distinct branches,—viz., first, the mere charging or demanding a greater or less compensation for any service rendered, or to be rendered, than that charged or demanded

from other persons for doing a like and contemporaneous service, constitutes the offence; second, the act of collecting or receiving the compensation is also a misdemeanor.

III. The question, as to what is the "charging," "demanding," "collecting," or "receiving” of a greater or less compensation than that charged, demanded, collected, or received 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," is one for the courts or for the Railroad Commission, as the case may be, to determine. We consider it more fully in connection with the "fourth" section of the Act.

The language is ambiguous and indecisive, and this section of the law was the subject of much criticism in Congress when the Bill was discussed. (See debates of Congress, January, 1887.)

But be that as it may, the evident object of the framers of the law was to seek to establish a uniform and unvarying rate of compensation for services of the same or a similar description rendered in the transportation of passengers or property.

IV. It will be observed, however, that the language of this second section does not apply to the receiving, delivering, storage, or handling of property.

V. The remedies of the party injured under the second section are the same as those furnished for a violation of the first section, and are to be found by reference to Sections 8, 9, and 10 of the law.

Undue Preference; Unreasonable Prejudice.

Second: The third section provides that it shall be unlawful for any common carrier subject to the provisions of this Act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

Every common carrier subject to the provisions of this Act shall, according to their respective powers, afford all reasonable, proper,