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Act, in whole or in part, as may tend to pre press Co. 1. Seibert, (1890) 44 Fed. Rep. 310; vent the proper enforcement of the legislative U. S. v. Morsman, (1890) 42 Fed. Rep. 448. purpose." Van Patten 1. Chicago, etc., R. Bridge companies. A bridge company Co., (1897) 81 Fed. Rep. 547.

owning no cars and making no charge for Act in part declaratory of the common law. transporting freight but merely charging toll

In many of its features the Interstate for transferring cars of railway companies Commerce Act has been held to be simply over the bridge is not subject to the Act. declaratory of the pre-existing common law, Kentucky, etc., Bridge Co. 1. Louisville, etc., its office to that extent being to make such R. Co., (1889) 37 Fed. Rep. 507. pre-existing law applicable to a commerce Stock yards companies. — A stock yards which otherwise would be free. U. S. v. Hanley, company not engaged in transportation is (1896) 71 Fed. Rep. 673, citing Interstate not subject to the Act. Cotting 1. Kansas Commerce Commission 1. Baltimore, etc., R. City Stock-Yards Co., (1897) 82 Fed. Rep. Co., (1892) 145 U. S. 263.

839. This Act of Congress, in so far as it in Transportation wholly within one state hibits carriers from the imposition of unjust does not fall within the scope of the Act. and unreasonable rates, is an express adop Interstate Commerce Commission v. Brimson, tion by the national legislature of the prin (1894) 154 U. S. 457; Cincinnati, etc., R. Co. ciples of the common law on this topic.” Tift r. Interstate Commerce Commission, (1896) 1. Southern R. Co., (1903) 123 Fed. Rep. 792. 162 U. S. 184.

Consistent with Anti-trust Act. — The The mere fact that goods are intended for above Act to regulate commerce is not in an ultimate destination beyond the state does consistent with the Anti-trust Act of July 2, not subject.the initial carrier to the opera1890, as it does not confer upon competing

tion of the Act where he receives, transports, railroad companies power to enter into a and delivers such goods wholly within the contract in restraint of trade and commerce. one state and has nothing to do with their L'. S. v. Trans-Missouri Freight Assoc., (1897) transport beyond the state. Er p. Koehler, 166 U. S. 290.

(1887) 30 Fed. Rep. 869; Ft. Worth, etc., R. Effect on state statutes. — State statutes Co. v. Whitehead, (1894) 6 Tex. Civ. App. 595; regulating the same matters as are regulated New Jersey Fruit Exch. v. Central R. Co., by the federal statute are void so far as they (1888) 2 Int. Com. C. Rep. 142. affect interstate commerce. Houston, etc., R. The fact that the goods began their tran. Co. v. Peters, (1897) 15 Tex. Civ. App. 515. sit at a point outside of the state does not For a full discussion and illustration of this alone render their carriage by the carrier proposition, see Am. and Eng. Encyc. of Law within the state subject to the Act. Ft. (2d ed.), vol. 17, p. 34, title Interstate Com Worth, etc., R. Co. 1. Whitehead, (1894) 6 merce.

Tex. Civ. App. 595. Carriers subject to Act. -- Only railway Common control, management, or arrangecarriers are included in the Act. U. S. v.

ment. — A railroad company ope

ting beMorsman, (1890) 42 Fed. Rep. 448.

tween two points in the same state which The Act is not applicable to independent carries goods from one of its termini to the carriers by water. Er p. Koehler, (1887) 30 other without any understanding or arrangeFed. Rep. 869.

ment that it would become a link in a Ocean carriers engaged in transportation through line of transportation between between foreign ports and ports of entry are points in different states is not engaged in not subject to the provisions of the Act. interstate commerce so as to subject the comTexas, etc., R. Co. 1. Interstate Commerce pany to the operation of the Act merely beCommission, (1896) 162 U. S. 197.

cause freight carried began its journey at a Where railway company by contract with point in another state and the initial carrier a bridge company acquires the right to use a undertook to ship it to its ultimate destinabridge for the trains of the railway company, tion. Ft. Worth, etc., R. Co. v. Whitehead, the railway company must be considered as (1894) 6 Tex. Civ. App. 595. the owner or operator of the bridge for the Connecting carriers whose lines form a contime being as to all freight transported by tinuous line of transportation between two such company over the bridge, and as to such states are not subject to the Act where each traffic the railway and not the bridge com is operated under a separate and distinct conpany is the common carrier and subject to trol, each making its own rates and each the Act. Kentucky, etc., Bridge Co. 1. Louis liable only for the carriage and delivery of ville, etc., R. Co., (1889) 37 Fed. Rep. 567. the goods at the end of its own route. Er p.

Transfer and switching companies. Koehler, (1887) 30 Fed. Rep. 869, holding that Transfer and switching companies are not to render a railway and a vessel operated as subject to the Act. Kentucky, etc., Bridge connecting carriers subject to the Act they Co. 1. Louisville, etc., R. Co., (1889) 37 Fed. must be operated and used under a common Rep. 567.

control to which each is alike subject and by Express carriers. — Express companies not which rates are prescribed and bills of lading operating railway lines are not subject to the given for the carriage of goods over both Act. Southern Indiana Express Co. . U. S. portions of the route as one. See also Ft. Express Co., (1898) 88 Fed. Rep. 659, affirm Worth, etc., R. Co. v. Whitehead, (1894) 6 ing (C. C. A. 1899) 92 Fed. Rep. 1022; U. S. Tex. Civ. App. 595. v. Morsman, (1890) 42 Fed. Rep. 448.

Where there is no agreement on the part A railroad company conducting an express of the last connecting carrier for any such business is subject to the Act. Pacific Ex joint tariff as implies a reduced rate to its

local stations, but, on the contrary, such com expert witnesses; the effect of the rates pany collects and retains its entire local charged on the growth and prosperity of the iaies on all freight shipped to its local sta city; the cost of transportation as compared tions, over its own lines by connecting car with the rates charged, and the rates in force riers, there is no such arrangement for a at numerous other cities, where the circumcontinuous carriage or shipment existing be stances are as nearly similar as may be to tween such company and its connections as those prevailing at such city. Interstate to bring the rates which are charged to said Commerce Commission 1. Southern R. Co., local stations within the first section of the (1902) 117 Fed. Rep. 741. Act to regulate commerce. Interstate Com The interests of the carrier, the shipper, merce Commission 1. Cincinnati, etc., R. Co., and the public must all be considered. In(1893) 56 Fed. Rep. 925, citing Chicago, etc., terstate Commerce Commission r. Cincinnati, R. Co. 1. Osborne, (1892) 52 Fed. Rep. 912, 10 etc., R. Co., (1897) 167 U. S. 511; Covington, U. S. App. 430.

etc., Turnpike Road Co. 1. Sandford, (1896) The fact that a railroad lies wholly within 164 U. S. 578; Texas, etc., R. Co. v. Interone state does not exempt it from the obliga state Commerce Commission, (1896) 162 U. tions imposed by the Interstate Commerce S. 197. Act, if the transportation over it is part of Failure of the carrier to secure a profit is a shipment from one state to another, or to not conclusive that the tariff of rates is unor from a foreign country. Augusta South just and unreasonable. Reagan 1. Farmers' ern R. Co. v. Wrightsville, etc., R. Co., (1896) L. & T. Co., (1894) 154 U. S. 362. 74 Fed. Rep. 522.

Reasonableness a question of fact. -- Texas, A railroad wholly within a state which etc., R. Co. 1. Interstate Commerce Commisenters into arrangements with connecting sion, (1896) 162 U. S. 197; Cincinnati, etc., R. carriers for the carriage of interstate freights Co. v. Interstate Commerce Commission, becomes subject to the operation of the Act (1896) 162 U. S. 184. and the control of the commission, and can A finding of fact by the commission as to not limit that control in respect to certain the reasonableness of the rate, which has points on its road and exclude other points been approved by the Circuit Court, will not by requesting the connecting carriers not to usually be reviewed by the Supreme Court. fix any rates for that part of the transporta Cincinnati, etc., R. Co. . Interstate Comtion within the state to certain points. Cin merce Commission, (1896) 162 U. S. 184. cinnati, etc., R. Co. 1. Interstate Commerce “ The question of reasonableness of the rate Commission, (1896) 162 V. S. 184, affirming charged for transportation by a railroad com(1893) 56 Fed. Rep. 925; Louisville, etc., R. pany is peculiarly a question for judicial inCo. 1. Behlmer, (1900) 175 U. S. 618.

vestigation and decision." Tift 1. Southern Railroads operating wholly within R. Co., (1903) 123 Fed. Rep. 795, citing Chistate cannot be compelled to enter into a cago, etc., R. Co. 1. Minnesota, (1890) 134 U. common control, management, or arrange S. 418; U. S. 1. Missouri Pac. R. Co., (1894) ment such as will subject them to the opera 05 Fed. Rep. 903; Interstate Commerce Comtion of the Act. Chicago, etc., R. Co. v. Os mission 1". Western, etc., R. Co., (1898) 88 borne, (1892) 10 U. S. App. 430, distinguished Fed. Rep. 186. in Cincinnati, etc., R. Co. v. Interstate Com Rates unreasonably low.— Rates may be merce ('ommission, (1896) 162 U. S. 184. unreasonable because too low as well as be

Participation in through rates and through cause too high. Interstate Commerce Combills of lading renders a carrier whose lines mission 1. Cincinnati, etc., R. Co., (1897) 167 are wholly within one state subject to the U. S. 511. operation of the Act with respect to goods But the carrier may reduce its rates as far from other states. Cincinnati, etc., R. Co. t. as it pleases below what is reasonable and a Interstate Commerce Commission, (1896) 162 fair compensation for the services rendered, U. S. 184, affirming (1893) 56 Fed. Rep. 925, without violating the Act; and such reduction and distinguishing Chicago, etc., R. Co. v. compels no change by its competitor or any Osborne, (C. C. A, 1892) 52 Fed. Rep. 912. other company. Chicago, etc., R. Co. r. Os

This rule applies to a terminal or belt line borne, (C. C. A. 1892) 52 Fed. Rep. 914. in or around a city, and it is immaterial that Comparison of rates. — The particular rate the common arrangement or control for a con may be compared with the rate charged elsetinuous shipment is imposed upon such line where for a similar service in determining by local statute instead of voluntary agree whether or not such rate is reasonable and ment with connecting lines. Interstate Stock just. Interstate Commerce Commission 1. Yards Co. 1. Indianapolis Union R. Co., East Tennessee, etc., R. Co., (1898) 85 Fed. (1900) 99 Fed. Rep. 472.

Rep. 107. Just and reasonable rates. - In determin But such other rates are merely evidence ing whether a particular rate is just and rea of reasonableness and are not conclusive that sonable all the cireumstances affecting the a different rate is either unreasonable or unwelfare of the carrier, the producer, and the just. Interstate Commerce Commission 0. consumer must be considered. Interstate Louisville, etc., R. Co., (1896) 73 Fed. Rep. Commerce Commission v. Alabama Midland 409. R. Co., (C. C. A. 1896) 74 Fed. Rep. 715; In The rates at competitive points may be terstate Commerce Commission V. Southern compared in determining what are reasonable R. Co., (1900) 105 Fed. Rep. 703.

rates at noncompetitive points. Van Patten The greatest weight should be given to the 1. Chicago, etc., R. Co., (1897) 81 Fed. Rep. following considerations: the opinions of 545.

one

Evidence merely tending to show that a rate is too high as compared with the rate to other points is insufficient to sustain a linding that the former rate is unjust and unreasonable in itself. Interstate Commerce Commission v. Nashville, etc., R. Co., (C. C. A. 1903) 120 Fed. Rep. 934.

The fact that a joint through rate over the entire length of the joint line is less than the rate to intermediate points is insufficient to show that the intermediate rate is unjust or unreasonable. Allen v. Oregon R., etc., Co., (1899) 98 Fed. Rep. 17.

Equality of rates the object sought. — Interstate Commerce Commission v. East Tennessee, etc., R. Co., (1898) 85 Fed. Rep. 107.

Party-rate tickets for the transportation of several persons may be issued for a less proportionate rate than individual tickets without rendering the individual rate unjust or unreasonable. Interstate Commerce Commission v. Alabama Midland R, Co., (1897) 168 U. S. 165, citing Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263, which affirmed (1890) 43 Fed. Rep. 37.

Lower summer rates not unlawful where such rates are necessary to keep cars employed and are offered all persons on equal terms. Interstate Commerce Commission v. Louisville, etc., R. Co., (1896) 73 Fed. Rep. 409.

Long and short haul rates. — The charge for a longer haul may be considered in determining whether or not the short haul rate

is reasonable and just. Interstate Commerce Commission v. East Tennessee, etc., R. Co., (1898) 85 Fed. Rep. 107.

But a higher short haul rate is not necessarily únreasonable. Interstate Commerce Commission v. Western, etc., R. Co., (1898) 88 Fed. Rep. 186.

The average cost of carriage upon the entire system is an insufficient basis for concluding that the rate charged upon a particular portion of the system is unjust or unreasonable. Interstate Commerce Commission v. Lehigh Valley R. Co., (1896) 74 Fed. Rep. 784.

rden of proof. — The burden of showing that a particular rate is unreasonable or unjust is upon the complainant. Van Patten 1. Chicago, etc., R. Co., (1897) 81 Fed. Rep. 545; Interstate Commerce Commission Nashville, etc., R. Co., (C. C. A. 1903) 120 Fed. Rep. 935.

Effect of published schedule rate. The rate adopted, printed, and posted as quired by section 6 is prima facie a reasonable rate. Kinnavey 1. Terminal R. Assoc., (1897) 81 Fed. Rep. 802.

And it has been held that in an action for damages for charging unreasonable rates, the published schedule rate is conclusively taken a reasonable rate, and if no

more is charged there can be no recovery. Van Patten v. Chicago, etc., R. Co., (1897) 81 Fed. Rep. 545, holding that courts and juries cannot resort to any other standard.

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SEC. 2. [Special rates, rebates, etc., prohibited.] 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 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 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 discrimination, which is hereby prohibited and declared to be unlawful. [24 Stat. L. 379.]

v. Western, etc., R. Co., (1898) 88 Fed. Rep.

186; Kinnavey v. Terminal R. Assoc., (1897) Section modeled on English Act. This 81 Fed. Rep. 804; Raleigh, etc., R. Co. v. section is modeled on section 90, known as Swanson, (1897) 102 Ga. 758. the “equality clause” of the English Act of Common law changed by section. -- This 1845. Texas, etc., R. Co. v. Interstate section changes the common law which did Commerce Commission, (1896) 162 U. S. 197. not forbid discrimination 'n rates. U. S.

Purpose is to prevent discrimination be 1. Delaware, etc., R. Co., (1889) 40 F d. Rep. tween shippers. - The purpose of the second 101; Interstate Commerce Commission v. section of the act is to enforce equality be Baltimore, etc., R. Co., (1892) 145 U. S. tween shippers over the same line, and to 263; Lundquist 1. Grand Trunk Western R. prohibit any rebate or other device by which Co., (1901) 121 Fed. Rep. 915. two shippers, shipping over the same line, Discrimination between localities the same distance, under the same circum facilities furnished not included. Interstate stances of carriage, are compelled to pay Commerce Commission 1. Western, etc., R. different prices therefor. Interstate Com Co., (1898) 88 Fed. Rep. 186. merce Commission v. Alabama Midland R. Unjust discrimination is prohibited by both Co., (1897) 168 U. S. 144; Texas, etc., R. Co. sections 2 and 3. The former relates to unv. Interstate Commerce Commission, (1896) just discrimination in rates; the latter is 162 U. S. 197; Wight v. U. S., (1897) 167 comprehensive enough standing alone to inU. 6. 512; Interstate Commerce Commission clude every form of unjust discrimination

or in

not only in rates but also in the conveniences of their similitude in those features named and facilities supplied to shippers in any of by the act, should have fared alike.” U. S. the details of the carrying service. U. S. 1. 1. Hanley, (1896) 71 Fed. Rep. 674. Delaware, etc., R. Co., (1889) 40 Fed. Rep. Reasonable charges may constitute unjust 101.

discrimination. — A charge may be perfectly One act may violate each of first four sec reasonable under section 1 of the Act, and tions. — See Interstate Commerce Commis yet reate an unjust discrimination under sion 1. Western, etc., R. Co., (C. C. A. 1899) section 2. Interstate Commerce Commission 93 Fed. Rep. 83.

t'. Baltimore, etc., R. Co., (1892) 145 U. S. Act invalidates existing contracts which 263. See also Great Western R. Co. v. Sutcreate unjust discriminations in contraven ton, (1868) L. R. 4 H. L. 226, decided under tion of its terms. Southern Wire Co. v. St. a similar provision in the English statute. Louis Bridge, etc., R. Co., (1889) 38 Mo. The reasonableness or justice of the charge App. 191, quoting Rothschild 1. Wabash R. which is the subject of section 1 of the Act is Co., (1884) 15 Mo. App. 242, reviewing not necessarily involved in determining the Christie l'. Missouri Pac. R. Co., (1881) 94 unjust discrimination which is the subjectMo. 453; Bullard 1. Northern Pac. R. Co., matter of section 2. The charge made for (1890) 10 Mont. 168, 45 Am. & Eng. R. transporting freight may be entirely reasonCas. 234; Fitzgerald V. Fitzgerald, ptr., able, and the plaintiff may have no occasion ('onstr. Co., (1894) 41 Neb. 376; Fitzgerald to complain of the intrinsic value of the ser1'. Grand Trunk R. Co., (1890) 63 Vt. 169; vices rendered, but may be injuriously affected Kentucky, etc., Bridge Co. 1. Louisville, etc., by advantages given his competitors in rates R. Co., (1888) 34 Am. & Eng. R. Cas. 653. of freight. A shipper of interstate com

But existing contracts are not invalidated merce is generally a dealer in such commerce; to such an extent as to relieve the carrier of and it is as important for him, in the race liability for goods carried thereunder. Mer of competition, that his competitors get no chants' Cotton Press, etc., Co. v. Insurance advantage in freight rates, as it is that he Co. of North America, (1894) 151 U. S. 368, himself pay only reasonable charges for his (distinguishing Interstate Commerce Commis own shipments. The second section of the act sion v. Baltimore, etc., R. Co., (1892) 145 aims to secure equality in rates of all shippers U. S. 263); Insurance Cos. v. Carrier Cos., similarly situated, and any favoritism in this (1892) 91 Tenn. 537. See also Pond-Decker particular is declared to be unlawful.” KinLumber Co. v. Spencer, (C. C. A. 1898) 86 navey v. Terminal R. Assoc., (1897) 81 Fed. Fed. Rep. 846.

Rep. 804. Contract in violation of statute void. — A Only unjust and unreasonable discriminaspecial contract for a discriminating rate tions illegal. - Interstate Commerce Commisin violation of the statute is void as to both sion 1. Baltimore, etc., R. Co., (1892) 145 parties, and an action founded thereon can U. S. 263, affirming, (1890) 43 Fed. Rep. 37; not be maintained. Church 1. Minneapolis, Texas, etc., R. Co. v. Interstate Commerce etc., R. Co., (1901) 14 S.-Dak. 443.

Commission, (1896) 162 U. S. 197; Kentucky, Discrimination between connecting carriers. etc., Bridge Co. 4. Louisville, etc., R. Co.,

Discrimination in rates between connect. (1889) 37 Fed. Rep. 567. ing railways is illegal where the circum But under the language of this section it stances and conditions are substantially would seem that any discrimination would similar. Augusta Southern R. Co. v. Wrights be unjust and illegal where the circumville, etc., R. Co., (1896) 74 Fed. Rep. 5-2. stances and conditions are substantially

Mistake in naming rate. — Where the similar. agent of a connecting carrier, by mistake, Discriminations not unlawful unless cir. has given to a shipper an unusually low rate cumstances and conditions are similar. on a shipment of a special and unusual Interstate Commerce Commission V. Balticharacter, and the initial carrier, without more, etc., R. Co., (1892) 145 U. S. 263, knowledge of such rate, breaks its contract affirming, (1890) 43 Fed. Rep. 37; Cowan v. of carriage by sending the goods over a dif Bond, (1889) 39 Fed. Rep. 54; U. S. v. ferent road from that prescribed in the bills Tozer, (1889) 39 Fed. Rep. 369; U. S. v. of lading, so that the shipper is compelled to Egan, (1891) 47 Fed. Rep. 112; Atchison, pay a much higher rate of freight, the initial etc., R. Co. v. Denver, etc., R. Co., (1883) carrier cannot escape liability for damages 110 U. S. 667; Gulf, etc., R. Co. v. Miami on the ground that the rate given was in Steamship Co., (C. C. A. 1898) 86 Fed. Rep. violation of the interstate commerce law. 407; Interstate Commerce Commission 0. Pond-Decker Lumber Co. v. Spencer, (C. C. Alabama Midland R. Co., (C. C. A. 1896) A. 1898) 86 Fed. Rep. 846.

74 Fed. Rep. 715, affirmed (1897) 168 U. S.

144; Texas, etc., R. Co. v. Interstate ComWHAT CONSTITUTES UNJUST DISCRIMINATION

merce Commission, (1896) 162 U. S. 197. UNDER SECTION 2.

“Equality and uniformity of rate, disUnjust discrimination defined.—U. S. v. associated from considerations of the time, Delaware, etc., R. Co., (1889) 40 Fed. Rep. kind, and circumstances of the transaction, 101; Interstate Commerce Commission is, therefore, not the object aimed at. The Baltimore, etc., R. Co., (1892) 145 U. S. 281. object of the statute is to prevent one shipper

"A conception of discrimination necessarily from getting the advantage over his cominvolves at least two instances of shipment, petitor in the matter of rates only where they one of which, in the matter of rates, has fared both make substantially a like offering to the better than the other, though both, by reason

carrier. There can, therefore, be no convic

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tion under this section until it is alleged and Interests of shippers and carriers both conproven that an advantage in rates has been sidered. Interstate Commerce Commission given by the carrier to one person over that v. Alabama Midland R. Co., (C. C. A. 1896 ) obtained by another, where both persons, 74 Fed. Rep. 715; Texas, etc., R. Co. v. Interfairly considered, are upon an equality in the state Commerce Commission, (1896) 162 U. time, kind, and circumstances of their S. 197. offering.” U. S. v. Hanley, (1896) 71 Fed. Adequate consideration for reduced rates Rep. 673.

prevents such rates from constituting unjust "All goods offered for shipment at a certain discrimination. Interstate Commerce Compoint must be carried at the established rate mission v. Baltimore, etc., R. Co., (1892) 145 for such goods from such point, regardless of U. S. 281; Interstate Commerce Commisthe place where they originated.” Bigbee, etc., sion v. Texas, etc., R. Co., (1892) 52 Fed. Rivers Packet Co. v. Mobile, etc., R. Co., Rep. 187. (1893) 60 Fed. Rep. 545, wherein the court Difference in cost justifies difference in said: “ There is a dissimilarity in the cir rates. — Interstate Commerce Commission v. cumstance that one lot of cotton came from Texas, etc., R. Co., (1892) 52 Fed. Rep. 187, one point and the other lot from another citing U. S. v. Delaware, etc., R. Co., (1889) point. But this is not a substantial dis 40 Fed. Rep. 101. similarity such as is contemplated by the law, Competition cannot be considered. - The and it is not every dissimilarity of circum phrase under substantially similar circumstance or condition that justifies a dissimi

stances and conditions" as used in this seclarity of rates. “That some dissimilar con tion of the act refers to the matter of carditions justify dissimilarity in rates is true. riage, and does not include competition beThat remote dissimilarities of condition tween rival routes. Interstate Commerce justify any dissimilarities which the carrier Commission V. Alabama Midland R. Co., chooses to make is not true.' Texas, etc., R. (1897) 168 U. S. 144, following Wight v. Co. v.

Interstate Commerce Commission, U. S., (1897) 167 U. S. 512; Interstate Com(1893) 20 U. S. App. 1, 57 Fed. Rep. 955. merce Commission v. Texas, etc., R. Co., The circumstances and conditions to be con (1892) 52 Fed. Rep. 187. sidered are those which bear upon the trans There are many expressions in earlier cases portation by the particular carrier, and under which seem to indicate a contrary view. See which such transportation is conducted. Interstate Commerce Commission v. LouisThey must have direct bearing upon the ville, etc., R. Co., (1896) 73 Fed. Rep. 409; traffic over the line on which the discrimina Texas, etc., R. Co., v. Interstate Commerce tion is made.” Bigbee, etc., Rivers Packet Commission, (1896) 162 U. S. 197, reversing Co. v. Mobile, etc., R. Co., (1893) 60 Fed. (C. C. A. 1893) 57 Fed. Rep. 948, 20 U. S. Rep. 547.

App. 1; Phipps v. London, etc., R. Co., (1892) Inequality of conditions justifies inequality 2 Q. B. 229, 50 Am, & Eng. R. Cas. 494 ; of rates. - Interstate Commerce Commission Interstate Commerce Commission V. Baltil'. Louisville, etc., R. Co., (1896) 73 Fed. more, etc., R. Co., (1892) 145 U. S. 263, Rep. 409; Interstate Commerce Commission affirming (1890) 43 Fed. Rep. 37; Interstate v. Baltimore, etc., R. Co., (1892) 145 U. S. Commerce Commission v. Texas, etc., R. Co., 281, affirming, (1890) 43 Fed. Rep. 51. See (C. C. A. 1893) 57 Fed. Rep. 948, (1892) 52 also cases cited supra.

Fed. Rep. 187. The carrier must determine in the first in But in determining whether the circumstance whether or not the conditions are so stances are substantially similar within the substantially similar as to preclude a differ meaning of the third and fourth sections of ence in rates. Interstate Commerce Commis the act relating to undue preference and adsion v. Alabama Midland R. Co., (1897) 168 vantages and long and short haul rates, comU. S. 169.

petition between rival carriers is a

very The determination of the carrier is subject important consideration. See notes to sec. to revision by the commission and courts. tions 3 and 4 of the act, infra. Louisville, etc., R. Co. v. Behlmer, (1900) 175 Discrimination in rates in favor of parU. S. 648.

ticular shippers cannot be justified solely The ultimate power of determining the mat upon the ground of diverting traffic from rival ter of discriminating rates rests with the carriers. Interstate Commerce Commission courts. Interstate Commerce Commission v. v. Texas, etc., R. Co., (1892) 52 Fed. Rep. East Tennessee, etc., R. Co., (1898) 85 Fed. 189; Harris v. Cockermouth, etc., R. Co., Rep. 107; Interstate Commerce Commission v. (1858) 3 C. B. N. S. 693, 91 E. C. L. 693; Alabama Midland R. Co., (1895) 69 Fed. Evershed v. London, etc., R. Co., (1877) 2 Rep. 227.

Q. B. D. 254. Compare Hays v. PennsylSimilarity of circumstances a question of vania Co., (1882) 12 Fed. Rep. 309; Burlingfact. - Detroit, etc., R. Co. v. Interstate Com ton, etc., R. Co. 1. Northwestern Fuel Co., merce Commission, (1896) 74 Fed. Rep. 803, (1887) 31 Fed. 652. 43 U. S. App. 308, citing Palmer 1". London, Meaning of “like kind of traffic." - The etc., R. Co., (1866) L. R. 1 C. P. 588; Phipps phrase "like kind of traffic” means traffic v. London, etc., R. Co., (1892) 2 Q. B. 229. similar in character and cost of transporta

Circumstances considered in fixing rates. tion but not necessarily identically similar. See generally Harris v. Cockermouth, etc., New York Board of Trade, etc., 1. PennsylR. Co., (1858) 1 R. & Can. T. Cas. 97, 3 C. B. vania R. Co., (1891) 3 Int. Com. Rep. 417, N. S. 693, 91 E. C. L. 693 (decided under 4 Int. Com. C. Rep. 447. English Traffic Acts).

Difference in amount of traffic does not

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