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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, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines; but this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business. [24 Stat. L. 380.]

UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE.

IN GENERAL.

Language and construction of English Traffic Act adopted. This section was taken substantially from the English Traffic Act, and hence the construction put upon that Act by the English courts must be regarded as incorporated in the Act. Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 284; McDonald v. Hovey, (1883).

110 U. S. 619. And see Hozier v. Caledonian R. Co., (1855) 1 R. & Can. T. Cas. 27, 17 Sess. Cas. 302; Jones v. Eastern Counties R. Co., (1858) 3 C. B. N. S. 718, 91 E. C. L. 718; Ransome v. Eastern Counties R. Co., (1857) 1 C. B. N. S. 437, 87 E. C. L. 437; Oxlade v. North Eastern R. Co., (1857) 1 C. B. N. S. 454, 87 E. C. L. 454; Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197.

Relative fairness and impartiality required. -The purpose of this section was to prevent partiality and discrimination between persons in the same relative situation, and in this respect it changes the common law which did not prohibit discrimination. Interstate Commerce Commission v. Baltimore, etc., R. Co., (1890) 43 Fed. Rep. 37; U. S. v. Delaware, etc., R. Co., (1889) 40 Fed. Rep. 101.

Reasonable charge may create unlawful preference. A charge may be perfectly reasonable under section 1 of the Act and may create an unreasonable preference or advantage under section 3 of the Act. Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263.

WHAT CONSTITUTES UNDUE PREFERENCE OR
ADVANTAGE.

Definition. The Act itself nowhere defines what constitutes an undue preference or advantage. Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197; Interstate Commerce Commission v. Alabama Midland R. Co., (C. C. A. 1896) 74 Fed. Rep. 715.

Unjust discrimination under section 3 consists in giving any undue or unreasonable preference or advantage to any particular shipper or subjecting him to any undue or 3 F. S. A.- 52

817

vnreasonable prejudice or disadvantage in any respect whatever. U. S. v. Delaware, etc., R. Co., (1889) 40 Fed. Rep. 101.

Preference or advantage not necessarily unlawful. The mere existence of a preference or advantage in a particular case is not enough to bring it within the prohibition of this section. Denaby Main Colliery Co. r. 97; Texas, etc., R. Co. v. Interstate ComManchester, etc., R. Co., (1885) 11 App. Cas. merce Commission, (1896) 162 U. S. 197; Interstate Commerce Commission v. Alabama Midland R. Co., (C. C. A. 1896) 74 Fed. Rep. 715.

This section does not prohibit all discrimination, but only such discrimination as is undue or unreasonable under the circumstances

of the case. Interstate Commerce Commission v. Texas, etc., R. Co., (1892) 52 Fed. Rep. 187; Oregon Short Line, etc., R. Co. v. Northern Pac. R. Co., (1892) 51 Fed. Rep. 465; Little Rock, etc., R. Co. v. St. Louis, etc., R. Co.. (1894) 59 Fed. Rep. 402; Oregon ShortLine, etc., R. Co. v. Northern Pac. R. Co., (C. C. A. 1894) 61 Fed. Rep. 158; Little Rock, etc., R. Co. v. St. Louis Southwestern R. Co., (C. C. A. 1894) 63 Fed. Rep. 775; Interstate Commerce Commission v. Alabama Midland R. Co., (1895) 69 Fed. Rep. 227; U. S. v. Norfolk, etc., R. Co., (1901) 109 Fed. Rep. 836. Substantially similar circumstances and conditions must exist in order to render a preference or advantage illegal. Cowan v. Bond, (1889) 39 Fed. Rep. 54.

A preference to be undue must be a preference of a person similarly circumstanced and bringing a similar profit to the company. Interstate Commerce Commission v. Baltimore, etc., R. Co., (1890) 43 Fed. Rep. 37.

Question of fact and not of law. -"Whether, in particular instances, there has been an undue or unreasonable prejudice or preference, or whether the circumstances and conditions of the carriage have been substantially similar or otherwise, are questions of fact, depending on the matters proved in each case." Interstate Commerce Commission r. Alabama Midland R. Co., (1897) 168 U. S. 170, (C. C. A. 1896) 74 Fed. Rep. 715; Denaby Main Colliery Co. v. Volume III.

Manchester, etc., R. Co., (1880) 3 R. & Can. T. Cas. 426; Phipps v. London, etc., R. Co., (1892) 2 Q. B. 229; Cincinnati, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 184; Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197; Palmer . London, etc., R. Co., (1866) L. R. 1 C. P. 593; Interstate Commerce Commission r. Louisville, etc., R. Co., (1896) 73 Fed. Rep.

409.

Whether a difference of twelve cents per hundred pounds between a local rate and the carrier's proportion of a through rate is an undue and unreasonable preference or advantage as against a local shipper is a question for the jury. U. S. v. Tozer, (1889) 39 Fed. Rep. 369

Criminality of unreasonable charge. A conviction for the violation of the "undue preference" clause of the Act cannot be sustained where the criminality of the Act is made to depend on whether the jury think a preference reasonable or unreasonable. To constitute a crime, the Act must be one the criminality of which the party is able to know in advance. Tozer v. U. S., (1892) 52 Fed. Rep. 917, 53 Am. & Eng. R. Cas. 14, quoting Chicago, etc., R. Co. v. Dey, (1888) 35 Fed. Rep. 866.

The burden of proof rests upon the party alleging the existence of an undue preference or advantage. Interstate Commerce Commission . Baltimore, etc., R. Co., (1890) 43 Fed. Rep. 37; Interstate Commerce Commission v. Louisville, etc., R. Co., (1896) 73 Fed. Rep. 409; Denaby Main Colliery Co. v. Manchester, etc., R. Co., (1885) 11 App. Cas. 97.

Circumstances to be considered. — Difference in rates, convenience of the public, the interests of the carrier, the relative volume of the traffic involved, its relative cost and profit to the carrier, the situation of the respective customers with respect to each other as competitive or otherwise, are all circumstances which must be considered in determining the existence or non-existence of an undue preference or advantage. Interstate Commerce Commission v. Baltimore, etc., R. Co., (1890) 43 Fed. Rep. 51, af ed (1892) 145 U. S. 284; Interstate Commerce Commission v. Louisville, etc., R. Co., (1896) 73 Fed. Rep. 409; Interstate Commerce Commission v. Southern R. Co., (1900) 105 Fed. Rep. 703. See Oxlade v. North Eastern R. Co., (1857) 1 C. B. N. S. 454, 87 E. C. L. 454.

Business considerations which would naturally affect the action of the carriers inependently of the Act are entitled to conIderation in determining the existence of an andue preference or advantage. Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197; Interstate Commerce Commission v. Alabama Midland R. Co., (C. C. A. 1896) 74 Fed. Rep. 715.

Mathematical calculation not the test.The question cannot be determined by a mere mathematical calculation. Phipps . London, etc., R. Co., (1892) 2 Q. B. 238, quoted with approval in Interstate Commerce Commission v. Louisville, etc., R. Co., (1896) 73 Fed. Rep. 409; Interstate Commerce Commission 17. Alabama Midland R. Co., (C. C. A. 1896) 74

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

144.

Mileage. Relative mileage is a circumstance to be considered in fixing rates, but it is not alone the test of undue preference or advantage. Interstate Commerce Commission v. Louisville, etc., R. Co., (1896) 73 Fed. Rep. 409, citing with approval Phipps v. London, etc., R. Co., (1892) 2 Q. B. 242.

Charges need not be fixed solely upon a mileage basis. Interstate Commerce Commission t. Louisville, etc., R. Co., (1896) 73 Fed. Rep. 409.

Differences in population and tonnage may justify what would otherwise be an unjust preference or advantage as between two cities or towns similarly situated. Detroit, etc., R. Co. v. Interstate Commerce Commission, (C. C. A. 1896) 74 Fed. Rep. 832.

Welfare of respective localities to be considered. - The welfare of the locality of delivery or consumption must be considered as well as that of the locality of production and shipment. Interstate Commerce Commission v. Alabama Midland R. Co., (1897) 168 U. S. 165, citing with approval Texas, etc., R. Co., v. Interstate Commerce Commission, (1896) 162 U. S. 197.

Joint through rates are not the standard by which to determine the legality of local rates of the same carriers. Tozer v. U. S., (1892) 52 Fed. Rep. 917, 53 Am. & Eng. R Cas. 14; Chicago, etc., R. Co. v. Osborne, (C. C. A. 1892) 52 Fed. Rep. 912; Allen v. Oregon R., etc., Co., (1899) 98 Fed. Rep. 17.

The Act does not expressly authorize the Sarate carriers to contract with reference to through routes and joint tariffs, because the carriers already had that authority. But sections 3 and 6 necessarily imply the recognition that that authority did exist and that it could be exercised after the passage of the Act, in the same manner and to the same extent as before. Gulf, etc., R. Co. v. Miami Steamship Co., (C. C. A. 1898) 86 Fed. Rep. 418.

The proportion in which freight earned by two connecting railroads under a joint tariif schedule is divided between them is a matter for their consideration alone, and a court cannot hold that the share received by one constitutes an unjust or discriminate rate. Allen v. Oregon R., etc., Co., (1899) 98 Fed. Rep. 16.

The making of a group rate to several points does not preclude a carrier from discriminating in other respects between points in the same group, if the circumstances and conditions otherwise justify such discriminations. Detroit, etc., R. Co. v. Interstate Commerce Commission, (1896) 43 U. S. App. 308.

Competition between rival carriers, existing at one point and not at another, must be considered in determining whether or not the carrier is giving one of such points an undue or unreasonable preference or advantage over the other. Interstate Commerce Commission v. Louisville, etc., R. Co., (1896) 73 Fed. Rep. 409; Texas, etc., R. Co. r. Interstate Commerce Commission, (1896) 162 U. S. 197; Interstate Commerce Commission . Alabama Midland R. Co., (1897) 168 U. S. 144, (C. C. A. 1896) 74 Fed. Rep. 715; Interstate Com

merce Commission r. Western, etc., R. Co., (C. C. A. 1899) 93 Fed. Rep. 83, affirming (1898) 88 Fed. Rep. 186; Phipps v. London, etc., R. Co., (1892) 2 Q. B. 242; Mansion House Assoc. r. London, etc., R. Co., (1895) 1 Q. B. 932; Denaby Main Colliery Co. v. Manchester, etc., R. Co., (1885) 11 App. Cas. 97; Interstate Commerce Commission v. Cincinnati, etc., R. Co., (1903) 124 Fed. Rep. 624; Interstate Commerce Commission Nashville, etc., R. Co., (C. C. A. 1903) 120 Fed. Rep. 934.

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The reason why competition must be considered is that a trader is as much entitled to the advantage of a situation where rival carriers are competing for his traffic, as another trader is entitled to the advantage of a situation nearer the market requiring a shorter haul. Interstate Commerce Commission v. Louisville, etc., R. Co., (1896) 73 Fed. Rep. 409; Interstate Commerce Commission 1. Baltimore, etc., R. Co., (1892) 145 U. S. 283; Ransome v. Eastern Counties R. Co., (1857) 1 C. B. N. S. 437, 87 E. C. L. 437.

The nature and extent of competition must be considered in determining whether a particular discrimination is thereby justified. Interstate Commerce Commission v. Western, etc., R. Co., (C. C. A. 1899) 93 Fed. Rep. 83; Interstate Commerce Commission v. Alabama Midland R. Co., (1897) 168 U. S. 167.

All competition, provided it possesses the attribute of producing a substantial and material effect upon traffic and rate making, is proper, under the statute, to be taken into consideration. The fact that the competition is wholly between carriers who are subject to the Act is not material. Interstate Commerce Commission r. Southern R. Co., (1900) 105 Fed. Rep. 704.

The fact that a railroad company has acquired the ownership of the only road which previously competed with its own for business at a certain point cannot affect the question whether its rates unjustly discriminate against such point in favor of another point where competition exists, where it aflirmatively appears that the rates to the noncompetitive point have not been increased since the purchase of the competing road. Interstate Commerce Commission v. Southern R. Co., (1902) 117 Fed. Rep. 741.

Potential water competition, although there is at the time but little actual competition, is a circumstance to be considered. Interstate Commerce Commission v. Alabama Milland R. Co., (C. C. A. 1856) 74 Fed. Rep. 715.

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Competition in ocean freights. In determining questions of the reasonableness of rates and of discrimination in regard to traffic originating in foreign countries, the courts may and should take into consideration as constituting dissimilar conditions, circumstances existing beyond the seaboard of the United States (such as competition by ocean freights) as well as conditions prevailing within the United States., Texas, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 197, cited and followed in Interstate Commerce Commission . Southern R. Co., (1900) 105 Fed. Rep. 703.

Conditions for benefit of carrier. Carriers may impose conditions for their own benefit, though such conditions may incidentally favor a particular class or locality. Interstate Commerce Commission v. Baltimore, etc., R. Co., (1890) 43 Fed. Rep. 37.

Self-preference not unlawful. Carriers may lawfully prefer themselves in their own business. Ilwaco R., etc., Co. r. Oregon Short Line, etc., R. Co., (1893) 57 Fed. Rep. 673, 15 U. S. App. 173; Little Rock, etc., R. Co. v. East Tennessee, etc., R. Co., (1891) 47 Fed. Rep. 771.

Carrier may protect itself against physical disadvantages. Detroit, etc., R. Co. v. Interstate Commerce Commission, (C. C. A. 1896) 74 Fed. Rep. 832, holding that the location of a carrier's station at a much greater distance from the centre of traffic than the stations of rival carriers will justify the carrier in furnishing free cartage at that point in order to obtain and preserve its traffic. This case was affirmed by the Supreme Court in an opinion confined to a consideration of section 4 of the Act, the questions arising under sections 2 and 3 having been withdrawn from consideration. See (1897) 167 U. S. 644.

Free cartage. -The furnishing of free cartage by a carrier at some point and not at others may or may not constitute an unlawful preference or advantage. It is not unlawful, if, under the existing circumstances, such discrimination is reasonable and necessary for the benefit of the carrier, and especially where there is no competition between the two points. Detroit, etc., R. Co. v. Interstate Commerce Commission, (1896) 74 Fed. Rep. 13, 43 U. S. App. 308, affirmed on other points in (1897) 167 U. S. 644.

"These English cases abundantly establish three propositions in relation to this subject: (1) That the collecting and delivery of goods is a separate and distinct business, notwithstanding the confusion to which we have adverted; (2) that the railroad companies, undertaking to do for themselves this separate business, cannot, by consolidating the compensation for each, avoid the restrictions that have been imposed upon them in respect of unlawful discriminations, and it is amply within the power of the railway commissions and the courts, according to the facts of each particular case, to separate the two, in order to prevent such an unlawful combination; (3) that, notwithstanding the separable and independent character of the two services, both, whether in the hands of the same or separate carriers, are subject to the rules and regulations prescribed by law to prevent unlawful discriminations." Detroit, etc., R. Co. v. Interstate Commerce Commission, (C. C. A. 1896) 74 Fed. Rep. 812, citing Pickfo 1 v. Grand Junction R. Co., (1842) 10 M. & W. 399; Parker v. Great Western R. Co., (1844) 7 M. & G. 253, 49 E. C. L. 253; Parker v. Great Western R. Co., (1856) 6 El. & Bl. 77, 88 E. C. L. 77; Baxendale v. North Devon R. Co., (1857) 3 C. B. N. S. 324, 91 E. C. L. 324; Baxendale v. Great Western R. Co., (1858) 5 C. B. N. S. 309, 336, 94 E. C. L. 309, 336; Garton v. Great Western R. Co., (1859) 5 C.

B. N. S. 669, 94 E. C. L. 669; Garton v. Bristol, etc., R. Co., (1859) 6 C. B. N. S. 639, 95 E. C. L. 639, (1861) 1 B. & S. 112, 101 E. C. L. 112; Pegler t. Monmouthshire R., etc., Co., (1861) 6 H. & N. 644; Baxendale v. Bristol, etc., R. Co., (1862) 11 C. B. N. S. 787, 103 E. C. L. 787; Baxendale v. Great Western R. Co., (1863) 14 C. B. N. S. 1, 108 E. C. L. 1, (1864) 16 C. B. N. S. 137, 111 E. C. L. 137; Palmer r. London, etc., R. Co., (1866) L. R. 1 C. P. 588, (1870) L. R. 6 C. P. 194; West v. London, etc., R. Co., (1870) L. R. 5 C. P. 622; Parkinson . Great Western R. Co., (1871) L. R. 6 C. P. 554; Evershed r. London, etc., R. Co., (1877) 2 Q. B. D. 254, 3 Q. B. D. 134; London, etc., R. Co. v. Evershed, (1878) 3 App. Cas. 1029; Manchester, etc., R. Co. v. Denaby Main Colliery Co., (1884) 13 Q. B. D. 674, 14 Q. B. D. 209; Denaby Main Colliery Co. v. Manchester, etc., R. Co., (1885) 11 App. Cas. 97; Liverpool Corn Trade Assoc. v. London, etc., R. Co., (1891) 1 Q. B. 120,

It cannot be said that a railroad company may not reasonably and without undue preference or advantage, or unlawful discrimination, collect and deliver, at its own expense, goods at one city and not at another, where the difference in population is as seventy thousand to six thousand and in traffic one million tons to fifty-five thousand tons. Detroit, etc., R. Co. v. Interstate Commerce Commission, (C. C. A. 1896) 74 Fed. Rep.

832.

Guaranty of arrival on time not an unlawful discrimination. - Foster v. Cleveland, etc., R. Co., (1893) 56 Fed. Rep. 434.

Discrimination in rates. - Discrimination in rates may constitute an unlawful preference or advantage under this section, as well as discrimination in facilities furnished. U. S. v. Tozer, (1889) 2 Int. Com. Rep. 422, citing Denaby Main Colliery Co. v. Manchester, etc., R. Co., (1880) 3 R. & Can. T. Cas. 426, (1885) 11 App. Cas. 97.

But it is not the purpose of the statute to prevent competition in rates between different points on different lines of road. Allen v. Oregon R., etc., Co., (1899) 98 Fed. Rep. 17. A contract by which a carrier undertakes to carry the lumber of a certain shipper to a point beyond the state at a stipulated rate, which is less than the lumber could be shipped for over the carrier's line without loss to the carrier, and therefore less than the carrier will give to others shipping lumber under the same conditions, is void under the Interstate Commerce Act making it unlawful for a carrier to give any undue or unreasonable preference or advantage to any particular person. Kizer . Texarkana, etc., R. Co., (1899) 66 Ark. 348.

Party-rate tickets not an undue preference or advantage. - Interstate Commerce Commission . Alabama Midland R. Co., (1897) 168 U. S. 144; Interstate Commerce Commission r. Baltimore, etc., R. Co., (1892) 145 U. S. 263, affirming (1890) 43 Fed. Rep. 37; Foster . Cleveland, etc., R. Co., (1893) 56 Fed. Rep. 434.

Passes. The giving of free passes to persons not enumerated in section 22 of the Act constitutes an illegal preference or advan

tage. In re Charge to Grand Jury, (1895) 66 Fed. Rep. 146.

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The subject of the 'preference' or 'prejudice' is transportation of either persons or property. The Act nowhere in terms prohibits the mere issuing of free tickets or free passes. A free ticket or a free pass not used is not transportation; it is not a preference or advantage to the holder, nor any prejudice or disadvantage to others." In re Huntington, (1895) 68 Fed. Rep. 882, citing Griffee 1. Burlington, etc., R. Co., (1888) 2 Int. Com. C. Rep. 301.

Lower joint through rates not a discrimination against local shippers. - Parsons v. Chicago, etc., R. Co., (C. C. A. 1894) 63 Fed. Rep. 903, citing Tozer v. U. S., (1892) 52 Fed. Rep. 917.

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Greater charge for shorter haul may constitute undue preference or advantage. Interstate Commerce Commission v. Western, etc., R. Co., (1898) 88 Fed. Rep. 186; Interstate Commerce Commission v. East Tennessee, etc., R. Co., (1898) 85 Fed. Rep. 107; Interstate Commerce Commission v. Western, etc., R. Co., (C. C. A. 1899) 93 Fed. Rep. 83.

Under the English Traffic Acts a provision substantially like the third section of the Interstate Commerce Act against undue preferences and advantages is made to serve substantially the same purpose as the fourth section of the American act with respect to long and short hauls. Detroit, etc., R. Co. v. Interstate Commerce Commission, (1896) 74 Fed. Rep. 803, 43 U. S. App. 308.

In Jones v. Eastern Counties R. Co., (1858) 3 C. B. N. S. 718, 91 E. C. L. 718, the court refused an injunction to compel a railway company to issue season tickets between Colchester and London upon the same terms as it issued them between Harwich 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 Harwich over those of Colchester.

The charging of a greater sum for a shorter than for a longer haul is specifically dealt with in the fourth section of the Act. (See infra.) If such a charge is not illegal under the fourth section it cannot be held illegal under the third section. Interstate Commerce Commission r. Western, etc., R. Co., (1898) 88 Fed. Rep. 194; Interstate Commerce Commission . Cincinnati, etc., R. Co., (1893) 56 Fed. Rep. 925.

The same circumstances which will justify a greater charge for a shorter than a longer haul under section 4, will prevent such rats from constituting an illegal preference or advantage under section 3. Interstate Commerce Commission r. Nashville, etc., R. Co., (C. C. A. 1903) 120 Fed. Rep. 934; East Tennessee, etc., R. Co. v. Interstate Commerce Commission, (1901) 181 U. S. 1.

"In a supposed case when, in the first instance, upon an issue as to a violation of the fourth section of the Act, it is conceded or established that the rates charged to the shorter distance point are just and reasonable in and of themselves, and it is also shown

that the lesser rate charged for the longer haul is not wholly unremunerative and has been forced upon the carriers by competition at the longer distance point, it must result that a discrimination springing alone from a disparity in rates cannot be held, in legal effect, to be the voluntary act of the defendant carriers, and as a consequence the provisions of the third section of the Act forbidding the making or giving of an undue or unreasonable preference or advantage will not apply." East Tennessee, etc., R. Co. v. Interstate Commerce Commission, (1901) 181 U. S. 1.

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Switching facilities and service. - A common carrier subject to the Act is guilty of giving an unlawful preference or advantage where it denies switch connections and service to one person, place, locality, or kind of traffic, and affords such facilities and services to others similarly situated. Interstate Stock-Yards Co. r. Indianapolis Union R. Co., (1900) 99 Fed. Rep. 473.

Pro rata allotment of cars. It is the duty of a railroad company, when its supply of coal ears is short, to prorate the supply on hand, without unjust discrimination, among all the shippers of coal. U. S. v. Norfolk, etc., R. Co., (1901) 109 Fed. Rep. 831.

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Discrimination in favor of car company. It is not unlawful for a carrier to transport stock in cars of a particular car company at a less rate than is charged for stock shipped in the cars of another company, where the ears of the former company are adapted for use both as stock cars and as coal cars while the cars of the latter company are not so adapted, as in such case the circumstances

and conditions are not substantially similar. U. S. r. Delaware, etc., R. Co., (1889) 40 Fed. Rep. 101.

Permitting shipper to use his own cars may amount to an unlawful preference or advantage. U. S. r. Delaware, etc., R. Co., (1889) 40 Fed. Rep. 101. See also U. S. v. Norfolk, etc., R. Co., (1901) 109 Fed. Rep. 831.

Requiring prepayment of charges from some persons and not from others does not amount to giving an unjust or unreasonable preference or advantage. Little Rock, etc., R. Co. v. St. Louis Southwestern R. Co., (C. C. A. 1894) 63 Fed. Rep. 775, affirming 59 Fed. Rep. 400.

Compressing cotton in transit. Where a carrier gives a through rate on cotton it is not a violation of sections 2 and 3 to give the same through rate with the privilege of having the cotton stopped at an intermediate point where it is compressed at the expense of the carrier, where the rate is open to all alike. Cowan v. Bond, (1889) 39 Fed. Rep. 54. Discrimination in delivery at stock yards. It is the duty of a carrier of live stock to provide reasonable facilities for the unloading and care of such stock; and where it has done so, either by building stock yards of its own or by contract with a stock-yards company, its refusal to deliver stock to other stock yards in the same city is not an unlawful discrimination. Central Stock-Yards Co. v. Louisville, etc., R. Co., (C. C. A. 1902) 118 Fed. Rep. 113, citing Covington Stock Yards Co. v. Keith, (1891) 139 U. S. 128; Butchers', etc., Stock-Yards Co. v. Louisville, etc., R. Co., (1895) 67 Fed. Rep. 41, 31 U. S. App. 252.

FACILITIES FOR INTERCHANGE OF TRAFFIC.

Construction and operation of clause. - In the construction of the clause requiring carriers to afford equal and reasonable facilities for the interchange of traffic between connecting lines, English authorities carry little weight, as the provisions of the English statute are not similar. Oregon Short-Line, etc., R. Co. v. Northern Pac. R. Co., (C. C. A. 1894) 61 Fed. Rep. 158, citing Little Rock, etc., R. Co., v. St. Louis, etc., R. Co., (1890) 41 Fed. Rep. 559, and Kentucky, etc., Bridge Co. v. Louisville, etc., R. Co., (1889) 37 Fed. Rep. 567.

Three carriers involved. The discrimination prohibited must be between two or more carriers other than the offending carrier, as it is not unlawful for a carrier to prefer itself as against any connecting line. Thwann R., etc., Co. r. Oregon Short Line, etc.. R. Co., (C. C. A. 1893) 57 Fed. Rep. 673; Little Rock, etc.. R. Co. r. East Tennessee, etc., R. Co., (1891) 47 Fed. Rep. 771, 49 Am. & Eng. R. Cas. 23.

The fact that one company owns an interest in the stock of another is no excuse for discriminating in favor of such road as against other roads. New York, etc., R. Co. v. New York, etc., R. Co., (1891) 3 Int. Com. Rep. 542, 4 Int. Com. C. Rep. 702. Distinguished in Little Rock, etc., R. Co. v. East Tennessee, etc., R. Co., (1891) 47 Fed. Rep. 771.

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Discrimination under first paragraph. The first paragraph of the above third section prohibiting unjust preference or advantages applies to connecting carriers as well as to other persons and localities, Oregon

Short-Line, etc., R. Co. v. Northern Pac. R.
Co., (1892) 51 Fed. Rep. 465.

But an unjust preference or advantage in respect to localities does not constitute an unlawful discrimination against a connecting carrier serving such localities. Oregon Short Line, etc., R. Co. v. Northern Pac. R. Co.. (C. C. A. 1894) 61 Fed. Rep. 158.

Reasonable and proper facilities. Only reasonable and proper facilities need be furnished. Oregon Short-Line, etc., R. Co. v. Northern Pac. R. Co., (C. C. A. 1894) 61 Fed. Rep. 158.

In determining what are reasonable and proper facilities, the interests of the road required to furnish them must be considered. Oregon Short-Line, etc., R. Co. v. Northern Pac. R. Co., (C. C. A. 1894) 61 Fed. Rep. 158.

An interstate carrier is not required to treat all its connecting carriers in precisely the same manner without reference to its own interests. Little Rock, etc., R. Co. v. St. Louis Southwestern R. Co., (C. C. A. 1894) 63 Fed. Rep. 775.

The term " facilities" does not include car

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