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of traffic under similar circumstances and conditions to those offered by defendants to owners of goods, as distinguished from forwarding agents representing several owners. Under the circumstances, and in view of the liability incurred by the carrier to the various owners, the court held that the rule adopted by defendants as to less than carload rates was not unreasonable.

The court (KOHLSAAT, J.), observed that the issues presented a pioneer case, and the court could derive little aid from authoritative sources, but upon the facts presented the court was clearly of opinion that the contentions of complainants could not be sustained.

Ib.

§ 3. Unreasonable Preference or Advantage. 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.

Duty to Connecting Lines. 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.

Object and Scope of Section 3.- Section 2 was intended to protect the shipper who had been compelled to pay more to the carrier than another shipper was compelled to pay for a similar service. The carrier can favor one shipper at the expense of another. It can, in like manner, favor one locality at the expense of another. An individual shipper may be able to secure secretly from the carrier a lower rate than is paid by his rival for the same service. The carrier may also, from self-interest or other motive, favor a particular locality by making a lower iate to a particular point than is given to another point located, it may be, at a greater distance on the carrier's line. The merchants in the favored locality would thus be enabled to undersell their neighbors doing business in the locality discriminated against.

Carriers may also discriminate among themselves. They may furnish rates and facilities to one carrier which they deny to a competitor. They may discriminate not only in rates and charges, but also in the use of facilities for interchange of traffic.

The apparent object of section 3 was to protect a locality or community from being discriminated against, and also to protect a carrier from similar injustice, not only in the making of joint or through rates with competing lines, but in securing equal facilities over connecting lines.

The protection afforded by section 2 relates solely to moneys exacted unjustly from the individual shipper in excess of moneys received from another shipper for a like service. The protection afforded by section 3 relates to any unjust advantage or preference given to an individual, or to a locality, or with regard to any particular description of traffic, or to any unjust discrimination by one carrier against another carrier as to rates, charges, or facilities in operating connecting lines, or in making joint rates over connecting lines.

The appropriate remedy under section 2 is an action at law by the shipper to recover money damages. The government of the United States may now, under the Elkins Act of February 19, 1903, procure an injunction to restrain violations of section 2. The appropriate remedy under section 3 would seem to be in equity by injunction, or in case of discrimination among

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carriers by writ of mandamus to compel the offending carrier to forward the freight. A shipper or carrier injured by a violation of section 3 may, under certain circumstances, seek his remedy at law for damages. But in the majority of cases the remedy for the grievances for a violation of section 3 is by way of injunctive relief.

Discrimination against a Locality Remedy by Injunction. -- Section 3 forbids the carrier to discriminate or give an unreasonable preference or advantage to a particular locality. A carrier sought to build up a seaport on its own line (Pensacola) at the expense of another port (Savannah) on a rival line. It may be conceded that this may be done to a reasonable extent. A carrier may so adjust its rates as to promote its legitimate interests. But it cannot for the purpose of building up a rival seaport on its own line adopt rates excessive in themselves unduly preferential to its own port (Pensacola) and unduly prejudicial to another port (Savannah). The rate on naval stores made by defendants between Pensacola and Savannah was found to be not only excessive but prohibitory. The action of defendants resulted not only in giving Pensacola an inferior market, a monopoly, but gave the entire control of that market to one dealer in naval stores. The court enforced by injunction the order of the Commission forbidding the rates complained of, on the ground that they were in themselves unlawful, in violation of section 1, and discriminated against a locality in violation of section 3. Interstate Com. Co. v. Louisville, 118 Fed. Rep. 613 (July, 1902, Cir. Ct. So. Dist. Ga.).

The Savannah Bureau of Freight and Transportation and nine other complainants in Florida on the line of the Pensacola and Atlantic division of the Louisville & Nashville complained to the Commission that the joint-tariff rates made by defendants en shipments now moving easterly from stations on said division from Pensacola to Savannah were per se unreasonable, and that they were relatively unjust and unreasonable when compared with the rates charged by defendants from the same stations moving westerly to Pensacola, Mobile, and New Orleans, and resulted not only in unjust discrimination against complainants, but gave an undue and unreasonable advantage to

the localities of Pensacola, Mobile, and New Orleans to the disadvantage and prejudice of Savannah and localities on said division between Savannah and Pensacola. It was alleged that defendant's object was to divert traffic from Savannah and deflect it to New Orleans by preventing the movement of cotton eastward from Pensacola to Savannah and intermediate stations, and cause it to move in the opposite direction toward New Orleans. With this end in view defendants advanced the rate on cotton shipped from Pensacola to Savannah from $2.75 to $3.30 per bale (this advance was made while the case was pending before the Commission). The rate from Pensacola to New Orleans was $2.50 per bale. When the investigation was begun the New Orleans rate was $2.50 per bale, and the Savannah rate was $2.75 per bale, a difference of twenty-five cents in favor of New Orleans and Mobile. When the suit was instituted to enforce the order of the Commission, the New Orleans rate was $2.50 and the Savannah rate was $3.30, a difference of eighty cents in favor of New Orleans. There was no change of conditions, and the sole reason assigned for the higher rate was to increase the revenues of defendants. The average distances were as follows: From Pensacola to Savannah, 339 miles; to New Orleans, 326 miles. Average distance to Savannah, 13 miles greater than to New Orleans, yet the Savannah rate exceeded the New Orleans rate eighty cents per bale. Held, that defendants were not justified in making the Savannah rates. That they were unlawful in violation of section 1, and prejudicial against the localities of Savannah and intermediate stations between Savannah and Pensacola in violation of section 3. Ib.

Discriminations or preferences in rates may be justified to safeguard the interests of the public. The counter-proposition is true that they cannot be justified when they injure the interests of the public. Ib.

See also Tift v. Southern Railroad, 123 Fed. Rep. 789 (July, 1903, Cir. Ct. So. Dist. Ga.).

A shipper in Portland, Ore., filed a bill for an injunction under the Interstate Commerce Act, charging the carrier with fixing rates which gave an undue preference in favor of San Francisco and its merchants over Portland and its mer

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chants, and alleging that the rates charged from Portland were unjust and unreasonable. The court dismissed the bill on the ground that it was not alleged that the rates from Portland were not unjust and unreasonable in themselves, could not become so by comparison with other joint rates from an opposite direction, and from a different and competing point on the road of a different carrier who was not a party to the suit. Allen & Lewis v. Oregon Railroad, 98 Fed. Rep. 16.

Discrimination against Carrier Remedy at Law. Plaintiff, a carrier by water, sued defendant railroad at law for damages, alleging unjust discrimination by defendant against plaintiff in charging plaintiff $1.25 per bale for transporting cotton from Mobile to New Orleans, while for the same service defendant charged other shippers and the general public eighty cents per bale, which was known as "the Mobile rate." Defendant in its answer claimed dissimilarity of circumstances and conditions, in that plaintiff was a carrier and transported its goods from Demopolis, Ala., to Mobile, for the purpose of re-shipping it from Mobile to New Orleans. That defendant had an agreement with the Louisville and Nashville and other carriers to make the rate from Demopolis to New Orleans $1.25 per bale, and that as plaintiff brought its cotton by water from Demopolis to Mobile for re-shipment at that point defendant was bound to charge it the rate from Demopolis to New Orleans instead of the rate from Mobile. It appeared that plaintiff had no railroad from Demopolis to Mobile, but carried its goods between those points in packet-boats.

Plaintiff demurred to the answer, and the court sustained the demurrer, holding that defendant was not justified in charging plaintiff more to ship its goods from Mobile to New Orleans than it charged other shippers or carriers. That defendant, by refusing to ship for plaintiff at that rate, discriminated against plaintiff unlawfully, and that the conditions of dissimilarity created by defendant's consent or connivance was not a defense to the action. Bigbee Packet Co. v. Mobile Railroad, 60 Fed. Rep. 545 (December 30, 1893, Cir. Ct. So. Dist. Ala.).

See also Cutting v. Florida Railway & Navigation Co., 30 Fed. Rep. 663 (April, 1887, Cir. Ct. No. Dist. Fla.).