same line, the same distance, under the same circumstances of carriage, are compelled to pay different prices therefor.

It may be that the phrase “under substantially similar circumstances and conditions," found in section 4 of the act, and where the matter of the long and short haul is considered, may have a broader meaning or a wider reach than the same phrase found in section 2. It will be time enough to determine that question when it is presented. For this case it is enough to hold that that phrase, as found in section 2, refers to the matter of carriage and does not include competition.

At the term following the decision of the Wight case, Interstate Commerce Commission v. Alabama Midland Railway Co., 168 U. S., 144, was disposed of. In this was involved the right of the carrier to charge less for the long than for the short haul, and the court had occasion to consider and apply the words "similar circumstances and conditions," as used in the fourth section. It was held that these words in that section did not apply simply to the circumstances of the carriage, but included competition; that, although the circumstances of the carriage itself were precisely the same, the fourth section was not violated if competition existed at the more distant point which did not obtain at the intermediate point, since that competition rendered dissimilar the circumstances and conditions.

To avoid any seeming inconsistency in giving to these words one meaning in the second section and an entirely different meaning in the fourth section, the court in the Alabama Midland case stated its position upon this point at considerable length, as follows:

To prevent misapprehension, it should be stated that the conclusion to which we are led by these cases, that, in applying the provisions of the third and fourth sections of the act, which make it unlawful for common carriers to make or give any undue or unreasonable preference or advantage to any particular person or locality, or to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, competition which affects rates is one of the matters to be considered, is not applicable to the second section of the act.

As we have shown in the recent case of Wight v. United States, 167 U. S., 512, the purpose of the second section is to enforce equality between shippers over the same line, and to prohibit any rebate or other device by which two shippers, shipping over the same line, the same distance, under the same circumstances of carriage, are compelled to pay different prices therefor; and we there held that the phrase "under substantially similar circumstances and conditions," as used In the second section, refers to the matter of carriage, and does not include competition between rival routes.

This view is not open to the criticism that different meanings are attributed to the same words when found in different sections of the act; for what we hold is that, as the purposes of the several sections are different, the phrase under consideration must be read, in the second section, as restricted to the case of shippers over the same road, thus leaving no room for the operation of competi12 I. C. C. Rep.

tion, but that in the other sections, which cover the entire tract of interstate and foreign commerce, a meaning must be given to the phrase wide enough to include all the facts that have a legitimate bearing on the situation, among which we find the fact of competition when it affects rates.

In order further to guard against any misapprehension of the scope of our decision it may be well to observe that we do not hold that the mere fact of competition, no matter what its character or extent, necessarily relieves the carrier from the restraints of the third and fourth sections, but only that these sections are not so stringent and imperative as to exclude in all cases the matter of competition from consideration in determining the questions of "undue or unreasonable preference or advantage," or what are "substantially similar circumstances and conditions." The competition may in some cases be such as, having due regard to the interests of the public and of the carrier, ought justly to have effect upon the rates, and in such cases there is no absolute rule which prevents the commission or the courts from taking that matter into consideration.

Here, then, we have two cases decided at substantially the same time-one necessarily holding that the words "circumstances and conditions" in the second section refer only to the carriage itself; the other holding that those words in the fourth section may be extended beyond the carriage, but expressly reaffirming the doctrine of the Wight case, that they must, in the second section, be confined to the transportation alone, and can not be made to include competitive and other considerations. So far as we can ascertain this position of the Supreme Court has never been in any degree departed from by it.

It is urged that United States v. Chicago & Northwestern Ry., 127 Fed. Rep., 785, is an authority to the contrary which ought to be controlling. That case was this:

The Chicago & Northwestern Ry. had in effect a party rate applicable to theatrical and amusement companies. The United States Government claimed the benefit of this rate. It transported over the line of the railway company certain parties of troops, more than 10 in number, that being the minimum number to which the party rate applied, and insisted that in making settlement for the transportation of these troops it should be allowed the same rate per mile fixed by the party rate schedule of the railway company. The court below held otherwise, and the circuit court of appeals affirmed that judgment. It held that the circumstances and conditions under which the troops were transported for the Government were not the same as those under which theatrical and other amusement companies were moved by the railway company, noting the following differences:

1. The party rate ticket is limited, whereas the Government requires a ticket of unlimited service.

2. The Government does not pay in advance for its ticket, but only settles after a considerable period of time and often after much annoyance and inconvenience and sometimes actual deduction.

3. Many amusement companies and similar organizations could not travel if obliged to pay the regular rate of fare. The giving of these reduced fares stimulates this kind of business and adds to the revenues of the railways without any corresponding increase in the cost of operation.

4. While these tickets are only sold from point to point on the line of a particular railway, it is reasonably certain that the company will buy more than the one ticket in going from place to place.

5. The traveling of amusement companies stimulates other kinds of travel. The performance of a great singer at some point upon the line of railway might induce hundreds of other persons to buy tickets to the same point, while the movement of 10 soldiers would have no such effect.

6. The Government is not in any way in competition with any other members of the public in the movement of its troops and hence there can be no unjust discrimination.

It is evident that the first of these distinctions may properly have reference to the carriage of the passenger, since it is generally recognized that there is a difference in cost between a limited and an unlimited service. It is possible that the payment of cash in advance might amount to a difference in the movement itself, although we do not express that opinion. It follows, therefore, that the circuit court of appeals might have decided the particular case before it as it did without also deciding that party rate tickets need not be open to all members of the public who were willing to receive, pay for, and use those tickets upon the same terms and under the same conditions.

It is clearly apparent from a reading of the whole opinion that those facts mainly relied upon by the court as creating dissimilarity of circumstance and condition were of a character which the Supreme Court of the United States has expressly declared can not be considered for that purpose under section 2. The court quotes, with approval, the following language from the opinion of Sage, district judge, delivered in disposing of the original party rate case in the circuit court:

Again, the testimony establishes that party rate tickets secure patronage that yields large revenues to the respondent, and that the withdrawal of those tickets would almost entirely destroy that patronage, for it appears that the rate is as high as can be made without putting it beyond the reach of those who are the main purchasers. Are all these considerations to be left out of the account in determining whether there has been "like and contemporaneous service" "under substantially similar circumstances and conditions?" Does it depend solely upon whether party rate passengers and those holding single tickets occupy the same cars, have the same accommodations, and are traveling from the same point to the same destination? Is that the full meaning of similar

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circumstances and conditions?" The answer, which the question itself seems to suggest, is that the phrase has a much larger and more comprehensive meaning, else Congress could not consistently have recognized mileage or excursion or commutation tickets, for all these trespass upon the narrow ground on which the contrary view rests. To give the act its proper interpretation, the phrase must be held to include circumstances and conditions affecting the business interests of the carrier and of its patrons, or, in other words, circumstances and conditions of a commercial character.

When these words were written, and indeed when the party rate case was decided by the Supreme Court, no distinction had been made between the application of the words "circumstances and conditions" to the fourth and second sections, nor between the undue preference of the third section and the discrimination of the second section. Since then it has been emphatically determined that facts of this character can not be relied upon to justify a difference in charge under section 2. Since they were manifestly used for that purpose by the circuit court of appeals in the Chicago & Northwestern case, we do not think the obiter dicta in that opinion can be regarded as authoritative, even though the exact case presented to the court may have been correctly decided.

It may be noted that the decisions of the English courts are of the same purport. Section 2 of our own act is modeled upon section 90 of the English Railways Clauses Consolidation Act of 1845, commonly known as the Equality Clause, which provides, in substance, that the same charge shall be made to all for the carriage of traffic of the same description over the same line, in the same direction, and under the same circumstances. It has been determined that the "circumstances" referred to must relate to the carriage itself, and that facts extraneous to that can not be considered.

The first important case was that of Evershed v. London & Northwestern Ry. Co., 3 App. Ca. 1029, in which the facts closely resembled those of our own Wight case. Evershed was a brewer at Burton, whose brewery was not connected with any line of railway. Three other breweries were located in the same town and connected by siding with the tracks of the Midland Railway, which delivered freight into their establishments without charge and made also an allowance for the furnishing of terminal and storage facilities by them. The tracks or the defendant railway were not connected with any of these breweries.

For the purpose of obtaining a share of the business of the breweries located upon the tracks of the Midland Railway the defendant carted the freight of those breweries free and made the same allowance on account of storage facilities which was made by the Midland Company. Both the defendant and the Midland Company charged the plaintiff for the cartage of his freight.

The court held that since the service performed by the defendant for the plaintiff and for his competitors was identical the charge for that service must be the same and that the practice of the defendant, above stated, was unlawful.

Even more striking is the case of Denaby Main Colliery Co. v. Manchester, Sheffield & Lincolnshire Ry. Co., 11 App. Ca., 97.

The defendant railway was engaged in the transportation of coal from the South Yorkshire field to Grimsby, upon the seacoast, and the plaintiff was a coal producer and dealer shipping his commodity via this line between these points. Coal was transported by the defendant to Grimsby both for land sale and for sea shipment, and the rate open to the public seems to have been somewhat less in case of that intended for sea carriage than with that for land sale. One Banister, who was a competitor of the plaintiff at Grimsby, was allowed a reduction from the rate for water shipment in the two following cases:

Upon coal sold by him to the Hamburg-American Steamship Company for its own bunker use and for transportation to and sale by it in the West Indies he was granted a rebate of 8 d. per ton. The case showed that this was for the purpose of enabling him to sell this coal to that company in competition with other coals; that without the rebate he could not have engaged in this business, and that, indeed, even with it he had been forced to withdraw from the business before the bringing of suit by the plaintiff.

Upon coal shipped by him to certain ports south of Harwich he was allowed a rebate of 6 d. per ton. This was by virtue of a contract that he should provide the vessels and other necessary capital for the purpose of developing a trade in this coal in these towns, where previously it had not been sold.

The plaintiff had never requested of the defendant, and would not in fact have used, a rate for either of these purposes.

Coal for land sale was delivered by the defendant at Grimsby to the plaintiff and to most other shippers upon team tracks in its own yards; but Banister and one other dealer had provided coal yards of their own with storage and unloading facilities, and their coal was run by the defendants into these yards. It was found that the defendant could handle coal more cheaply when delivery was made to Banister in his coal yard than when it was delivered to the plaintiff upon team track. Banister was allowed a rebate on account of all coal delivered into his yard for land sale.

The court held that the rebates allowed Banister with respect to coal sold the Hamburg-American Steamship Company and with respect to that shipped to points south of Harwich were illegal, for the reason that the facts in consideration of which these concessions