The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-11-27
Special Contract Cannot Excuse
Freight Privileges.
Opinion by Chief Justice CLARK in Hilto1
Lumber Company vs. A. c. L. Makes
Stringent Rule Against Discrim-
nations by Railroads.

out of all the logs hauled in by it,
the 40c which is deducted in favor
of those who will give it that monop-
oily. But why should it discriminate
by rates upon logs which when turn
ed into lumber are sold in Whining
ton, or shipped by sea, or shipped by
a competing route? 1t costs no more
to bring in the plaintiffs logs than
the logs for those whose hauling only
$2.10 was charged. The shipment of
logs TO Wilmington is one transaction:
the shipment of lumber out is anoth-
er. The defendant cannot charge the
plaintiff higher on logs because it will
not agree to ship its lumber by the de-
PENDANTS line. 1t is no answer to say
that If the plaintiff will come into
the defendants terms it will get the
same discount. The defendant might
as well say, if you will carry your
logs to a saw mill in which the rail-
road company is a large owner, you
will get the 10 per cent reduction in
freight on your logs, and there is no
discrimination, for the same offer is
open to you as to others.
If the plaintiff, like others, was
shipping logs to Wilmington with the
voluntary intention of shipping by the
defendants road, say To New York
then certainly there would be no dis
elimination. But the plaintiff does
not wish to ship to New York over the
defendants line. and the defendant
proposes ito put the screws to the
plaintiff" and make it do so whether
IT wishes TO do SO or not, and if the
plaintiff does not do so, the defendant
says the plaintiff cannot be treated
as Well as others as to the rates for
hauling its logs, but must pay nearly
one-hfth (19 per cent? higher rates
on its logs. That is the very point
at issue. Hauling its logs to Whining
ton is the only service the plaintiff
seeks at the defendants hands Why
ss4ould 1t pay higher for that service
IMAM those who agree to carry their
logs to the defendants mill or to ship
out their lumber by the defendant S
road? . 40
Discrimination is more dangerous
power than high rates--if the latter
is charged impartially to all. Hence
the statutes of Congress and of the
state, while leaving the fixing of rates
in the hands of commissions, have di-
fectly and strictly forbidden under
penalties, any discrimination. Com
mons carriers are fixed for public use.
They exercise branch of the public
franchise. They can condemn rights
Oh way solely because the land lis
taken for a public use.' They are
subject to governmental supervision
and to the reduction or regulation of
their charges by the legislature di-
rectly or by commissioners appointed
oy lts authority. Mum V. Illinois,
"a Y. ). l13 and citations to same 9
Roses Notes 21-55. In all the great
countries of the world except Eng
gland and this country, the railroads
are largely or altogether owned and
operated directly by the government.
as was formerly the case in North
Carolina. In all countries alike it is
recognized that it is of vital import
ance that corporations exercising such
pubic use must be absolutely impair
tlal and equal in their charges for
the same service.
All the service the plaintiff asks of
the defendant is to haul it's logs to its
saw mill in Wilmington. For this it
charges the plaintiff $3.50; it charges
others $2.10, i e., 10 per cent. higher
to the plaintiff than to others for
exactly the same service. 1t costs the
defendant no more to render that SER
vice to the plaintiff than to render
the same service to others. 1t must
charge all alike.
Could the defendant discriminate on
Shipment of logs to Wilmington-fo a
consideration of a subsequent benefit
70 Itself by obtaining a monopoly of
shipment of lumber out of Wilmington
1T could seriously damage the busi-
ness and prosperity of that city.
At that point are steamships
and sailing lines and other
railroads, and this competition
making the town a distributing center
Is the source of it's prosperity. If the
terms upon which the defendant will
haul logs into Wilmington are that IL
must haul the lumber out, then Will
mlngton ceases as to that business to
be competing point. The same dis
crimination could be made (if this
were allowable) in freight on cotton
or corn or rosin and other articles
carried to Wilmington to be manu-
factured or put into other forms for
use. DISCRIMINATING rates as in this
case could be charged on the raw pro-
duct which would permit of the manu-
factured article, cloths. yarn. meal
WhlSkey, turpentine and the like, be-
ing shipped out only over the defend
ants line. This is to place the pros
perlty of Wilmington, and also of the
producers of raw material contiguous
to that city along the lines of any of
the defendants roads or branches, in
the control of the defendant.
Inc point here presented has been
o1ten decided and always, certainly at
least in recent years. against the pow
er Claimed by the defendant. In Bax-
endale V. Railroad, "a E. G. l.. 30S, af-
ter an elaborate argument, it was held
Dy a very strong court as to this
point: 'It is not a legitimate ground
Tor giving a preference to one of the
customers of a railroad company that
ne engages to employ other lines OF
the company for the carriage of
traffic distant from and unconnected
with the goods in question; and it is
undue and unreasonable to charge
more or less for the same service ac-
cording as the customer of the railway
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