The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1904-12-02

Custoincr VI the railway thinks proper
or not to bind himself TO employ the
company in other and totally distinct
business.
In Menacho VS. Ward, q Fed. Rep.
529. where h court was enlightened
by n argument of Frederick Coudert
and Jas. G. Carter on opposing sides.
II was heio that a coEmmon carrier can
not charge a higher rate against ship
pers who refuse TO p~atronize IT exclu-
sively-' President Hadley. in his Pail
road Transportation, "a valuable work.
oy no means unfavorable to railroads.
says: "A difference in rates not basel
upon n corresponding difference in
cost, constitutes a case of discrimina-
ton" In railroad VS.. Goodr4dge, l49
q. 3. $50, il is said: 1T is no proper
business of a railroad company as a
common carrier to foster particular en-
terprises or to buiid up new industries:
but deriving its franchises from the
legislature and depending upon the viii
OF the people for its very existense. il
Is bound to deal fairly with the public.
20 extend them reasonable facilities for
the transportation of their persons and
property, and to put all its patrons on
lam absolute equality" This would not
be the case If a Patron shipping logs to
Wilmington must pay higher for thai
Service than n who subsequently ships
lumber.
Among the numerous cases condemn
ing discrimination, and holding that
freight paid in excess of that charged
others for the same service can be re-
covered back, are Hays VS.. Penn. Co. u
Fed. 800 and cases cited in note thereto:
Handy VS.. Railroad, supra, a spicy
opinion by a Justly indignant judge. II
twas held that charging from New Or
leans to San Francisco a lower rate
or goods shipped to New Orleans from
London than upon the same goods ship
ped from New York to New Orleans
was an unjust discrimination and illa-
gal. Interstate Commerce Commission
VS.. Railroad, 81 Fed. Rep. 1877. 1t is not
| the question Of profit to the carrier, 50
the court holds, in attracting shipments
which would mot otherwise come to il,
but the injustice of charging differing
lrates for the same service, and the
court quotes with approval the English
decisions, Harris VS.. Railroad, 3. c.. B.
On. 81 693; E~vershed VS.. Railroad, ?
@ B. Div. 254. that preferences given
to shippers to induce them not to divert
traffic from the carrier or to induce
them to transfer traffic which other
wise would go to another carrier, are
unlawful and cannot be justified upon
the ground of profit to the carrier al
lowing them" To similar purport.
| WlSttl VS. ~. -. ISdllOdu, W gu Oto.
! r. r. VS.. Wilson, 1872 Ind. SIT, and many
others. Even when the discrimination
is based or a larger quantity beiZy
shipped, it is illegal, when the smaller
quantity, as in car oad lots, is no more
to handle in proportion to the quantity,
Kingsley VS.. Railroad, 81 Fed. Rep. 1S1,
approving Hays VS.. Penn. Co., supra.
The vice in the discrimination here
shown is tw1ofold. o. 1t necessarily
tends, if allowable, to build up defend
amt railroad and break down competi-
tive carriers, which is forbidden by pub
lie policy. DIN Traffic case, III, u. S. at
p. sos. CD. The condition upon which
the right to lower the rate was given
was secret, not written on the face CT
the schedule which, as reported to the
| railroad commission and printed for
for public information, was 81. 80. A Sc
cret rebate is prohibited by statute and
by all the decisions of the courts, yet
this eba of 40c. not o to the
Plaintiff has amounted to $500 In five
months time.
The testimony of railroad officials in
the report to congress of the ndustr al
llCommisSion, volume 4, p. 273 and vol
ume 9, p. 131, shows that the method Of
discrimination reSorted to are many
and that manufacturers especially can
be made Or destroyed at the Will OF rail-
road unless there is the most
absolute and exact equality to an IN the
same charge for the same service. Vol.
9 DID 2S7, 2S9, report of Industrial Com
nilsson. Interstate Commerce Commits
sion VS.. Railroad, 12S U. S. SO, is one
instance Of an ingenious discrimination.
. The present case is another. DnScrlm-
iration is protean in the divers forms
it assumes. The argument In all coun-
tries in favor of governmental owner
ship of railroads is based upon the
deadly effect of discrimination in rates
under private ownership, and in the diff
ficulty in preventing it rather than
upon higher rates. The condition upon
which private ownership of railroads
\ can or will be maintained in England
and in this country (Which alone retain
it) is the strict and effective enforce
ment of equality in charge to all for the
same service, under the same conditions
and at the same coSt-aS is required by
[ the statutes, state and federal.
The defendant cannot justify under
: what is known as Milling in Transit
Those are cases where freight is ship
2 ped a long distance and the carrier will
5 at mis- own cost, defray the expense oi
its change in form en- route, because Oh
the easier handling in the more compact
shape. as, for example, cowan VS.. Bond
SO Fed. Rep. 81, where a Tarilroad com
pany receiving cotton in Louisiana fol
shipment to mills in New England had
1T compressed en- route at VickSburg a
it's own expense, charging the shippe,
mo- more than if it had carried the un-
compressed cotton all the way, the
same privileges being open to all ship
pers. That was no analogy In this cas-
!, Iw'here the plaintiff is shipping logs t.
a mill in Wilmington, and is charged
nearly one-fffth more freight than 9th.
. ers unless it will agree to ship its UNI
Der out of Wilmington over the defend
J ants road. Among other cases in poinr
I are Wichita Lumber case, 9 1. C. c. 500
I at Pr. 572, 579, $50; the Tap Lines" cases
10 1. c. C. 1913; Packet Company VS.
: IERailroad.
But independent Of any decision, out
statute (Which nearfy copies the Eng
fish Traffic Act" and the Uniret
{ States "Inter-States Commerce Act" il
this and many other respects) is tot
explicit to be misconstructed. The CTR
: poration Commission Act" Laws 1898
!. chapter 164, provides (~section 49, tina
l lif any common carrier shall charge O