[3] Who may complain.

The Interst. Com. Act, § 3, forbidding discrimination between persons and localities, is available only to the persons or localities discriminated against, and a connecting railroad cannot complain of another railroad because the latter discriminates against localities in compelling prepayment of freight and car mileage on traffic brought over the connecting carriers' line from certain localities, while not compelling prepayment of freight and car mileage on traffic brought over such line from other localities.- Oregon S. L. & U. N. R. Co. v. No. Pac. R. Co., 61 Fed. 160, affg. s. c. 51 Fed. 465.

[4] Necessity for tangible injury.

In cases of discrimination on rates,-- see ante, § 31, note [6].

That the community discriminated against is not directly injured does not justify an undue preference.- Kindell v. A. T. & S. F. R. Co., 8 Inters. Com. R. 608.

The mere fact that a contract has been entered into between a canal company and a coal company which will give a preference to the coal company over other shippers to the extent of one half the capacity of the canal, is no ground for an information in the nature of quo warranto in the absence of a showing that the rights of other shippers have actually been interfered with.- Commonwealth v. D. & H. Canal Co., 43 Pa. St. 295.

[5] Presumption and burden of proof.

The burden of proving undue preference or undue prejudice is on the complaining party.- Interst. Com. Commission v. L. & N. R. Co., 73 Fed. 409.

Discriminations against shippers must be considered unjust, unless forced by justifying conditions, and the burden is on the complainant to show the discrimination, and on the carrier to show that the discrimination was justified.- Richmond Elev. Co. v. Pere Marquette R. Co., 10 Inters. Com. R. 629.

[6] Different circumstances and conditions as justification.

As justification for discriminations in rates,- see also, ante, § 31, notes [32]-[55].

What are "contemporaneous shipments,"- see ante, § 31, note [41]. The law imposes the duty upon carriers not to unreasonably discriminate between persons, localities or forms of traffic, but a dissimilarity of circumstances and conditions may justify a discrimination.— U. S. v. Oregon R. & N. Co., 159 Fed. 975.

66

Population and tonnage traffic are differences which may be constituted circumstances and conditions" of dissimilarity; and it can not be said as a matter of law, that a carrier may not lawfully collect and deliver goods, at its own expense, in a city of 70,000 population and 1,000,000 ton traffic, and not in a city of 6,000 population and 55,000 ton traffic.Detroit, G. H. & M. R. Co. v. Interst. Com. Commission, 74 Fed. 803, revg. s. c. 57 Fed. 1005; affd. 167 U. S. 633, 17 Sup. Ct. R. (U. S.) 986.

Differences in facilities furnished under essentially different circumstances do not constitute undue or unjust discrimination.- Little Rock & Ft. S. R. Co. v. Oppenheimer, 64 Ark. 271, 43 S. W. 150, 44 L. R. A. 353.

[7] Matters relevant in determining question of undue prefer

ence.

In considering whether any particular locality is subjected to an undue preference or disadvantage, all the facts and circumstances must be considered, the welfare of the communities to receive and consume the goods as well as the communities producing and shipping them; the legitimate interests of the carriers as well as the traders and shippers; the competition between routes for traffic, etc.- Texas & P. R. Co. v. Interst. Com. Commission, 162 U. S. 197, 16 Sup. Ct. R. (U. S.) 666, revg. s. c. 57 Fed. 948, affg. s. c. 52 Fed. 187.

Location of freight stations, facilities afforded by rival carriers, the state of existing competition, are circumstances to be considered in determining what accessorial services a carrier may furnish, without unjustly discriminating.— Detroit, G. H. & M. R. Co. v. Interst. Com. Commission, 74 Fed. 803, revg. s. c. 57 Fed. 1005; affd. 167 U. S. 633, 17 Sup. Ct. R. (U. S.) 986.

When the Interstate Commerce Act says that no locality shall be subjected to any undue prejudice or disadvantage, it does not mean that regard is to be had solely to the welfare of the locality where the traffic originates, or where the goods are shipped on the cars. The welfare of the locality to which the goods are sent is also to enter into the question. -Interst. Com. Commission v. Ala. Mid. R. Co., 74 Fed. 715.

In passing upon any question of undue preference or disadvantage, it is proper to take into account various elements, such as the convenience of the public, the fair interests of the carrier, the relative quantities or volume of the traffic involved, the relative cost of the services, the profit to the company, and the situation and circumstances of the respective patrons, with reference to each other, as competitive or otherwise.- Interst. Com. Commission v. L. & N. R. Co., 73 Fed. 409.

[8] Intervention by commission.

The Interstate Commerce Commission should not interfere with the adjustment of rates between localities except when necessary to protect public interests. To justify the intervention of the Commission, it must appear that the preference and advantage in the one case, and the corresponding prejudice and disadvantage in the other, are so appreciable and established with such a degree of certainty as to be justly declared unreasonable. Commercial Club of Omaha v. Ch. & N. R. Co., 7 Inters. Com. R. 387.

The Interstate Commerce Commission will not decide, on an ex parte application, whether railroads ought to grant a particular special privilege of manufacturing in transit, etc.- In re Iowa Barb Steel Wire Co., 1 Inters. Com. R. 21, 605, 1 I. C. C. R. 17.

[9] General rules and principles.

It may be presumed that Congress, in adopting substantially the language of the English Act, had in mind the construction given to the words "undue preference" by the courts of England.-Interst. Com. Commission v. B. & O. R. Co., 145 U. S. 263, 12 Sup. Ct. R. (U. S.) 844, affg. s. c. 43 Fed. 37; Interst. Com. Commission v. Ch. G. W. R. Co., 141 Fed. 1003.

There is no distinction in principle between a discrimination in the furnishing of facilities with which to originate a shipment, and a discrimination in the furnishing of facilities with which to receive a shipment.- Rogers v. Phila. & R. R. Co., 12 Inters. Com. R. 352.

Discrimination may arise in the delivery of goods as well as in the receipt or transportation.- St. Louis Hay & G. Co. v. C. B. & Q. R. Co., 11 Inters. Com. R. 82.

A preference or advantage in rates or service is not unlawful under Interst. Com. Act, § 3, unless it results from the wrongful action of the carrier.- Wilmington T. Assn. v. Cincinnati P. & V. R. Co., 9 Inters. Com. R. 118.

Because one railroad violates the Interstate Commerce Act in one particular does not justify another in violating it openly in another particular. In re Atchison T. & S. F. R. Co., 7 Inters. Com. R. 61.

A given relation in rates between competing towns, fairly equitable at the time of its adoption, may become, through business development and charges in other conditions, severely prejudicial to the town taking the higher schedule.- Daniels v. Ch. R. I. & P. R. Co., 6 Inters. Com. R. 458.

The English cases are valuable in defining what constitutes undue preference or prejudice. etc., but their value is greatly limited in cases where the statute itself describes the offense it declares unlawful.—

R. R. Commission of Ga. v. Clyde Ss. Co., 4 Inters. Com. R. 120, 5 I. C. C. R. 324.

Discrimination must consist in the doing for or allowing to one party or place what is denied to another; it cannot be predicated of action which is in itself impartial.- Crews v. Richmond & D. R. Co., 1 Inters. Com. R. 490, 703, 1 I. C. C. R. 401.

A railroad may engage in furnishing accessorial service to consignors or consignees, but they cannot monopolize, wholly or partly, this accessorial business, or promote the monoply of it by anyone else, or appropriate preferential advantages for conducting it, to their own profit or that of anyone else.- Camblos v. Philadelphia R. Co., Fed. Cases 2331.

A carrier has the right to prescribe such reasonable rules and regulations as are deemed best calculated to promote its own interests and those of shippers.- Pennsylvania Coal Co. v. D. & H. Canal Co., 31 N. Y. 91, affg. 29 Barb. (N. Y.) 589.

Making a special contract to convey a commodity renders a railroad a common carrier of that commodity, bound to render reasonable and equal facilities for all of such commodity offered for transportation.- Baker v. Boston & M. R. Co., - N. H., 65 Atl. 386.

[10] Effect of competition.

Competition is a factor to be considered under Interst. Com. Act, § 3. - East Tennessee, V. & G. R. Co. v. Interst. Com. Commission, 181 U. S. 1, 21 Sup. Ct. R. (U. S.) 516; Interst. Com. Commission v. Ala. Mid. R. Co., 168 U. S. 144, 18 Sup. Ct. R. (U. S.) 45, affg. s. c. 74 Fed. 715, 69 Fed. 27; Interst. Com. Commission v. Ch. W. R. Co., 141 Fed. 1003; Interst. Jom. Commission v. Clyde Ss. Co., 93 Fed. 83.

In interpreting and applying Interst. Com. Act, § 3, competition between rival routes does not necessarily relieve the carrier of the restraints imposed by the section, but it is to be considered in determining what constitutes "undue or unreasonable preference or advantage." The competition may be such that, out of due regard for the interests of the public and the carriers, it ought to be permitted to influence rates, and there is no rule which prevents the Interstate Commerce Commission or the courts from taking it into consideration.- Interst. Com. Commission v. Ala. Mid. R. Co., 168 U. S. 144, 18 Sup. Ct. R. 45, affg. s. c. 74 Fed. 715, 69 Fed. 227.

Conditions of water and trunk line competition considered, under Interst. Com. Act, § 3.- Interst. Com. Commission v. Cincinnati, P. & V. R. Co., 124 Fed. 624.

The fact that competition results in placing one shipping point at a disadvantage with another does not make a case of discrimination.Allen & Lewis v. Ore. R. & N. Co., 98 Fed. 16; Savannah Bureau v. Charleston & S. R. Co., 7 Inters. Com. R. 458.

The advantageous position of one trader in having his establishment so located that he has two competing routes is as much a circumstance to be considered as the geographical location of another shipper, who though he has not the advantage of competition between routes is situated at a point on the line physically nearer the common market.- Interst. Com. Commission v. L. & N. R. Co., 73 Fed. 409.

In the distribution of cars, a carrier may not discriminate between competitive and non-competitive points.― Hawkins v. L. S. & M. S. R. Co., 9 Inters. Com. R. 207; Hawkins v. Wheeling & L. E. R. Co., 9 Inters. Com. R. 212.

Under Interst. Com. Act, § 3, the question is not merely whether some form of competition exists at the favored point which is not found at the other, but rather do all the circumstances and conditions, taking into consideration the interests of all the parties, excuse the preference. - Holdzkom v. Mich. Cent. R. Co., 9 Inters. Com. R. 42.

That one city is larger, with more business, etc., and hence the competition between carriers is keener there than at another city served by the same railroad, is not a condition of competition which necessarily justifies a disparity in rates.-- Holdzkom v. Mich. Cent. R. Co., 9 Inters. Com. R. 42.

When a common carrier has established a business, it may retain it by the use of all lawful means. The means here adopted for this purpose was to offer the service to the public at a loss to themselves whenever competition was to be met, and when it disappeared, to resume the standard rates, which did not at any time exceed a reasonable and fair charge. There is nothing unlawful or against the public good in seeking by such means to retain a business which it does not appear was of sufficient magnitude to furnish employment for more than one line.- Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292, 25 L. R. A. 674, affg. s. c. 68 Hun (N. Y.), 486, 22 N. Y. Supp. 976.

[11] Delay as discrimination.

Delay in shipment may be discrimination.- Gulf, C. & S. F. R. Co. v. Lone Star Co., 26 Tex. Civ. App. 531, 63 S. W. 1025.

[12] Discriminations between localities in general. Arbitraries and differentials,— see ante, § 31, note [60]. Group raies and basing points,- see ante, § 31, note [61].

It is competent for a railroad to advance its own interest to the extent of building up a seaport on its own line at the expense of another port on a rival line, but it cannot, for this purpose, adopt rates, excessive in themselves, unduly preferential to its own port and unduly prejudicial to the other.-Interst. Com. Commission v. L. & N. R. Co., 118 Fed. 613.