with the Interstate Commerce Commission a joint tariff of rates and charges.- Held, that the indictment did not properly charge an offense. by the defendant inasmuch as it failed to allege that a tariff was filed and published by the defendant.-U. S. v. N. Y. C. & H. R. R. Co., 157 Fed. 293.

From a comparison of the numerous counts of an indictment for the giving of rebates, it appeared that the payments of the rebates were in several cases made on the same day.- Held, that while if there was actually one payment there would be only one offense, it did not appear from the face of the indictment whether there was in fact only one payment on the one day and a demurrer to such indictment could not be sustained.-U. S. v. Cent. Vt. R. Co., 157 Fed. 291.

66

A count of an indictment alleging that a carrier offered, granted and gave" a rebate is not bad for duplicity, as alleging more than one offense.-U. S. v. D. L. & W. R. Co., 152 Fed. 269.

Under the Hepburn Law, it is not sufficient to allege in the indictment that a carrier "unlawfully" gave rebates. The allegation must include that such rebates were "knowingly" given.- U. S. v. D. L. & W. R. Co., 152 Fed. 269.

An indictment for giving rebates, etc., averred that the carrier charged the legal rate, but granted and paid to the shipper a rebate or concession therefrom, whereby it carried the property at less than the legal rate. It did not allege a prior agreement for such rebate, nor did it negative the existence of conditions or circumstances which might make the repayment legal.- Held, that this was a valid and sufficient indictment.— U. S. v. Ch. St. P. & O. R. Co., 151 Fed. 84. A corporation and its agents may be criminally prosecuted for the same offense of giving rebates, in a single indictment.-U. S. v. N. Y. C. & H. R. R. Co., 146 Fed. 298.

An indictment for giving rebates in violation of the Interst. Com. Act, § 2, is bad when it merely alleges the giving of rebates to certain shippers, as it must also give an instance when a like rebate was not given or was refused to some other shipper.-U. S. v. Hanley, 71 Fed. 672.

An indictment charging unjust discrimination in rates in violation of Interst. Com. Act, § 2, need not aver by what particular device the defendant managed to discriminate in favor of the particular shipper. -U. S. v. Tozer, 37 Fed. 635, 2 L. R. A. 444n.

An indictment for unjust discrimination is defective if it does not allege that the offense was knowingly or wilfully committed.- Louisville & N. R. Co. v. Commonwealth, 105 Ky. 179, 20 Ky. L. R. 1099, 48 S. W. 416, 43 L. R. A. 541.

An indictment for unjust discrimination, is defective if it does not allege that the goods were of the same class or kind, handled between the same points, and under substantially similar conditions.- Louisville & N. R. Co. v. Commonwealth, 105 Ky. 179, 20 Ky. L. R. 1099, 48 S. W. 416, 43 L. R. A. 541.

An indictment for giving an undue preference is defective where it alleges merely that the defendant made an undue preference by giving H. a free pass, but fails to allege that by virtue of the pass H. received free transportation.-State v. So. R. Co., 125 N. C. 666, 34 S. E. 527.

The allegation in an indictment that a carrier gave a named person an undue preference by transporting him free, alleges discrimination. -State v. So. R. Co., 125 N. C. 666, 34 S. E. 527.

§ 32. Unreasonable preference.- No common carrier shall make or give any undue or unreasonable preference or advantage to any person or corporation or to any locality or to any particular description of traffic in any respect whatsoever, or subject any particular person or corporation or locality or any particular description of traffic to any prejudice or disadvantage in any respect whatsoever.

Penalties for unjust discriminations on interstate shipments,— see Elkins Act, § 1, post, Appendix B.

Court proceedings to compel discontinuance of discriminations in interstate traffic,-see Elkins Act, § 3, post, Appendix B.

For discriminations in rates on Interstate shipments,- see Interst. Com. Act, § 2, post, Appendix B.

For similar provisions in the Interstate Commerce Act,- see Interst. Com. Act, § 3, post, Appendix B.

Railroads may not give preference for the transaction of business of common carrier upon its cars or in its depots or on its grounds, - see N. Y. R. R. L., § 34.

Provisions of the New York Railroad Law forbidding discriminations between connecting carriers,- see N. Y. R. R. L. § 35. Power of former Board of Railroad Commissioners with reference to unjust discriminations,- see N. Y. R. R. L. § 160.

Carriers shall charge rates reasonable in themselves,- see ante, § 26. Duty of carrier to install switch and sidetrack connections,— see ante, § 27.

Carriers shall not unjustly discriminate as to rates and charges,see ante, § 31.

Carriers shall not discriminate in facilities between connecting lines,

see post, § 35.

Carriers shall not subject shippers to prejudice in the distribution of cars,- see post, § 37.

Forfeitures and penalties for giving undue or unreasonable preference or advantage,- see post, § 56.

Statute providing penalties for unjust discrimination construed as penal, see ante, § 1, note [35].

General rules of statutory construction,-see ante, § 1, notes [23][40].

Purpose of acts regulating railroads,- see ante, § 1, note [32].
Who are common carriers,—see ante, § 2, notes [2]-[7].

What constitutes a railroad or street railroad,- see ante, § 2, note [8]. Regulations by Commission to prevent unjust discrimination presumptively reasonable,- see ante, § 23, note [1].

What statutes regulating rates amount to a regulation of interstate commerce, see ante, § 25, note [14].

Statutes requiring the charging of reasonable rates merely declaratory of common law,- see ante, § 26, note [1].

Provisions of Act applicable to thorough routes as well as single lines, see ante, § 26, note [25].

Meaning of term "rate," see ante, §§ 26, note [26].

Discretion of carrier in fixing rates,- see ante, § 26, note [28]. Granting of rebates as evidence that rates rebated from are unnecessarily high,- see ante, § 26, note [36].

Issuance of transfers by street railroads,- see ante, § 26, notes [58][72].

Presumption of legality of rates filed and posted,- see ante, § 28, note [14].

Statutes forbidding unjust discriminations merely declaratory of common law,- see post, § 31, note [22].

Commodity rates,- see ante, § 31, note [59].

Giving of passes as unjust discrimination,- see post, § 33, note [13]. Discrimination in matter of continuous carriage without breakage of bulk,- see post, § 39, note.

Power of Commission to compel furnishing of facilities,- see post, § 49, note [13].

[1] Rule of equality.

Construction of statutes declaratory of common law,- see ante, § 1, note [31a].

Duty of carriers not to unduly discriminate as to rates,- see ante, § 31, note [1].

"Unlawful discrimination" defined.-see ante, § 31, note [3].

Not all discriminations unlawful,— see ante, § 31, note [4].
Duty of carriers not to discriminate between connecting lines,- see

post, § 35, notes [1]-[7].

Duty not to charge more for short than for long haul,- see post, § 36, notes [4], [5].

Duty of carrier not to discriminate in furnishing cars,- see post, § 37, note [9].

Effect of agreement on duty of carrier not to discriminate in furnishing cars,- see post, § 37, note [12].

The provision in the Constitution of Colorado that "no railroad company shall give any preference to individuals, associations or corporations in furnishing cars or motive power" imposes no greater obligation on a carrier than the common law imposed.— Atchison, T. & S. F. R. Co. v. D. & N. O. R. Co., 110 U. S. 667, 4 Sup. Ct. R. (U. S.) 185, revg. s. c. 13 Fed. 546.

A railroad company owes the duty to shippers not to unreasonably and 'unduly discriminate against them in favor of other shippers.— U. S. v. Oregon R. & N. Co., 159 Fed. 975.

A carrier cannot discriminate between persons who tender freight for transportation.—3181⁄2 Tons of Coal, 14 Blatch. (U. S.) 453.

A carrier who under any pretext whatever grants to one shipper an advantage which it denies to another violates the spirit and thwarts the purpose of the law. Castle v. B. & O. R. Co., 8 Inters. Com. R. 333.

At common law, and also under the N. Y. Railroad Law, a carrier could not unreasonably or unjustly discriminate between persons whose property was offered for transportation, but was bound to deal with them all substantially alike.- People ex rel. Ohlen v. N. Y. L. E. & W. R. Co., 22 Hun (N. Y.), 533.

A railroad company, where it acts as a common carrier, is bound to serve alike all the members of the public who apply for service under like conditions.- State v. Atlantic C. L. R. Co., 51 Fla. 543, 41 So. 528.

In matters as to the management of its property and involving no duty to the public, a carrier may grant concessions to some which it withholds from others, especially if such a course is beneficial to the public.Kates v. Atlanta Cab Co., 107 Ga. 636, 34 S. E. 372, 46 L. R. A. 431.

A railroad is without power to enter into a preferential or exclusive contract with any of its patrons.-L. & N. R. Co. v. Central Stock Yards Co., 30 Ky. L. R. 18, 97 S. W. 778.

Carriers cannot legally give undue and unjust preferences.- New Eng. Exp. Co. v. Me. C. R. Co., 57 Me. 188.

Terms imposed by railroads for trackage to warehouses near stations must be the same for all, even though warehouses are on the carrier's

right of way. Farwell F. W. Assn. v. Minneapolis, St. P. & S. St. M. R. Co., 55 Minn. 8, 56 N. W. 248.

A carrier is required to provide facilities for and to receive and ship goods tendered at its stations on payment or tender of the usual tariff rates and may not discriminate between shippers.- State ex rel. Crandall v. C. B. & Q. R. Co., 72 Neb. 542, 101 N. W. 23; State ex rel. McComb v. C. B. & Q. R. Co., 71 Neb. 593, 99 N. W. 309.

A common carrier cannot exercise an unreasonable discrimination, in the carriage of goods.- McDuffee v. Portland & R. R. Co., 52 N. H. 430. A car switching company must not discriminate between shippers.— Larrabee Flour Mills v. Mo. Pac. R. Co., 74 Kan. 808, 88 Pac. 72.

A carrier must not use its powers to benefit one community, industry or individual to the detriment of another.- Houston & T. C. R. Co. v. Smith, 63 Tex. 322.

[2] Legislative control.

General power to regulate property devoted to public use,- see ante, § 1, notes [1]-[22].

Exemptions from public control,- see ante, § 1, notes [16]-[21]. Effect of receivership on power to regulate,- see ante, § 2, note [15]. The provisions of Inters. Com. Act. § 3, as to undue advantage or prejudice, etc., apply to discrimination in facilities or instrumentalities of transportation, and give the Interstate Commerce Commission jurisdiction of any case of wrongful prejudice arising in connection therewith. -Red Rock F. Co. v. B. & O. R. Co., 11 Inters. Com. R. 438.

The legislature may prohibit unjust discriminations, as to localities, in charges for the transportation of persons and freights.-Chicago & A. R. Co. v. People, 67 Ill. 11.

A Kentucky statute making it unlawful for any corporation to give “any undue or unreasonable preference or advantage to any particular person or locality, or any particular description of traffic," etc. is void for uncertainty. Commonwealth v. L. & N. R. Co., 20 Ky. L. R. 491, 46 S. W. 700; Louisville & N. R. Co. v. Commonwealth, 99 Ky. 132, 35 S. W. 129.

Under a statute prohibiting carriers from giving any undue or unreasonable advantage, etc., the power of the Railroad Commission is not confined to prevent such preferences, etc. in rates, but in any respect pertaining to their functions as common carriers.-R. R. Commission v. H. & T. C. R. Co., 90 Tex. 340, 38 S. W. 750.

A statute making a carrier who forwards goods of a favored shipper out of the order in which they are received, liable for all losses resulting from the delay, and also for statutory penalties, is valid.- Hill & M. V. St. Louis S. W. R. Co., 7 Tex. C't. R. 336, 812, 75 S. W. 874.