as before observed, it was not the design of the act to stifle competition, nor is there any legal injustice in one person's procuring a particular service cheaper than another."

§ 204 (155). Discrimination not unjust when based on special service. While discrimination based merely on the quantity shipped is not justified, discrimination is proper when it is based on a difference in the cost of handling. In any event however, whatever the basis, the reduced rate must be open to all alike complying with the same conditions, and the rate must be published as provided in section 6. Thus if any accessorial services are rendered by the carrier, such as cartage, the circumstances and conditions are clearly dissimilar. See Detroit, Grand Haven & Milwaukee Railroad Co. v. Interstate Commerce Commission, supra.

Where a special service is required of the carrier, such as rapid transit and speedy delivery, or refrigeration in transit, a higher rate than for ordinary freight is warranted. If the carrier charging a rate for such special service fails to render it, to the damage of the shipper and without legal excuse, the remedy of the latter is by proper proceeding at law. 5 I. C. C. R. 529, 4 Int. Com. Rep. 205; 4 I. C. C. R. 588, and 3 Int. Com. Rep. 554.

This principle was applied in a case, Wilson v. Atlantic Coast Line R. Co., 129 Fed. Rep. 774, where it was held that a railroad company was not required as a common carrier to take a circus train, a part of which is loaded with wild animals, and transport the same over its line, but it may refuse to transport such train except under special contract limiting its liability from that ordinarily assumed by a common carrier. See also Chicago, Milwaukee & St. Paul R. Co. v. Wallace, 66 Fed. 506, 14 C. C. A. 257, 7th Circuit, and 30 L. R. A. 161. In these cases the question was one of the right of the carrier to make special contracts for such special class of freight and to become in effect private carriers thereof. It would follow that the carrier would have a right to make special charges therefor without unjust discrimination.

Thus there was held to be no discrimination in a preferential rate to tank shippers as against barrel shippers, in the transportation of oil. Penn Refining Co. v. W. N. Y. & P. R. Co., 208 U. S. 208, 52 L. Ed. 456, affirming the court of appeals of the

third circuit, 153 Fed. 343. The shippers in this case furnished their own tanks and the carrier had information that the transportation by tank cars was more remunerative to the shipper than the transportation by barrels. The latter shippers had made no demand for tank cars, and could not have used them economically on account of the lack of facilities for unloading. It was held there was no discrimination in charging a rate which was not unreasonable in itself, which was higher for barrels than the tank cars owned by the shippers. See also Interstate Commerce Commission v. Chicago G. W. R. Co., 209 U. S. 108, 52 L. Ed. 705, affirming 141 Fed. 1003, where held that the cost of carriage and risk of injury might excuse a higher rate on live stock than on dressed meats and packing house products.

§ 205 (156). Carload and less than carload rates.-The phrase "under similar circumstances and conditions" has always been discussed with reference to the proper unit of freight charges, whether carload or less than carload, and of the proper basis for discrimination between carload rates and less than carload rates. It will be seen that on this point the interest of localities is directly involved. Thus the great centres of distribution opposed the differential for the sake of encouraging less than carload shipments to other parts of the country, while shippers at interior points, desiring themselves to distribute to their respective territories, strongly favored a liberal differential between the carload and less than carload rate.

This subject was exhaustively considered in the Thurber case, 3 I. C. C. R. 473, 2 Int. Com. Rep. 742. Although it was contended by the western jobbers that the carload rate was the proper and recognized unit, the commission said that it was a sound rule for the carriers to adapt their classification to the laws of trade. If an article moves with sufficient volume and the demands of commerce will be better served, it is reasonable to give it a carload classification and rate. The carload is probably the only practicable unit of quantity, and the fact that an antecedent condition, when no such distinction existed and perhaps was not required, furnish no argument for a return to a condition no longer suited to the requirements of business. It was therefore impracticable and would seriously demoralize classification in business to attempt to restore equal rates for carload and less

than carload shipments in respect of goods properly so classified. It was said however that the public was more largely interested in miscellaneous than in carload shipments of any one kind of traffic, and that differences ranging from forty to one hundred per cent. between the carloads and less than carloads were unreasonable and unjust especially upon articles of general and necessary use, as so great a difference would be destructive of competition between large and small dealers.

While the circumstances and conditions in respect to the work done by the carrier and the revenue earned are dissimilar in the transportation of freights in carloads and less than carloads, and a lower rate on carloads than on less than carloads is therefore not in contravention of the statute, yet the difference between the two rates must be reasonable. 9 I. C. C. R. 78.

See also 9 I. C. C. R. 318, where the commission discussed the proper differential between carload and less than carload rates from the middle west to the Pacific coast.

The determination of what commodities are properly allowed carload rates may involve the matter of undue preference against particular kinds of traffic under sec. 3. See 4 I. C. C. R. 212, 3 Int. Com. Rep. 257, infra, § 266.

206 (157). Discrimination in application of carload rates. In 9 I. C. C. R. 620, the commission discussed the right of a carrier in according a carload rating to look beyond the transportation itself to the ownership of the property transported. The railroad in that case declined to allow a combination of carriages in carload lots at carload rates, and insisted on allowing the carload rate only where the shipment was from one consignor to one consignee, thus denying the right of a forwarding agent shipping the goods of different parties at a carload rate. The commission ruled that there should be no discrimination between consignor and consignee in the allowance of carload rates, when the conditions of the ownership after the property was delivered to the carrier was the same. But no opinion was expressed on the further question whether the carrier could distinguish between a forwarding agent and the actual owner.

In Lundquist v. Grand Trunk Railway Co., 121 Fed. 915, it was held that a carrier could properly distinguish between the forwarding agent and the owner of the property,

and could apply the carload rating when the goods were tendered for shipment by the owner and refuse it when the like traffic was offered by the forwarder. The court said however that it was "a pioneer case, and little aid could be obtained from authoritative sources." A different ruling was made in England as to the English statute, Great Western Railroad v. Sutton, L. Rep. 4 H. L. 238, the court holding that like circumstances referred to the carriage of the property and that the carrier could not impose a higher rate when offered by an agent than when offered by the owner. In the Lundquist case the court said that the English statute was much more explicit in its terms than the Interstate Commerce Act, in that it provided that all toll should be charged equally to all persons; but even if it were not so, it was not probable that our courts would be called upon to follow the English courts, as the cases were so different. It would seem, however, doubtful whether the employment of a forwarding agent constitutes a difference in the circumstances and conditions warranting discrimination by the carrier.

§ 207. The supreme court on forwarding agents in carload rates. It was subsequently ruled by the commission both as to express companies (14 I. C. C. R. 422), and as to railroads (14 I. C. C. R. 437), that the carrier could not properly look beyond the transportation to the ownership of the shipment as the basis for determining the applicability of its rates, and that the rules of the official classifications, providing that defendants should collect a greater compensation for car load shipments when made by forwarding agents of different shippers, were unjustly discriminatory and unreasonable. This ruling was disapproved by a majority of the circuit court of the southern district of New York in Delaware, L. & N. C. Co. v. Interstate Commerce Commission, 166 Fed. 499, and the enforcement of the order of the commission was enjoined.

The question was definitely determined, however, by the supreme court in support of the ruling of the commission, in 220 U. S. p 235, 55 L. Ed. (April, 1911), where the court reversed the circuit court, and held that the ownership or non-ownership by the shipper of the goods tendered for carriage was not a dissimilar circumstance and condition within the meaning of section 2 of the act, and that a forwarding agent was a person

within the meaning of the act. The court adopted the settled construction of the equality clause of the English Act and held that the circuit court erred in annulling the order of the commission.

§ 208. Discrimination in carload rates.-The right to make carload and less than carload rates carries with it the right of the carrier to fix the minimum rate and charge for the transportation of less than carload shipments on account of the necessary expense and trouble attending the carriage of such shipments, which aside from the actual manual labor involved are practically the same irrespective of the bulk of the package. The question in such cases is whether or not the rate is reasonable and not unjustly discriminative. In 10 I. C. C. R. 412, it was ruled that the minimum charge upon any single shipment of freight should be for one hundred pounds, and that the class or commodity rate of a certain property was not unreasonable or unjustly discriminative in its application to the traffic in question.

§ 209 (158). Cargo rates discriminative.—The principle of the carload as the only practicable unit of quantity was discussed in 7 I. C. C. R. 218, where it was strongly intimated, though not finally decided, that a lower rate made by the carrier on cargo lots, being ten thousand bushels of oats and eight thousand bushels of other grains, than on carload lots in export shipments, or in shipments made to the seaboard for export, violated the rule of equality and constituted an unjust discrimination. It was said that this limit of the lower rate would require about ten carloads, and that the effect would be to throw the business into the hands of the large dealers, the margin of profit being very small and the opportunity afforded for the manipulation of prices at seaboard points would be increased.

As to discrimination based on differential in favor of ten carloads of cattle, see 10 I. C. C. R. 327.

Any regulation not justified by the increased cost of service and which tends to discriminate between shippers according to the amount of traffic is unreasonable. Thus making certain charges for the transportation of coal shipped in carloads when the coal is loaded by tipple, that is from platforms and chutes, and exacting a higher charge when it was loaded in some other