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the rate so scheduled may not be changed by the railroad without the filing and sufficient publication of a new rate. The doctrine is carried to such an extent that even if a shipper is at first charged a lower rate quoted him by a freight agent, he can be compelled to pay the difference between this and the schedule rate. If the rate so published is unreasonable in itself or otherwise disproportionate, nevertheless the shipper may not accept nor the railroad grant a departure from it. The shipper's remedy is a complaint to the commission, which will result, if successful, in a reduction in the future and in damages for past unfair exactions. It follows that not only are rebates to favored individuals, and even special rates for good reasons, if they have not been publicly offered, made illegal, but it is also criminal for railroads or shippers to receive or give less than the published rates, even though both parties agree that the published rates are unreasonable and discriminatory.72

142. Special concessions to large customers.—It has not been uncommon for the managers of public service corporations to make lower proportionate rates to larger than to smaller customers. In the older times this was practiced openly as there was then no recognized rule against discrimination as such. But even in these later days it is often attempted to defend this practice on principle.73 For

71 Texas & P. R. R. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628.

72 Goodridge v. Union Pacific R. R. Co., 37 Fed. 182, LEADING ILLUSTRATIVE CASES.

73 Silkman v. Water Commissioners, 152 N. Y. 327, 46 N. E. 612, LEADING ILLUSTRATIVE CASES.

this policy is of great importance to the managers of public services who may often see the opportunity to get large amounts of valuable business, highly profitable in the aggregate even at lower proportionate rates, if they can still maintain higher proportionate rates upon the regular business which they get from smaller customers who are not in a position to dictate their terms. That this policy may often be advantageous in public business, as it is in private business, may be admitted, but it has already been seen that public duty may conflict with business policies. If, therefore, these concessions to larger shippers are in conflict with the public duty which the common carrier owes to smaller shippers, they must be held illegal as unjust discriminations." This will be the clearer when it is shown that the favoring of such large shippers will give them such commercial advantages that they may crush out their small competitors in the common markets. The prevalent rule forbidding the granting of special reductions to larger shippers, as such, on the ground that they furnish a greater aggregate of business to the common carrier, seems, therefore, a necessary part of the law forbidding all personal discrimination.

143. Lower rates to exclusive customers.-Undoubtedly there is a commercial advantage in being able to adopt the policy of promoting exclusive arrangements with desirable customers, by offering reductions. The essential illegality of this policy appears most plainly, as has been seen in other connections, when there is an outright refusal to serve

74 Scofield v. Lake S. & M. S. R. R. Co., 43 Ohio St. 571, 3 N. E. 907.

those who deal with a rival.75 A railroad may not refuse to take freight from a shipper who formerly shipped by it exclusively, but has now made arrangements to ship part of his freight by another line. If the public service company may not refuse to serve for the promotion of its own business interests, no more may it discriminate to obtain the advantages which may accrue to it if it may make lower rates to those who deal exclusively with it; but this policy would still prevail in making rates in competitive business doubtless, as it once did, were it not for the modern recognition of its essential illegality. That such a policy may be advantageous to the company which employs it may be granted, but it has already been seen that those who conduct a public employment must forego many methods of getting business and holding it which are permissible in private affairs.

76

144. Service in more convenient units.-The most obvious application of the principles under discussion is the relatively lower rate almost universally quoted for carload lots as compared with less than carload. Substantial reasons exist for making the rate lower per barrel in carload lots than in less than carload quantities." The cost of service is very considerably less in the case of car shipments. Altogether the economies of handling freight in carload lots are apparent. A rate per 100 pounds in less than carload lots may well be twice the rate

75 Menacho v. Ward, 27 Fed. 529.

76 Hays v. Pennsylvania Co., 12 Fed. 309, LEADING ILLUSTRATIVE CASES. 77 New York T. & M. R. R. Co. v. Gallaher, 79 Tex. 685, 15 S. W. 694.

upon carload lots and not be unreasonable. Furthermore, shipments in bulk, as of oil in tank cars, are much cheaper to handle than in carloads of barrels; and a correspondingly lower rate may be given. But, as it is the business of the railroad to see that none of its patrons are put to disadvantage, a railroad failing to supply tank cars for those who own none must charge a barrel shipper the bulk rate only.78

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145. Allowances made for facilities.-It was formerly not open to question that where the customer furnished part of the facilities for his services a special rate could be charged him. Thus where a coal dealer furnished a wharf for his shipments an arbitrary reduction on his rates passed muster some years ago. With the rigorous enforcement of the law against all discrimination in late years, such arrangements as have been just described are being condemned, if not as virtual discrimination, at least as a cover for discrimination. At all events, the whole facts will be gone into to discover whether too advantageous terms are being obtained. Thus in a recent case it was discovered that a car company was getting so much for the use of its cars that the reduction was being made the basis for reduced rates to those who shipped in those cars. And in another recent case not charging certain shippers demurrage for cars, upon what apparently was a private siding, while others paid demurrage in regular yards, was held to constitute discrimination. However, the 78 State v. Cincinnati N. O. & T. P. R. R. Co., 47 Ohio St. 130, 23 N. E. 928.

79 Root v. Long Island R. R., 114 N. Y. 300, 21 N. E. 403, LEADING ILLUSTRATIVE CASES.

railroads are still allowed to make arrangements with those customers furnishing their own facilities. Those who get allowances which are not scheduled will, however, fall foul of the modern statutes against discriminations, even if the allowances made are proper enough in themselves, since the legality of every charge depends upon the schedule published.80 146. Difference in rate between freight classes. -It has been pointed out that there are great differences between the rates payable for transportation for the same distances upon goods in different classes. There is no fixed percentage for fixing the differentiation even of the six classes usually established; still less is there any definite rule for the differences to be made between commodities with extra class rating. But it is matter of common knowledge that there are great differences between rates payable by the different classes, the highest class usually paying for the same transportation many times what is paid by the lowest class. All that can be said in general is that the principles as to rate making apply here as elsewhere, and that the burden must be thrown upon the various classes without outrageous disproportion.81 The principles governing this matter have already been given. If the charge is excessive as compared with the charges of the same corporation for other commodities of like bulk and weight, value and risk, it would seem to be improper. That such comparisons are generally re

80 Chicago & A. R. R. v. U. S., 156 Fed. 558.

81 Cincinnati H. & D. R. R. Co. v. Interstate Com. Com., 206 U. S. 142, 27 Sup. Ct. 648.