sorted to is proof enough that the rule against disproportion is generally observed.82

147. Unjust rates between localities.-At common law the public servant deals with the individual; except under a statute a community as such cannot complain of a discrimination against its inhabitants. Thus at common law it is the shipper who complains of discrimination. Whatever may be the present law as to the right of a customer in one locality to complain that his rates are disproportionately high as compared with those charged other customers of the company in other localities, it is certain that such discrimination is in itself evidence that the higher charge is an unreasonable one. Thus, whenever a rate between two points is attacked by an individual shipper as unreasonable in itself, as evidence in support of the complaint he may show that rates are lower for a similar haul between other points. Under modern legislation, however, this rate complained of may be so outrageously disproportionate as to constitute a violation of statutory provisions; & but if a rational defense can be made for the higher rate the courts have been inclined to permit it to stand. Thus under the federal legislation forbidding different charges unless the circumstances were dissimilar, competition existing between two points was held to justify a lower rate than that maintained between intermediate points where there was no competition.84

83

82 Interstate Com. Com. v. Chicago Gt. W. R. R., 209 U. S. 108, 28 Sup. Ct. 852.

83 Interstate Com. Com. v. Louisville & N. R. R., 118 Fed. 613.

84 Texas & P. R. R. v. Interstate Com. Com., 162 U. S. 197, 16 Sup. Ct. 666.

148. Relative discrimination inconsistent with public duty. It is submitted, therefore, that the public service law will not be satisfied in the end unless with some reasonable degree of certainty each applicant who requires a service is charged his proportion of the total cost, including in that cost, over and above all current and fixed charges, a fair return upon proper capitalization. It must be admitted that the law relating to disproportion is still in the making; it is as indefinite as the law relating to discrimination was twenty-five years ago. In the same way to-day, very probably there is no well recognized law against disproportion as such. Provided each applicant for different service is quoted a rate which is reasonable in itself, it may be that there is no redress by established law, however outrageous the disproportion may be, although it seems to be agreed that these palpable differences may of themselves be evidence that the higher rate is unreasonable in itself. And yet it is quite in the line of the evolution of the public service law that a rule against disproportion, as such, may eventually be recognized, despite the fact that it might interfere with the business policies of the public companies even more than the present rule against outright discrimination has done. For it seems plain that the same principles which forbid any differences when the conditions are the same, should prohibit disproportionate differences when the conditions are different. A charge for any particular service which is based upon the outlay caused is undeniably in accord with sound reason and policy.

BIBLIOGRAPHY.

Treatises.-Beale, J. H., and Wyman, B.: Railroad Rate Regulation (1906); Drinker, H. S., Jr.: The Interstate Commerce Act, 2 vols. (1909); Hayes, H. V.: Valuation of Public Utilities (1913); Ivins, W. M., and Mason, H. D.: Control of Public Utilities (1908); Jones, S. W.: Telegraph and Telephone Companies (1906); Hammond, M. B.: Rate Theories of the Commission (1908); Hutchison, Robert: Carriers, 3rd ed., 3 vols. (1906); Moore, W. C.: Carriers. (1906); Noyes, D. C.: Railroad Rates (1906); Pond, O. L.: Public Utilities (1913); Whitten, H.: Valuation of Public Service Corporations (1912); Wyman, Bruce: Public Service Corporations, 2 vols. (1911). Magazine Articles.-Bailey, E. C.: Basis of Rate Regulation, II Columbia Law Review, 533, 639 (1911); Burdick, C. K.: Duties of Public Service Corporations, II Columbia Law Review, 515, 616, 743 (1911).

Case Books.-McClain, E.: Cases on Carriers; Wyman, B.: Cases on Public Service Companies; Goddard, E. C.: Cases on Bailments and Carriers (1909); Green, F.: Cases on Carriers.

LAW OF MUNICIPAL

CORPORATIONS

BY

HENRY H. INGERSOLL, A.M., LL.D.*

CHAPTER I.

DEFINITION, EVOLUTION, CREATION, DISSOLUTION,

ELECTION.

1. Definition.-The municipal corporation is a perfect public corporation, established under and by virtue of a sovereign act of legislation, uniting the people and land within a prescribed boundary into a body corporate and politic for the purposes of local and self-government, and invested with the powers necessary therefor. It is perfect as contradistinguished from the imperfect quasi-corporation, the county, district, or township, loosely organized under general law into a governmental agency for local administration. The municipal corporation is duly incorporated not primarily to enforce state laws, but chiefly to regulate the local affairs of the city, town, or district incorporated, by proper legislation and administration. Its object is public, though incidents connected with it may be of private nature, and

* Dean and Professor of Law, University of Tennessee College of Law; former Judge of Supreme Court of Tennessee. Author: "Public Corporations." Editor: "Barton's Suit in Equity." Contributor to legal encyclopedias and periodicals.