self into another form.
Can the defendants lawfully require the complainants to pay more for carrying the same kind of merchandise, under like conditions, to the same plaoes, than they charge to others, because the complainants refuse to patronize the defendants exclusively, while other shippers do not? The faot that the carrier charges some less than others for the same service is merely evidence for the latter, tending to show that he charges them too muoh; but, when it appears that the charges are greater than those ordinarily and uniformly made to others for similiar services, the faot is not only competent evidence against the oarrier, but cogent evidence, and shifts upon him the burden of justifying the exceptional charge. The estimate placed by a party upon the value of his own servioes of property is always sufficient, against him, to establish the real value; but it has augmented probative force, and is almost conclusive against him, when he has adopted it in a long-oontinued and extensive course of business dealings, and: held it out as a fixed and notorious standard for the information of the public. The defendants assume to justify upon the theory that a carrier may regulate his charges upon the basis of the quantity of goods delivered to him for transportation by different shippers, and that their discrimination against the plaintiff is in substanoe one made with reference to the quantity of merchandise furnished by them for carriage. Courts of law have always recognized the rights of oarriers to regulate their charges with reference to the quantity of merchandise carried for the shipper, either at a given shipment, or during a given period of time, although public sentiment in many communities has objected to such discriminations, and crystallized into legislative condemnation of the practice. By the English statutes (17 & 18 Viot. c. 31) railway and canal carriers are prohibited from "giving any undue or unreasonable preference or advantage to or in favor of any particular description of traffic, in any respect whatever," in the receiving, forwarding, and delivery of traffic; but under these provisions of positive law the courts have held that it is not an undue preference to give lower rat.es for larger quantities of freight. Ransome v. Eastem G. R. Go., 1 Nev. & MeN. 63, 155; Nicholson v. Great Western Ry. Go., ld. 121; Strick v. Swansea Ganal Go., 16 C. B. (N. S.) 245; G1"eenOp v. S. E. R. Go., 2 Nev. & MeN. 319. These decisions proceed upon the ground that the carrier is entitled to take into consideration the question of his own profits and interests in determining what charges are reasonable. He may be able to carry a large quantity of goods, under some circumstances, at no greater expense than would be required to carry a smaller quantity. His fair compensation for carrying the smaller quantity might not be correctly measured by the rate per pound, per bushel, or per mile charged for the larger. If he is assured of regular shipments at given times, he may be able to make more economical arrangements for transportation. By extending special inducements to the
HENACHO fl.· WARD.
public for patronage he may be able to increase his business, without a corresponding increase of capital or expense in transacting it, and thus derive a larger profit. He is therefore justified in making discriminations by a scale of rates having reference to a standard of fair remuneration of all who patronize him. But it is impossible to maintain that any analogy exists between a discrimination based upon the quantity of business furnished by different classes of shippers, and one which altogether ignores this consideration, and has no relation to the profits or compensation which the carrier ought to derive for a given quantum of service. The proposition is speciously put that the carrier may reasonably discriminate between two classes of shippers, the regular and the casual; and that such is the only discrimination here. Undoubtedly the carrier may adopt a commutative system, whereby those who furnish him a regular traffic may obtain reduced rates, just as he may properly regulate his charges upon the basis of the quantity of traffic which he receives from different classes of shippers. But this is not the proposition to be discussed. The defendants assume to discriminate against the complainants, not because they do not furnish them a regular busine.ss, or a given number of shipments, or. a certain quantity of merchandise to carry, but because they refuse to patronize the defendants exclusively. The question is whether the defendants refuse to carry for the complainants on reasonable terms. Tile defendants, to maintain the affirmative, assert that their charges are fair because they do not have the whole of the complainants' carrying business. But it can never be material to consider whether the carrier is permitted to enjoy a monopoly of the transportation for a particular individual, or class of individuals, in ascertaining what is reasonable compensation for the services actually rendered. to him or them. Such a consideration might be influential in inducing parties to contract in advance; but it has no legitimate bearing upon the value of services rendered without a special contract, or which are rendered because the law requires them to be rendered for a fair remuneration. A common carrier "is in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonorate himself." NELSON, J., in New Je1'sey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. His obligations and liabilities are not dependent upon contract, though they may be modified and limited by contract. They are imposed by the law, from the public nature of his employment. Hannibal B. R. v. Swift, 12 Wall. As their business is "affected with a public interest," it is subject to legislative regulation. "In matters which do affect the public enterest, and as to which legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable." WAITE,C. J., in Munnv. Illinois, 94 U. S. 113. 134. It is upon this foundation, and not alone because the business
ofoommon carriers is so -largely oontrolled by corporations exeroising under· franohises the privileges which are held in trust for the public benefit, that the oourts have so strenuously resisted their at4 tempts, by special contracts or unfair preferences, to discriminate between those whom it is their duty to serve impartially. And the courts are especially solicitous to discountenance all contracts or arrangements by these public servants which savor of a purpose to stifle competition or repress rivalry in the departments of business in which they ply their vocation. Illustrations are found in the cases of State v. Hartford d: N. H. R. 00.,29 Oonn. 538; Hooker v. Vandewater, 4 Denio, 349; W. U. Tel. 00. v. Chicago d: P. R. 00., 86 Ill. 246; Ooe v. Louisville d: N. R. 00., 3 Fed. Rep. 775. The vice of the discrimination here is that it is calculated to coerce all those who have occasion to employ common carriers between New York and Cuba from employing such agencies as may offer. Its tendency is to deprive the public of their legitimate opportunities to obtain carriage on the best terms they can. If it is tolerated, it will result practically in giving the defendants a monopoly of the carrying trade between these places. Manifestly it is enforced by the defendants in order to discourage all others from attempting to serve the public as carriers between these places. Such discrimination is not only unreasonable, but is odious. Ordinarily the remedy against a carrier is at law for damages for a refusal to carry, or to recover the excess of charges paid to obtain the delivery of goods. The special circumstances in this case indicate that such a remedy would not afford complete and adequate redress, "as practical and efficient to the ends of justice" as the remedy in equity. Watson v. Sutherland, 5 Wall. 74. The motion for an injunction is granted.
NOTE. Where such a corporation, as a common carrier of freights, in consideration of the fact that a shipper furnished a greater quantity of freights than other shippers during a given term, agrees to make a rebate on the published tariff on such freights, to the prejudice of the other shippers of like under the salllecirculllstances, held, such a contract is an unlawful discrimillation m favor of the larger shipper, tending to create monoply, destroy competition, injure, if not destroy, the busmess of smaller operators, contrary to public policy, and will be declared void at the installce of parties injured thereby. Such a contract of discrimination cannot be upheld simply because the favored shipper may furnish for shipment during the year a larger freightage ill the aggregate than any other shipper, or more than all others combined. A discrimination resting exclusively on such a basis will not be sustained. Scofield v. Lake Shore & M. S. Ry. Co., (Ohio,) 3 N. E. Rep. 907. Discriminations in rates of freight charged bV a railroad company to shippers, based solely on the amount of freight Bhipped, without reference to any conditlOnB tending to decrease the cost of transportation, are discriminations in favor of capital, are contrary to Bound public policy, violative of that equality of rights guarantied to every citizen, and a wrong to the disfavored party, for which he is entitled to recover from the railroad company the alUount of freight paid by him in excess of the rates accorded by it to his most favored competitor, with interest on Buch Bum. Hays v. Pennsylvania Co., 12 Fed. Rep. 309. It is held in Ragan v. Aiken, 9 Lea, 609, that in order to secure freight which would otherwise go to a different route, a railroad company may discriminate in rates in favor of persons living at a distance from its route, provided its charges against others
.J4ENACHO 'Il. WABD.
notsimilarly situated is reasonable. The court say: "Discrimination in rates offreights if fair and reasunable, and founded on grounds consistent with public interest, are aIlo.wa1:He. Hersh v. Northern, Cent. Ry. Co."74 1:'&. St. 181; Chicago, etc., R. 00. v. People, 67 Ill. 11; Fitchburg R. Co. v. Gage, 12 Gray, 393. The important p'oint to every freighter is that the charge shall be reasonabte,and a right of action WIll not exist in favor of anyone unless it be shown that unreasonable inequality had been made to his detriment. A reasonable price paid by such a party is not made unreasonable by a less price paid by others; or, as said by CROMPTON, J., to the'plaintiff, upon the trial of such a suit: 'The charging another party too little is not charging you too much.' Garton iV. Bristol & E. Hy. Co., 1 Best & S. 112, tti4, 165; McDuffee v. Portland & K R. K, 52 N. H. 430. In determining whether a company nas given undue preference to a particular person, the ('ourt lIJay look to the interests of the company. Ransome v. Eastern Counties Ry. Co., 1 C. B. (N. S.) 437; [Barber v. Brown,] Id. 135. In other words, if the charge on the of the party complaining is reasonable, and such as the company would be required to adhere to as to all persons in like condition, it may, nevertheless, lower the charge of another person, if it be to the advantage of the comllany, not inconsistent with the public interest, and based on a sufficieut reason." In Johnson v. Pensacola & P. R. Co., 16 Fla. 623, it is held that a common carrier is bound to carry for a remuneration, but is not bound to carry at the same price for all. The court say: .. Our conclusions are that, as against a common or public carrier, every person has the same right; that in all cases, where his COllllUon duty controls, he cannot refuse A. and accommodate E.; that all, the entire public, have the right to the same carriage for a reasonable price, and at a reasonable for the services performed; t,hat the commonness of the duty to carry for all, does not involve a commonness or equality of compensation or charge; that all the shipper can ask of a common carrier is that for the sen'ice pl'rformed he shall charge no more than a reasonable sum to him i that whatever the carrier charges another more or less than the price charged a particular individual may be a matter of evidence in determining whether a charge is too 1lI uch or t,oo little for the services performed, and that the difference between the charges cannot be the measure oC damages in any case unless it is established by proof that the smaller charge is the true, reasonable charge in view of the transportation furnished, and that the higher charge is excessive to that degree. The obligation in this matter must be reciprocal. Where there is no express contract the common-law action by the carrier against the shipper is for a quantum 1neruit, and the liability of the shipper is for a reasonable sum in Vlew of the service performed for him. What is charged another person, or the usllal charge made against llIany others, (the freight tariff',) is matter of evidence admissible to ascertain the value of the services performed. In every case the legality of the charge is established anrl measured by the value of the services performed, and not by what is charge!l another, unless what is charged the other is the compensating sum, in which event it is the proper sum, not on account of its cq uality, but because of the relation it bears to the value of the services performed as an adequate compensation therefor. 'fo sum tile whole matter up, the cOIllmun law is that a common carrier shall not charge excessive freights. It protects the individual from extortion, and limits the carrier to a reasonable rate; and this on account of the fact that he exercises a public employment, enjoys exclusive franchises and privileges, derived, in the case of the defendant here, by grant frOm the state. 'fhe rule is not that all shall be charged equally, but reasonably, because the law is for the reasonable charge and not the eqnal charge. A statement of inequalit.y does not make a legal cause of action, because it is not necessarily unreasonable. It would be a strange rule indeed that would authorize a shipper, atter being compelled to pay his freights accordiugto established rates, to look around and find 'some smaller chargp. for the sallie service during the same time which llIay be either as a gratuity, or a sale of services at a nun-compensating rate, or less than the reasonable charge, and claim his damages according to this difference, based upon an inequality nnt general in its character, but existing only by virtue of a charge made for the same service against one other person."
& MERCHANTS' TEL. CO. OF INDIANA t1. BANKERS' & MaROHANTS' TEL. Co. OF NEW YORK.
(Oircuit OO'Urt, D. Indiana. April 24, 1886.)
One who, under contract with a telegraph company, has strung wires upon the poles of the company, cannot, without an agreement to that effect, retain possession and assert a lien by turning the ends of the wires into the ground. I. BAM_LIEN FOR LABOR-REV. ST. IND. 1881, § 5286. A contractor who is employed by a telegraph companv to put on arms and inSUlators. and string wires on poles, the material to be furnished by the com· pany, at a designated rate per mile, is not an employe within the meaning ot Rev. St. Ind. 1881, $I 5286, and entitled to a lien for the work so done.
1'ELlCGRAPH COMPANlES-CONTRACT TO
PuT UP WIRES-COMMON-LAW
In Chancery. Exceptions to master's report on intervening petition of James E. Vane. WOODS, J. The two questions presented for decision are stated by the master as follows: "(1) Mr. Vane, the petitioner, was employed by the telegraph company to put on arms and insulators, and to string six additional wires, (the company having already four wires in use,) on the poles of the company from Freeport junction, Ohio, to Lake Station, Indiana, 8 distance of 248 miles, for $45 per mile. The company agreed to furnish and deliver to Vane, at the nearest accessible railway stations, all the necessary material for the work. Vane was to do or furnish the labor necessary to string the wires, etc. He did the work. hiring men for the purpose and assisting in person." The master is of the opinion that in doing this work Mr. Vane was an employe of the company within the meaning of section 5286 of the Revised Statutes of Indiana of 1881. "(2) Vane also asserts a right to a common-law lien based upon the following facts. which are not controverted: 'rhe contract with Vane was made in June,1l:!84. November 12. U,84. the work was practically done, but the connections were not made. Mr. Vane kept possession of the wires by refusing to allow connections to be made. and turned the ends of the wires down into the ground. He retained such possession until November 20. 1884, when he delivered possession to the receiver, with an agreement that such delivery was not to impair any rights or lien he might then have by virtue of such possession. He had such possession when the order allOWing the issue of recpiver's certificates was made, and also when the certificates were issued, November 11, 1884. I n'port and find that, by perfecting his claim for a lien under the statute, Mr. Vane waived the right, if he had any, to assert his, commoll-Iaw lien" In the opinion of the court, the petitioner had no lien at common law (lr in equity, and was not an employe of the telegraph company within the meaning of the statute referred to by the master. That statute provides that "the employes of any corporation doing business in this state shall be entitled to have and hold a first and senior lien upon the corporate property, and the earnings thereof, for all work and labor done by sueh employes for such corporation." To be entitled to the benefits of this. statute, and others of like character since