fact raised, as the deception could not be imputed to the railroad company. But when the privilege is extended, it must be extended to all in the same conditions and "similarly situ ated." See infra, section 3.

The mere fact of the payment of a local rate to the manufac turing or compressing point is not material, if there was from the first an agreement that the property should be entitled to the privilege, and it goes forward from the compressing or manufacturing point upon a through bill from the point of origin to the destination.

Another application of the milling in transit privilege was illustrated in 10 I. C. C. R. 193 in the making of a through rate on lumber with allowance of a proportion of a rate for cost of moving the lumber by a "tap line" from the forest to the mill. The Commission held that this allowance could only be made to another common carrier, and could not be granted to a shipper as compensation for cost of moving the lumber to the mill.

In Lemuel Cotton Mills v. Gulf & S. I. Railroad Co., the Supreme Court of Mississippi in June, 1904, 37 So. Rep. 134, sustained a right of recovery, that is, it held a petition not demurable under a contract by a railroad with a manufacturer about to erect a cotton mill to give it a milling in transit rate not exceeding certain rates to certain competitive points. The court adopted and followed the opinion of the Commission in the lumber tap line case above cited as to the legality of a milling in transit rate.

§ 164. Unlawful discrimination through abuse of stoppage in transit privileges.-While the Commission has recognized and approved the allowance of through rates in cases of stoppage in transit for purpose of milling wheat into flour and compressing cotton, so as to facilitate the movement of the great staples of the country to market, this privilege has been sought to be applied to cases where there was no manufacture or compressing, but where the effort was to secure a through rate when property was stored for a time at an intermediate point on the through line. Thus shipments of grain were carried to Kansas City from points west thereof at local rates, and afterwards shipped and rebilled from Kansas City to Chicago at the balance of the established through rate

from the original point of shipment to Chicago. There was no agreement for the through carriage between the shipper and the carrier at the original point of shipment, but the practice was to allow the consignee or other owner of grain at Kansas City to ship from Kansas City to Chicago and other points at the balance of the through rate upon presentation of the paid expense bill to Kansas City. The Commission held that such shipment and re-shipment did not constitute a through shipment from the point of origin to the final point of destination, and that the grain so shipped and re-shipped was not entitled to the benefit of the through rate in force and that the shipment from the point of origin to Kansas City was local, resulting in the grain becoming Kansas City grain, and the fact that it had come from a point further west was no reason for applying on shipments of such grain from Kansas City any less or different rate than was in force from Kansas City. The Commission held that an indispensible element in every through shipment was the same-a contract for such through service, and an agreement between the parties at the inception of the carriage from the point of shipment to the destination at the through rate. 7 I. C. C. R. 240. The same ruling was made in the case of a cattle shipment. 3 I. C. C. R. 450, and 2 Int. Com. Rep. 721.

Any devices therefore for securing a through rate where the shipment is not in fact a through shipment, when specifically allowed the milling in transit privilege on facts not justifying. the same, would be an unlawful discrimination and violative of this section. See § 194, Stoppage in Transit Privileges.

§ 165. Unjust discrimination in passenger service. Unjust discrimination is prohibited in the transportation of passengers, as well as other property. This section however does not prohibit separate cars for the white and colored races, provided cars and accommodations equal in all respects are furnished to both and the same care and protection of passengers observed. 1 I. C. C. R. 428, 1 Int. Com. Rep. 719. See also 1 I. C. C. R. 208, 1 Int. Com. Rep. 611.

When a railroad company makes a reduction from regular passenger fares which are not found unreasonable, it may lawfully require that a person desiring to avail himself of such reduction shall purchase a ticket and that all persons not holding

such reduced rate ticket shall pay the reasonable ordinary fare. 10 I. C. C. R. 217. For alleged discrimination in parlor car rates as between through and local passengers not sustained, see 10 I. C. C. R. 221.

The regulation published on regular tariff sheets that the conductors shall collect 25 cents additional fare on trains from passengers without tickets was not an unjust discrimination. 3 I. C. C. R. 512, 2 Int. Com. Rep. 766.

§ 166. Giving passes to shippers prohibited. A railroad official who gives a pass for interstate transportation as a matter of personal favor, not within any of the exceptions contained in section 22, violates sections 2 and 3 of the act. Charge to Grand Jury (N. Dist. of Cal.), 66 Fed. Rep. 146. One riding on a pass and assuming all risks of accident is bound thereby and cannot recover, and it is immaterial that the pass was issued in violation of the act. Duncan v. Maine Central R. R. Co., 113 Fed. Rep. 508.

It has been ruled by the Commission that the giving of free. transportation to shippers, 7 I. C. C. R. 92, or any free transportation other than that allowed by section 22 of the act is illegal. 2 I. C. C. R. 359 and 2 Int. Com. Rep. 243.

The Supreme Court has in recent cases sustained the validity of stipulations in railway passes against liability for injuries, where parties accept the passes with knowledge of such conditions. See Northern Pacific R. Co. v. Adams, 192 U. S. 440, 48 L. ed. 513, and Boering v. Chesapeake Beech R. Co., 193 U. S. 442, 48 L. Ed. 742.

§ 167. Application of the section.- This section only deals with the discrimination, which consists of the charging one person with a different compensation than is charged another for a like and contemporaneous service for the transportation of a like kind of traffic under substantially similar circumstances and conditions. Forms of discrimination which relate to the furnishing of facilities, such as car service and the like, are prohibited by the more comprehensive language of section 3, infra.

The mere fact of the payment of a rebate may not constitute "an unjust discrimination" at common law, or under the statutes, at least prior to the amendment of 1903. Thus it was held in a recent state case, Lemuel Cotton Mills v. Gulf, etc.

R. Co., 37 So. Rep. 134, by the Supreme Court of Mississippi, that if there is no unjust discrimination, an agreement by a carrier that they will carry goods at a certain rate and repay the shipper a part thereof as a rebate after the shipment, is not illegal and the rebate may be recovered by the shipper in a proper case. But under the publication of rates required under section 6 of the Interstate Commerce Act and especially in view of the provisions of the Elkins Act of February 19, 1903 (infra), any deviation from the published rate constitutes an offense. If a rebate therefore is paid to one, it must be paid to all under similar circumstances, and the rebate must be a part of the published tariff.

In the Beef Trust case, Swift v. United States, supra, the bill alleged that the defendants as a part of their unlawful combination for monopolizing the market, were obtaining arrangements with the railroads whereby by means of rebates and other devices they paid less than the lawful rates for transportation. The Supreme Court said that this did not necessarily charge unlawful acts, as the defendants might severally lawfully obtain less than the lawful rates for transportation if the circumstances were not substantially dissimilar for which the regular rates were charged, as if they furnished their own cars, for instance, and there were other differences in the service. But as the charge was made in connection with the alleged attempt to monopolize the market in violation of the Anti-Trust Act, the court said that no more powerful instrument of a monopoly could be used than an advantage in the cost of transportation, and that every act done with the intent to produce an unlawful result is unlawful. The charge was therefore held material in connection with the other charges in the bill (See supra, § 68).

This section of the statute has no application where the traffic is of different kinds and classes not competitive with each other. 8 I. C. C. R. 531 and 5 I. C. C. R. 193, 3 Int. Com. Rep. 841. There is no discrimination under this section in the case of impartial action. It must consist in doing for or allowing to one party or place what is denied to the other. 1 I. C. C. R. 401, 1 Int. Com. Rep. 703. A like kind of traffic within the meaning of this section does not mean traffic that is identical, but a kind that is capable of

a fair and just classification. 4 I. C. C. R. 447, 3 Int. Com. Rep. 417. The section has no application to terminal charges in different cities, 7 I. C. C. R. 513, nor is there any unjust discrimination involved in the refusal to pay mileage to a private car company. 1 I. C. C. R. 132, 1 Int. Com. Rep. 329. Discriminations based solely upon the business motives of the shipper are illegal. 6 I. C. C. R. 85.

$ 168. Retention of overcharge. The Interstate Commerce Act does not recognize indefinite or uncertain transportation charges. The idea of unequal compensation for like service, or discrimination in the treatment of persons similarly situated, is repugnant to every requirement of the law, and a party to an interstate shipment cannot be excluded by the carrier from the privileges afforded to other patrons in the same locality because of his refusal to pay excessive freight charges, even though an agreement to subsequently refund the excess should accompany the demand. 6 I. C. C. R. 36. The retention of an overcharge has all the effect of extortion and unjust discrimination and when the refund of an excessive charge has been unnecessarily delayed for a considerable period the officials responsible therefor become fairly chargeable with wilful intention to violate the law.

In Ohio Coal Co. v. Whitcomb, 123 Fed. Rep. 359, Circuit Court of Appeals, 7th Circuit, an extra charge of two dollars per car made to one shipper for access to the docks, was held under the facts to be discriminative under the Wisconsin statute, and an agreement by the shipper to pay the discriminating charge in order to obtain the service to which it was legally entitled without such charge did not estop him from maintaining a suit to recover back the sum so paid.

169. Enforcement of the section. The section has no application to cases occurring before the Act was passed, 1 I. C. C. R. 144, 1 Int. Com. Rep. 607, that is, so far as the penalties imposed by the other sections of the Act for violation of its provisions are concerned. It has been held however that contracts for rebates made before the Act went into effect were thereafter incapable of enforcement. So. Wire Co. v. St. L., etc. R. Co., 38 Mo. App. 191.

In a suit to recover damages for alleged discrimination, it is sufficient to allege that the defendant had charged plaintiff