In this case a given rate for transportation, and for like services under substantially the same circumstances and conditions the defendant had charged another a less given rate, or that plaintiff was charged more than the schedule rate. Kinnavey v. Terminal Railroad Association, 81 Fed. Rep. 802. it was held by Adams, J., of the eastern district of Missouri, that it was not necessary for the complainant to set out the facts showing that the conditions were similar, but that it was sufficient to allege the ultimate fact in the language of the statute. The payment of an overcharge in such case is not a voluntary payment precluding recovery. L. & N. Consolidated R. Co. v. Wilson, 132 Ind. 517 and 18 L. R. A. 105. See also Murray v. Chicago & Northwestern R. Co., 35 C. C. A. 62, 62 Fed. Rep. 24, 92 Fed. Rep. 868. It was held that an action by a shipper against a carrier for unjust discrimination in the imposition of freight charges paid by plaintiff, lay at common law, regardless of fraud. In Wight v. United States, 167 U. S. 512, 42 L. Ed. 258, the conviction of a railroad agent for violation of this section in granting a rebate, was affirmed. In Union Pacific Railway Company v. Goodrich, 149 U. S. 680, 37 L. Ed. 896, the Supreme Court affirmed the judgment rendered in the Circuit Court under a Colorado statute for an unjust discrimination in intrastate traffic, wherein the damages were measured by the amount of the rebate allowed a competitor. The court said that the plaintiff was entitled to the same terms which the favored company received, and damages to the exact extent to which that Company was given the preference. It constitutes no defense in discrimination between persons that the privilege may be withdrawn at will. Butchers & Drovers Stockyards Co. v. Railroad Co., 14 C. C. A. 290, 1. c. 297, 67 Fed. Rep. 35. $170. Enforcement by injunction. It is now established, especially since the recent Elkins Act, passed February 19, 1903, infra, $310, that a court of equity has jurisdiction at the instance of the Government to restrain a railroad from discrimination in rates (see opinion of Grosscup, J., Northern District of Illinois, 122 Fed. Rep. 544), in suits filed by the Government against a number of railroads restraining them from departing from their established tariff rates on the trans portation of grain and grain products, dressed meat and packing house products, and any other interstate traffic in which they might be engaged. In this case, United States v. Michigan Central Railroad Co. et al, the court said discrimination of the character alleged in the bill was contrary to the plain provisions of the Interstate Commerce Act, and that upon it criminal prosecutions could be maintained, and each grain grower could individually maintain a civil suit for such damages as he might show, and that where the remedy at law was inadequate, a remedy in equity must exist. As to the right of the Government to maintain such a suit, see infra, § 249. $171. Effect of rebates upon contracts of affreightment.In Merchants Cotton Compress Co. v. Insurance Co., 151 U. S. 368, it was held, that there was nothing in the Interstate Commerce Act which vitiated bills of lading or which by reason of the allowance of rebates actually made would invalidate a contract of affreightment, or exempt the railroad company from liability on its bills of lading. This was a suit of an insurance company which had paid losses claiming to be subrogated against the railroad company on bills of lading issued to the owners and consignees of cotton. It was not shown that the owners or consignees of the cotton had knowledge of the rebate. § 171a. Discrimination in allowance to private transfer companies. The railroads operating west from St. Louis made the rate on west bound traffic from East St. Louis the same as from St. Louis, and out of this rate allowed five cents per hundred pounds to transfer companies hauling less than carload lots from East St. Louis to St. Louis. The Commission (10 I. C. C. R. 661), without deciding whether the railroads could properly apply the St. Louis rate to the station of a bona fide transfer company in East St. Louis and absorb the cost of transfer to St. Louis, nor whether by proper schedule they could allow all shippers from East St. Louis a fixed sum per hundred pounds for transporting their merchandise to the stations in St. Louis, ruled that an allowance from the rate could not be made to a carrier company which was in effect only a private carrier organized and doing the business of one shipper, as such payment would be in effect a rebate to such shipper. (See supra, § 160.) SECTION 3. Page § 172. Sec. 3. Undue or unreasonable preference or advantage forbid 175. Preferences of localities enforced by competition are not un just......... 215 216 176. Application of the competition rule 177. Whether competition is controlling is a question of fact...... 216 178. Discrimination between domestic and foreign traffic in import and export rates not unjust preference.... 217 179. Application of the import rule to intermediate points on the line................ .. 219 180. Competition created by carriers.. 182. Grouping of rates...... 183. Qualifications in the application of the competition rule..... 184. Recognition of natural advantages of localities not an unjust preference................. 220 221 222 224 226 188. Unjust discrimination in time of closing freight stations.. Exclusive use of excursion or sleeping cars of one owner ... 236 193. Leasing of cars does not carry right of exclusive use by owner. 236 194. Stoppage in transit privileges...... 236 195. Interference by State Railroad Commission with proportional tariff rates. 237 196. Side tracks and connections..... 238 197. Undue preference in denying shippers the choice of route...... 240 198. Undue preference in arbitrary division of territory...... 199. Rate wars and undue preferences.... 201. Preferences against traffic, must involve injury.............. 202. A reasonable regulation of carload weights not preferential... 245 203. Differentials between grain and grain products..... 246 204. The Commission not concluded by ruling of State Commission. 247 205. Discrimination in mode of shipment... 247 206. Classification..... .. 248 207. Consultation of carriers in classification not illegal combination. 249 208. Undue preference in classification...... 249 209. 210. Power of Commission in correcting classification... 251 252 § 211. Facilities for interchange of traffic.... 212. Exacting prepayment not unjust discrimination.... 213. State control of interchange of interstate traffic.. 214. State and municipal control of terminais. ..... 253 254 254 255 216. 215. The charging of local rates not an unjust discrimination... 256 The right of exclusive through routing. 257 258 217. Contract rights of trackage. ... 218. Rights of connecting carriers as to milling in transit privileges. 259 § 172. Undue or unreasonable preference or advantage forbidden.-SEC. 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. Every common carrier subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines; but this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business. § 173. Origin of the section. It was said by the Supreme Court in the Import Rate case, 162 U. S. 197, l. c. 222, 40 L. Ed. 940 that this section was modeled upon the second section of the English act, for the better regulation of traffic on railways and canals, of July 10, 1854, and the eleventh section of the act of July 21, 1873, entitled "An Act to Make Better Provision for Carrying into effect the Railway and Canal Act of 1854, and for other purposes connected therewith." Section 2 of this English act of 1851 is as follows, 17 and 18 Vic. c. 31: "2. Every railway company, canal company, and railway and canal company, shall, according to their respective powers, afford all reasonable facilities for the receiving, and forwarding and delivering of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats, and other vehicles, and no such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatsoever, nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever; and every railway company and canal company, and railway and canal company having or working railways or canals which form part of a continuous line of railway or canal, or railway and canal communication, or which have the terminus, station, or wharf of the one near the terminus, station, or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding all the traffic arriving by one of such railways or canals by the other, without any unreasonable delay, and without any such preference or advantage, or prejudice or disadvantage, as aforesaid, and so that no obstruction may be afforded to the public desirous of using such railways or canals, or railways and canals as a continuous line of communication, and so that all reasonable accommodations may, by means of the railways and canals of the several companies, be at all times afforded to the public in that behalf." Section 11 of the English act of 1873, 36 and 37 Vic. c. 48, re-enacts section 2 of the English act of 1854, and provides specifically for the enforcement of the duty of receiving, forwarding and delivering from and to other companies. For history of this second section of the English act of 1854, see opinion in the case of L. & Y. Railroad Co. v. Greenwood, Law Reps. 2 B. 217, 218. The equality clause of the Railway Clauses Consolidation Act of 1845 had been construed by the courts to mean equal rates for the carriage of goods over the same portions of the line, and did not apply where the places over which the goods were carried were not the same; and this restricted application led to the more comprehensive provisions of the act of 1854. It will be seen that section 3 of the act of Congress to regulate commerce inserts the word "locality", which does not appear in the English act, so that any undue or unreasonable preference or advantage is prohibited to any particular person, firm, company or corporation or any locality, or any particular description of traffic. The effect of the English cases construing the preference branch of the English act were thus summarized by Judge Jackson in his opinion in the Party Rate case in the Circuit Court, 43 Fed. Rep. 37, (affirmed by the Supreme Court in 145 U. S. 263, 36 L. Ed. 699), quoting from a report of the English Amalgamation Committee of 1872, page 130, as follows: "The effect of the decisions seems to be that a company is bound to give the same treatment to all persons equally under |