Pennsylvania Railroad v. International Coal Mining Co.

1912. Syllabus. 230 U. S. v. IN- RAILROAD COMPANY PENNSYLVANIA TERNATIONAL MINING COMPANY. COAL OF THE TO THE CIRCUIT COURT APPEALS FOR ERROR THIRD CIRCUIT. February 28, Argued 27, Reargued 1912. 14. 1912.—

No. November Decided June Regulate the Act to Commerce while Under reasonableness rates upou permissible based and differences discriminations condilions Commission, matters for administrative are the courts have jurisdiction to determine whether differentials can be allowed commodity traffic, same under similar conditions of on disposition in the commodity. account of differences of the only charge published A rate carrier can for the same article and pay any part cannot back pre- when collected thereof under equitable, tense, any shipper every skipper; or to however passage Hepburn held that carriers could not after the so Act shippers pursuant give arrangements rebates to continue made shippers prior act merchandise had contracted to that time. sell before force, tariff, long published

A so as it is has the effect of a statute and shipper. on carrier and binding alike published departure by tariff While from a is forbidden the Act Regulate by §§ Commerce 8 thereof the carrier is liable injured for person sustained, .damages, such must proved merely to be are measured the difference be- paid published complaining rate shipper tween the and the given shipper. more favored lower rate to a While, explain they may be at to looked expressions -doubtful in a statute, reports, not even formal much the language less of a member committee, purpose of the can be resorted to for the construing plain contrary terms. statute to its Regulate many respects While the Act to Commerce is in highly penal damages in is no fixed shipper compelled there measure favor of a published pay competitors tariff rate while his favored are a lesser given rate means rebates. .Neither American nor * authority English decisions arc for such rule as to the measure of damages. imposes Regulate Act to Commerce on the heavy carrier penalties CO. COAL CO. INTERNATIONAL

PENNA. E. E.. r. Statement Case. ¡índ independent of the payable to for its Government violations dorrs; to evil but for is thus terror paid, and of rebates amount compensa- private injury inflicted the by is wrongs private by shipper is by injured measured tion recoverable proved. actually and sustained 1, Rep.

173 reversed. Fed. in Mining Company shipped Coal International The Penn- 190,655 tons of coal over the commerce interstate 1, 1894, 1,1901. and April April between sylvania Railroad $37,268, being carrier for difference sued the In it and lower by plaintiff rates paid the rates between coal rebates allowed other dealers making from resulting point from same the same road shipments like over destination. same th% open published carrier collected its 1899 the Prior to from coal the Clearfield persons shipping from' all however, It, practice made Pennsylvania. District on the rebates, admits face of plaintiff and paying of from 10 to it received rebates complaint its that however,'that consignors It other alleges, ton. per cents ton, 45 cents and the claim made per from 15 to received to the plain- due the defendant by the further rebate “for by defend- paid excess of the rebates heretofore tiff in shipments^” on account of said plaintiff ant to the trial these for rebates During claims additional on by shipments prior to eliminated the court. 1889 were involved plaintiff’s The then question left the case been having on account of rebates allowed right recover 1899, 1, after on what was called companies April other no plaintiff coal.” The had contracts which “contract 1, 1899, claimed to overlapped April have learned 1904, being after made. It January, allowances brought this suit the rebate or difference thereupon shippers the low rate of contract coal between' allowed paid 41,000 rate on tons. plaintiff lawful count the complaint, There was second alleging (cid:127) TKRM, of the Case. Statement plaintiff charged excessive freight the trans- portation plaintiff’s coal, it charged sums varying per 15 cents ton to 45 cents per ton excess of a said reasonable'charge, defendant “is liable to pay $37,268.85 said sum of with interest thereon from the time of the overpayments, brought said and this suit is recover the said sums of money.” proved the number of tons in each shipment it April,

made between April, 1901, and that rate full tariff It paid the thereon. also proved in- shipments terstate had been made other coal companies dates from and points same to the same and that such on their companies “contract coal” had paid 5, 10, ton, 'rebates 35 cents per depending upon between difference the rates when shipment was made and in force on those the dates of the various contracts appear sale. It did not how many tons had been shipped companies, many these nor on how they tons paid per had been 5 cents or ton, many on how 35 cents or per the intermediate ton, figures. There was evidence that the Berwind-White Company received no rebates on its shipments, coal, per being cent free but that it did cent, on the receive rebates per which was remaining contract coal.

In as addition to evidence payment of such re- that, bates, testirhony there was the Railroad Co. had also made lateral and terminal allowances to some shippers at, without the same time making lateral or terminal it plaintiff, allowances was claimed that these unjust, allowances were discriminations and amounted rebates, payment inasmuch as there was no such in. dissimilarity condition shipments between by such companies and made by those the. plaintiff as would justify the payment making to- them without similar payment to the plaintiff. n The defendant admitted the difference in treatment, but COAL R. CO. R. CO. v.'INTERNATIONAL PENNA. of the Case. Statement difference in condition. justified

claimed that was for did not allow the services The railroad cars between empty loaded hauling railroad .and it paid mine, but claimed Altoona nearby its for ton sérvices loaded hauling 18 cents per Company mine and the railroad station. empty cars between evidence to show that offered Altoona The carrier line, the main which' was mine was 4 5 miles from heavy having very grades, track or road by spur reached over which it curves,- and three was switchbacks- sharp Pennsylvania engines be s.afely for the impracticable amount paid operated. There was evidence that hauling for of cars was reason- such Company Altoona able. paid the Berwind-

It admitted also that the carrier was Clearfield from the Company, shipper another White charge furnishing the New District, a terminal to unload labor, machinery pier power York was, evidence that cus- the cars. There dump for such New York tomary charge allowed services harbor. allowances, no ruling

There distinct these not as undue evidently payments, the court treated these rebates, transportar as compensation preferences but. hauling cars to shipper rendered tion services pier New York. the mine and for service on and from treat could these initial charge He to that the jury refused unjust or as discrimina- allowances as and terminal rebates measuring could be they considered tions, .that entitled. plaintiff might which damages to 1899, to and these items April 1, prior The items eliminated, having been terminal allowances initial and to to jury determine the amount case was submitted consequence to recover was entitled plaintiff coal,” no such of rebates on. “contract payment admitted on shipments made to the its being plaintiff payments 1Ó12. . Argument for Plaintiff in Error. 230 U. S. (cid:127) “free coal.” some There was evidence as to the com- mercial value able being ship- contract at the coal original freight rate and an estimate of the profits would been have derived had the same rebates been allowed if plaintiff. What, any, verdict could have based theory on this not submitted was to the jury, the charging court rebates had where been allowed other companies, plaintiff “would be entitled to recover (cid:127) Railroad the difference returns." 23, On-May 1908, the found jury plaintiff Both $12,013.51. parties verdict of moved for a new trial excepted both the court’s refusal to set aside the Fed. Rep. verdict. -162 996. The Circuit Court of Ap- peals the judgment. affirmed Fed. Rep, The In- Coal Company ternational accepted the decision. But Pennsylvania Company brought Railroad the case here error, in which, among many writ of other assignments complains it error, the court’s refusal to charge that the plaintiff recover, “to entitle the jury must be satisfied that some sustained loss or injury due fact that the defendant carrying, time, was at the same rates, coal shipped lower other shippers.” I. Mr. Francis Gowen, with whom Mr. Frederic D. brief, -for McKenney error: In the light the principles established in Tex. & Ry. Pac. Co., Co. v. Abilene Oil 426, Cotton Balt. & Ohio R. Co. R. v. Pitcairn Coal Co., 215 U. S. the application made of those principles ixi the facts Robinson Baltimore & Co., Ohio R. R. 222 U. S. the Circuit Court not possessed of the requisite jurisdiction to consider and determine underlying and basic issue involved the present case.

A court is not proper tribunal set aside or annul tariff rates of carrier. Tins power belongs exclusively . PENNA. R. R. v. INTERNATIONAL CO. COAL CO. Argument U. S. for Plaintiff in Error.

to the Interstate Commerce and Commission, it neces- sarily follows that courts cannot relieve indirectly shippers from controlling effect such by rates permitting any portion or, recoveries either of thereof what is equiva- their, thereto, lent because of exaction, until shipper least the has' been binding relieved force of such rates action of A the Commission. tariff binding rate is as well upon shipper carrier. obligation The is is, observe the same absolute and effect, statutory character. in error in present case, therefore,

bound chárge collect, the defendant error was bound to which rates were pay'the actually charged ' and paid. Both so parties, then,.being bound,.an action cannot be maintained one to recover from the other damages claimed to have been sustained because of the payment made, demanded when this payment repre- charge sented a legally obliged party one to make and other legally obliged one See pay. of6 the Interstate Commerce Act.

The Interstate Commerce Commission in in many unlawful, stances has condemned as because unreasonable from, or discriminatory, rates which have been exacted shippers,v reparation while at the sanie time denying Copper Co., them. Anaconda Co. v. C. & E. R. R.

I. C. C. Rep. International Salt Co. v. Penna. R. Rep. R. 20 I. C. C. Co., 539.

If the Interstate Commerce Commission has been em powered charges to determine whether of a carrier are unduly discriminatory unduly preferential, a like cannot be exercised power courts. As a matter of By law such power possessed the Interstate Commerce Commission. Int. Com. Del., Comm. v. Lack. & West. R. R. Co., 220 U. S. 235.

The payment by carrier one of an unlawful shipper rebate does give shipper right another action 1912.

Argument Plaintiff in Error. 230 U. S. Commerce Act to Interstate like rebates under the recover on his shipments. confers, 8 Commerce Act which and defines

Under § of, of’action can right the character asserted the because of by violations carriers any pro- shippers act, that is right the limited to the or “person visions of recovery the persons injured,” “damages the sus- v. & N. W. Ry. Co., Parsons Chi. 447. tained.” 167 U. S. carrier'unlawfully refunds to a shipper If any part rate, it thereby violates the tariff Interstate Com such unlawful act Act, merce but cannot be made the at the instance of another shipper, basis of an action is to it purpose compel repeat original of which its act, in order such shipper may violation of the secure of a also the benefit concession rates which terms of act the carrier is from prohibited making, the' receiving. he from The same true cases under . Pennsylvania act of discrimination See Hoover v. Pa. St. Co., Penna. R. R. injury “amount of suffered” is measure

single damages to be allowed. But it does not at all follow injury that the amount of suffered is the difference in the charged. might might be, It it not be. in any but event it must be a subject proof, and-there was no proof actual Un. damage the case sustained. Pac. R. R. Co. 149 U. Goodridge, 680, distinguished, v. S. as that case turned on statute of Colorado which contained special made, provisions to the effect that if the carrier concessions shippers rebates must extend them to all shipping under the same circumstances and conditions. damages,

No are recoverable a carrier which has violated provisions the act by charging unequal shipper seeking rates unless the can establish him injury that actual resulted to from such violation. Copper Co.; Anaconda Co. & E. R. v. C. R. Int. Salt Co. v. Co., R. supra. Penna. R. R. R. CO. INTERNATIOLAL

PENNA. COAL CO. n Argument in Error. Plaintiff If right of action asserted present in the case is maintainable, it does.not extend all shipments made by the defendant in error in period un- which the lawful rebates on paid coal, were contract regard without consideration that these were rebates not paid all shipments shippers coal, contract shipping only on the portion thereof which represented contract coal.

This question has with or dealt determined. by any'court country. It was considered Denaby Colliery courts Co. v. English Manchester &c. Cas. 97, L. 11 and App. R. while some of Ry. Co., thé court weré of the opinion that overcharges amount paid Colliery by Company was to with ascertained reference the volume shipments had been rate, carried at application the lower a such rule will not work nor results, out tend equitable to secure an equality of charge.

. A like within the of 2 service, meaning Inter § Act, state Commerce is not by rendered a carrier in the transportation from the" same district a point common of shipments through joint which move over a made line up of its own line and that of another carrier, ship ments only which move over the carrier’s own Rail line. way Osborne, Rep. Co. v. 52 Fed. Tozer 912; United v. States, Ry., 52 Fed. Rep. 917; Chicago Parsons &c. 3 v. 6 Fed. Rep. 903; Ry. Comm., Detroit Co. Int. v. Com. Fed. Co. 12 I. Rep. 803; Loup Colliery Virginia Ry., v. C. C. Rep. 471; Rapids Ry. Ry., Cedar Chicago v. &c.

I. C. Rep. 250, 255; 124; Drinker on Int. Act, Comm. § C. Judson on Int. Comm., 245. §

To same effect are: Beale & Rate Railroad Wyman, Comm., Regulation, Nelson on §943; 70; Int. Com. p. Barnes on Int. Transp., D. also See paragraph § Railroad, v. I. C. Rep. 301; C. Missouri Ass’n Griffee v. K.M., Ry., & T. 12 I. C. C. Rep. 483. OC'i BEo It 1912.

Argument Defendant for Error. English A was followed courts, like rule L. (1906), Co. 2 K. B. Taylor Metropolitan Ry. R. Div. A court not bound effect give Federal judicial a Tt is at liberty ignore sale made state court. in its the state statutes if, judgment, sale under which proceeded the state court to decree and make the sale did not authorize a sale of the or ef- particular'property fect sold. Jr., A. Glasgow,

Mr. William with whom Mr. James brief, IF. M. Newlin was on the for defendant in error: brought The action was the Circuit Court United illegally States to recover sums collected by the defendant carrier from the plaintiff shipper, which sums wore ('ommerce. to be 2 of illegal by Regulate declared the Act to

The defendant that section charging violated greater from collecting compensation coal it charged than transportation collected doing “for . . persons other . them a like contemporaneous transportation'of service like kind of traffic under substantially similar circum- stances and conditions.” Action was in the brought (‘rrcuit Court the United act, States under 9 of the § damages provided by recover for charging §.8 “ the sums declared to be unlawful” by 2 of the act. The § plaintiff did complain the Interstate Commerce ('ommission. jury

The a verdict for rendered an- amount equal charges the excess collected from the plaintiff over charges above other contemporaneously persona for service. Judgment like was entered the Circuit Court The Circuit Court of Appeals ..verdict. affirmed the judgment, the case is here re- now ' view. PENNA. R. R. CO. INTERNATIONAL COAL CO. v. Argument for Defendant in Error.

The plaintiff right had the proceed to. with its action Circuit Court without Inter- complaining state Commerce Commission in .the first instance.

A complaint to the Interstate Commerce Commission first only instance is required under the Act to Regm late Commerce where “there involved a question administrative discretion.” L. N.& R. R. Co. v. Cook Co., Brewing 223 U. S. 70 .

When shown, it-is case, act has § violated the carrier, then is no there “question administrative discretion” involved, as there was Abilene Cotton Oil Company Case, for 2 426, U. S. § of the act itself declares the carrier of unjust dis “guilty crimination, which is hereby prohibited declared to be unlawful.”

Section 2 defines “unjust discrimination,”, unlike 3, relieves the § Interstate Commerce Commission from duty determining in the exercise its discretion whether certain acts therein forth set amount to “unjust discrimination,” by declaring that unequal’ charges under is, as similar'circumstances of law, matter dis- “unjust crimination.”

Under .every shipper is entitled “under similar cir- § cumstances and conditions” equality charges like service.

When the carrier violated the act by charging'plaintiff “greater compensation” for contemporaneous like service than it charged others, then the was deprived of its right to statutory equality charges, “un- by the lawful” act of defendant, and by 8 plaintiff was en- § titled to recover .“the full amount of sus- tained.” plaintiff’s measure of damages was such an amount

as would put plaintiff upon the basis of equality charges 2. See I. assured to it C. B. & C. O. R. Co., U. S. at page 270, with Mr. quoting approval, Jus-

vol. ccxxx:—43

194 1912. Opinion the Court. S.U. tice in Great Blackburn, Western Co. v. L. R. Ry. Sutton, “ 239, H. L. 226, as follows: When it is to sought show is charge extortionate, being the statut- contrary ory obligation charge is immaterial equally, whether charge is reasonable or not; it is enough show carried for company some other or class person persons charge at during period throughout lower which party complaining charged under the more like circumstances.”

In the case Great Sutton, Western Co. Ry. at supra, p. 238, Mr. Justice Blackburn said: I think it also “And follows from if this that do charge defendants more' person one than during they time to others, is charge by virtue the statute extor- tionate.”

In enacting of the Interstate Act, Commerce § was substantially taken from 90 of English Railway Clauses Consolidation Act of 1845, Congress intended to incorporate into the statute the construction given to said section by English courts. I. C. C. B. v. & O. R. R. Co., at page D., I. C. C. v. L. & 284; W. R. R. Co., 220 U. S. page

If the excess charge plaintiff by carrier was extortionate, deprived it of its statutory right, it is submitted that at least the entitled recover the amount unlawfully extorted from it.

Mr. Lamar, making Justice after the foregoing state- ment, delivered the opinion of the court.

The International Coal Company operated a mine in the Clearfield District and, with its competitors, shipped' between 1890 and large quantities of coal in interstate commerce. 1904 it Pennsylvania In sued the Railroad Company, basing its action, part, on the fact prior to April 1, Railroad 1899, the had Company paid other E. E. CO. INTERNATIONAL PENNA. COAL CO. Opinion of U. S. the Court.

(cid:127)230 rebates from Í5 to 45 shippers cents per ton, while a paying rebate 10 to plaintiff only 'ton.' per cents Its claim a sum equal difference between the to it and that paid given rebate other shippers was elim- inated on the judge ground the trial that “courts do not sit to in degree measure the difference violation of the law in of one party favor other. The question that money value each them received in their violation of law will not into, be looked . . . not defendant, for the purpose relieving but because the . . just culpable as . and as much a violator of the law as the defendant.”- case,

In view this as ruling, finally submitted to plaintiff’s right involved jury, recover account of shipments 1,1899. made after April On that date the carrier increased the rates and discontinued the payment rebates, that for except purpose saving shippers loss, against it difference made a between what is called. “free coal” and “contract coal.” Under this practice, where "coal had been sold for future delivery, the carrier rate, collected the tariff published the differ- rebated between and the ence it lower rate force when contract had been sale made. 1, When after April 1899, the plaintiff applied its allowances, demand with rejected, all statement that its contract coal protected would be manner others in the Clearfield District. The International Coal Company had no or unfulfilled overlapping contracts and claiming that did not learn of the practice protect such con- it until, 1904, tracts brought suit'. proved It April 1899, between 1, 1, 1901, it had April shipped about 40,000 on which it had paid full tariff rate, tons companies- while other' shipping to the same n placesat the had same time been allowed on their contract 15, coal rebates of 25 or per 85 cents ton'. Plaintiff recovered verdict. 1912. Court, 230 ü. S. Opinion of'

. no question court below Railroad made In the it insisted argument But on here jurisdiction. with instructions dismiss be remanded the case should that courts had no ground power complaint upon as to whether question administrative adjudicate the ship- rate between could difference carrier make argued It a. coal. this was ments of free and contract Commission, it was for the and'that rate-making question not body, only to determine rate-regulating as whether the existed, the rates dissimilarity properly a whether were but. adjusted that dissimilarity.. to meet there are many the statute acts the carrier

Under according they lawful or unlawful as are which are reason- or unreasonable, just unjust. able The determination such a .rate comparison issues involves with service, and for an discretion of the calls exercise the adminis- For rate-regulating body. trative and reasonableness discrimination rates, permissible upon and based in conditions of law-. far are matters So difference jurisdiction depends upon facts, as no the determination has pass upon -questions to involved administrative power courts. That has been upon been conferred to single uniformity a so to and body vested in as secure conflicting results varying prevent sometimes that flow the different views would same-facts tribunals! be taken different might considerations, however, to operates' None of these -For in the case. jurisdiction present defeat the courts’ could made free if a between even difference which, way only and contract none coal, made tariffs published it could have done.- The lawfully coal, no distinction between contract coal free made being true, only one all but named rate for alike. That rate it was single charged. collected, could be When any cause, under or for however unlawful, any pretense or to shipper to back to one equitable liberal, pay part R. CO. CO. PENNA. R. COAL INTERNATIONAL Opinion of the Court. S.U. to abide the carrier required The statute every shipper. Company It did not permit the tariff. absolutely by and then make charged that it had too much decide it it had nor could claim corresponding rebate; larger being sum upon paid too little and insist 379, 104, 2; 24 Stat. c. (February 4, 1887, shipper. § Armour Co. v. 25 Stat. c. 6. 2, 1889, March as it' tariff, long 209 U. so States, 56, 83.) S. United though to be treated as was, respect, was of force, such Railroad binding had been a statute, rates were unreasonable If, fact, as a alike. shipper carrier bound to pay nevertheless shipper however, leaving, what had been paid, retain for reparation. right apply former the Commission collect obligation charge, of this imperative n view no there was- tariff, named in the and retain the sum discretion rate-regulating call for the exercise could the carrier body whether to, administrative decide coal. free and contract rates between make a difference or not, any part For it could do so the refund of whether It could not have rate collected was unlawful. the tariff by any legalized by nor could Commission proof, been being unlawful it valid. rebate order have made The any without administrative court, it a matter where was could the fixed law reparation order, or ruling apply all charged shippers that had established fact the carrier a par- a part or tariff rate and refunded the published tariff was published class. from departure ticular This that forbidden, (24 382) expressly provided and 8 Stat. § any by the should any doing carrier act statute prohibited thereby for the full amount person injured be “liable to the violation, sustained such consequence any together attorneys-’ with reasonable fees.” a brought

2. But although this enforce .suit in- given any person section to cause action this plain- in its pleading it is fact that jured, a noticeable OCTOBER TERM. Opinion of the Court. 230 TJ.S. tiff damaged does claim have been there allegation proof, neither nor- that any injury. suffered it n Itcontends, however, necessary that this was not for the that, law, reason as it matter was entitled to as recover damages the same rate ton per on all plaintiff’s shipments as had any rebated other person,, of his ton- nage, at the same time shipped over the same route. And such a right action was expressly given original Bill to Regulate Commerce, which, as it passed the Senate did May 12, 1886, the carrier provide “shall persons be liable all who charged have been a higher rate than was or charged' any person other persons- higher for."the difference between-such rate and the lowest shipments rate during like the same period; or if such lower rate made on any time contract understanding, the said common carrier shall be liable to pay like rebate drawback to all other over shippers the same route between the same who have points shipped goods during time that such contract or understanding the. was in operation.” provision fact measuring the amount recovery Act, finally rebate was omitted as

reported to -both Houses and passed, signifi- is not only cant, so conclusive against the contention of the quotes report of the conference —not statement,1 committee —but made by member my motion, Mr. Cullom. I Before action on desire to amake state ment of and are recommended changes “Sections ^[*] in the bill 2, 3, changes ^[**] passed by *' of the Senate the committee of conference: bill. The ^[*] the Senate which have been bill, prohibiting ^[*] following ^{[*] [*]} is a statement of the ^[*] discriminations, ' agreed sfc provisions contained recovery relation damages. These sections, have been stricken out said grouped-to of and have been gether section, in one which made section 8 of the committee.bill. Except rearrangement, substantially only as to change the made provision has been the addition of of the the bill House that a reason v. CO. COAL R.R. CO. PENNA.- INTERNATIONAL the Court. Opinion of 230 XJ.S. to the Committee, support present Conference

the Senate thing as the omitted 8 means argument § at to doubt may explain be looked they while But clause. less reports the not even formal ful expressions, —much of a be resorted a Committee —can of member language to a statute its construing contrary of to purpose for the radically that which is identical -or make terms, plain 166 U. Freight Association, S. United States different. Section 2 Dow, 581, U. S. 601. Maxwell v. 290, 318; nothing Bill said about damages original of the Senate in the rebating gave shipper right, nature case in the for a be measured difference action, of an penalty rate, whether and the unlawful damage the lawful between out and provision or not. That stricken resulted and ap both Congress Houses Act, passed as President, gave right action for proved by damages attorneys’ person injured” and, fees “the — of the injury. extent course, in many provisions were statute There attorney’s fee’ shall in every

able or be allowed the court counsel recovery damages. parts said case sections which are consequence rearrangement of the are stricken out in referred to all ‘unlawful,’ 13, in all of 2 after the word line section 3 after section 27, 18, inclusive, ‘business,’ line word lines both sec change Cong. Sess., is made 2.” 49 No other section Rec. 2d tion.4. 1, p. 170. vol. Part. 5667) (H. provided Bill R. if .Section 7 of House carrier required, an act should an act forbidden or to do do omitted should statute, pay person “held to such carrier should be violate ' . . . persons injured damages so full amount of sustained with .” . . attorney’s reasonable counsel or This bill was fees. before members, Committee, required by the Conference and the House Bouse, rules of made a written statement action Con- (vol, IT, Rec., ference, Cong. Cong., in which was said Part 49th Sess., 6-98,774) pp. 695, eighth 2d that “the section of the substitute eighth being present section of act —“contains sub- bill” — regard Bill stance of the seventh section of the House expressed language.” different and counsel fees but somewhat 1912.

Opinion Court.’ of.the 230 U. S. and fines. the'civil the Act imprisonment On side pro- punishment. compensation Though for vided —not intíiany respects Act has held to be highly penal, yet damage no fixed measure of plain- there was favor & said in Parsons W. But, Chicago Railway, tiff. N. construing this 447, 460, section (8) “before'any under he must not can recover show party merely the.act that wrong but has in carrier, that wrong of fact Congress his had injury.” not then and operated to has of an that any not indication given persons since intent might, nevertheless, recover injured though what be a damages- really penalty, called would in addition to payable the Government. penalty contrary, On argument might damages answer be a act June rebates, Stat. (36 cover a c. that where carrier 309), provided rate it misquotes not to penalty $250, should but to pay shipper, . Government, recoverable a civil brought by action Congressional States.' 35 Stat. 166. United Record danger The (1910), payment damages 7569. might violations of law be used as a of paying means damages rebates under the name of is also out pointed in 121. I. 418-421, C. 423; Commission C. C. C. 82. said,- It that it-is however, impossible prove is shipper by one damages occasioned re- payment if the another; plaintiff bates to and that not entitled is damages paid recover as drawback that was not only its the statute no competitor, gives remedy right.it of a had at common law deprives recover difference between the and the un- lawful lawful rate.

We are cited to no authority which there shows was any such ancient measure and no case damages, has been found which damages were awarded for such discrimination. Indeed, it exceedingly doubtful whether any-right there was at common law of action for sort R. PENNA. R. CO. v. COAL i INTERNATIONAL CO. 20 Opinion S. of the Court. U. this, like this, a case while statute give does clear, positive right definite and unjust recover for. It thereby discrimination. either first created the right the doubt as to or removed whether such suit could be brought. English courts had held that a who shipper, no rate,' a reasonable had cause of paid action because.the ,to carrier had a lower rate another. Great Western L. Sutton, R. v. R. 4 H. L. 226, The R. 238. American “ decisions were conflicting, though the weight of author ity country was favor of an equality charge to all for similar persons services.” I. B. C. C. v. & O., 145 - 263, S. 275. But even in U. American courts, which those held that the rates must not only be reasonable but equal, the doctrine had not been so far developed as to settle what was the measure of damages. Hays v. Pennsylvania 12 Fed. Co., Rep. 309, is Circuit, decided favorable to But plaintiff’s contention. Union Ry. Goodridge, v. Pacific 680; S. Louisville E. & L. 149 U. St. R. R. Wilson, v. 132 Indiana, R. 517; Messenger R., Vroom, v. 8 N. L. J. v. 531; Chicago Ry., Cook &c. 81 Iowa, Great 551; Western L. Sutton, v. R. 4 H. L. Ry. 226; London &c. Ever v. Ry. shed, App. Cas. Denaby 1029; Manchester Ry., &c. 97, relied

App. Cas. plaintiff, do not support damages can proposition be recovered proof without pecuniary of what loss had been suffered as a result of discrimination.

In one of these cases the suit was "brought by a shipper damages to recover because the railroad carry refused to contract out a his favor. discriminate In others court treated the low rate as evidence of what was a gave reasonable rate and' thereupon judgment for"damages as for an R. overcharge. Union R. v. Goodridge, Pacific 680, 149 U. S. involved the construction statute, not, Colorado which did as does the Commerce Act, compel the carrier published to adhere to rates, but the railroad to required make the same concessions 1912.

Opinion of the Court. so alike, and for a failure to do persons to all drawbacks times damage liable three the actual the carrier made overcharges paid by party aggrieved. sustained English to be noted in the also cases This distinction did require of Parliament Act carrier cited. tariff made its but the lowest rate published to maintain in excess of Anything rate. such lowest rate the lawful might be recovered an action at law was extortion overcharge. Denaby Ry., v. Manchester R. 11 as for an L. But English courts make a Cases, clear App. overcharge damages, and the between distinction under the Commerce Act. For if the plaintiff is true same required to more than the tariff rate pay here had have, excess, recovered the not as it could count overcharge, and while one of the complaint nature, of this did not proof justify a claim asserted thereon, for the admitted that' it had verdict on]y tariff. Of course, rates named no paid the lawful rates can be payment such lawful an part of treated or as an extortion. overcharge only plaintiff the lawful

Having paid rate was not over- the favored though shipper illegally was under- charged, law, that'violation of For carrier was sub- charged. and, fine to the payment to the Government ject damages liable for all it addition, thereby occasioned, was any other But plaintiff shipper. under it was damages. illegal for an only Making undercharge liable did not license the shipper carrier to make to one a similar shippers, to other and if undercharge having paid a rebate ton to customer, cents a one of 25 carrier in order to. this had made a similar undercharge suit escape or rebate criminally it would plaintiff, liable, to the even have though may it have been done order to equalize the For, statute, two under the companies. was not liable plaintiff paid for the amount of rebate on con- but coal, only such damages illegal tract payment COAL CO. 203 v. INTERNATIONAL R. R. CO. PENNA. the Court. Opinion of S. 230 TL was the damages The measure plaintiff. caused the result of the on as the plaintiff loss inflicted pecuniary be the same as damages Those paid.' might rebate greater than rebate, many times rebate, or than the less were could proved they but unless rebate; they - recov- they could be were they be recovered. Whatever that wherever declares ered, expressly because 8§ re- any to do act act or failed prohibited carrier did an thereby injured “liable to the person it should be quired, such in consequence sustained damages amount full attorney's reasonable . with together . . violation, fee.” necessary inquire it becomes language In view inflicted or the' injury shows what the-evidence in consequence in 1901 damage plaintiff sustained sold on contract coal paying rebates 1, 1899, April April dates between 5. On various of coal Company shipments made 1901, the International Mas- Jersey, District in New points from the Clearfield being sachusetts, York, shipments New its heaviest aggregate Amboy, New York Harbor. South During paid. which the rate was tons, on lawful 40,000 to the. same companies shipped other period four same per ton, receiving rebates of from 5 35 cents points, rebates tonnage paid on such were amount tbe injury proof proof There was no appear. does not —no business, expense incurred or profits, loss of of decrease claiming that, sort suffered —the damage of be assessed to it on should law, as matter of rate, tonnage, on all its to it the same giving basis of contract coal any shipped, on that had been allowed tonnage great such or small. dates, whether same dis- instances in which the multitude of Considering by carriers, in ancient practiced crimination has been be'found in how little it is remarkable times, modern , which treat the elements or text books decisions any In the absence damages in such cases. measure n TERM, 1912. Opinion, of Court. deter- subject, the new must be question rule on the

Settled general principles. mined on statute action for gives right damages The

. clearly legal the use of terms injured these party, damages-recoverable were those known indicated that injury compensation intended as to the law and elementary that in suit at It is law both sustained. And damage must be proved. the amount fact and insists in all cases this the like although plaintiff law, pecuniary of the loss is matter of fact and amount is not language sustained yet contention this ap- founded in actual as will act, experiencé, nor is it well usual and instances pear by considering every-day .several For testimony record. suggested by example:— of the favored companies If and one had both plaintiff to the same market shipped day, coal on may advantage rebate contract coal have an given may from may prevented plaintiff selling, have directly or have diminished expense,, may have caused its under the totally destroyed profits. plaintiff, The such then present any being case entitled statute, damages recover the full sustained;— have plaintiff may But the sold at usual all profit 40,000 Or its part regular tons at the market price, account, purchaser, on own paying freight ppint his delivery. In that shipper pur- event not, chaser,'who paid the would have been the freight, person injured, if damage giving resulted rebates. To say that seller and buyer, shipper consignee, could would recover mean that had been awarded both (cid:127) had bnly two one suffered;— wher.e Or, to take another exampié favored may dealer —a 10,000 have tons of shipped coal to the York open New market, receiving thereon a a ton, of 35 cents rebate $3,500. may the same time shipped have tons 20,000 and sold the same at the market regular price. v. II. R. PENNA. INTERNATIONAL CO. COAL CO. 205 Opinion 230 U. S. of the Court.

Under rule for it contended would then entitled 20,000 cents tons, ton on damages. a Such $7,000 as verdict, a instead of sustained, it losses compensating given would plaintiff profit have a on the carrier’s haye crime in rebate paying $3,500 a and would made adyantage it it an instead of for the carrier to an-injury violate the law.

In order to this anomalous, avoid result it yet-logical, that, suggested now as in (Denaby overcharge cases L. Ry., Manchester R. 11 App. Cases, 97), a only should recover rebate on 10,000 tons, or on the same weight upon which the carrier had allowed a drawback to competitor. But, while drastic, less this is still' an arbitrary measure and ignores the fact that the -same anomalous result would follow if been, there say, had ten dealers, shipping 10,000 each on tons For day. ten each would have been much as entitled plain as $3,500 tiff recover on their several shipments 10,000 tons, ten verdicts would aggregate $35,000, be payment of $3,500 cause to the favored shipper. said, however,

It is that while may there be no presump- that a shipper injured tion because the carrier paid-a single shipment, rebate on a or on an occasional shipment, it if yet could recover rebates had been given so habitually practice establish discrimination. .P’roof that customarily were paid, rebates come would nearer show- that suffered ing injury was still fall would short of the extent and is proving damage, not the theory which the plaintiff proceeds. on For it argues when- that it ever showed that lower been charged rate had con- on same, tract coal sold 1899 it was entitled recover the the,same on shipments rate made place it to on day 1901,even had though compe- same there been no (lie proof tition and without two..sales there had market, any fall in' prices, diminution profits, its business, in its expenses. decrease or increase its It ..in

Opinion of Court. was a mere matter of. claimed mathematics rebate on en- every coal, plaintiff contract ton of its every titled to like reduction coal without damage or injury. further of proof a rule arbitrarily such and measure adopt To dam- 6. ages legalized, endless, rebates would create a by from the tariff; of would extend the effect departures chain crime, destroy of would the original equality and cer- the and, statute, the rates, contrary to would make tainty damages beyond for liable those inflicted the carrier and liability injured. The limitation to the to persons to the amount persons damaged equal injury- and an for of consideration the carrier who has is not out suffered the contrary, On act imposes statute. the violated the independent of the amount rebate heavy penalties, separate offense, a shipment-constitutes paid, each and is a terror punishment in its measure fine the law the for the public wrong doers. But inter- to evil penalties these equal the current commerce ference with payable by If made Government. or fines were injury private private right was inflicted same the act But did not nec- given. public wrong action the did, damage, pecun- and when it private cause essarily the property, with character of the loss varied iary shipment the-market, and the state circumstances giving shipper right recover so that instead measure, statute made fixed in amount or a penalty of damages liable the full amount carrier guilty they-might whether greater sustained, be. —whatever paid. the rate rebate than less is limited conclusion, right to recover This suffered and is demanded loss pecuniary proved, statute, put construction language upon it Case, the view the Parsons is taken years ago - we find in which this only other case under question, Commerce, Regulate has been construed. In Act to PENNA. R. R. COAL CO. CO. e. INTERNATIONAL Opinion of the Court. Knudsen v. R. Michigan R., 148 Fed. Rep. 968, Central 974, said the Circuit of Appeals Court for the Eighth Circuit to “support recovery under this section there must be a showing specific of some pecuniary injury. A cause of action does not arise from necessarily those' acts or of a common carrier that sub may omissions ject it to a criminal prosecution by the Government or to or coercive proceedings at the instance of corrective Commission.” A similar principle was in Meeker applied R. Lehigh Valley R., 550, Fed. Rep. 548, and in Central Coal Co. v. Hartman, 111 Fed. Rep. where the suit was to recover caused a violation of Anti-trust Act. case,

Another on facts quite involved, like those here that of Hoover v. Pennsylvania R., R. Pa. St.

where statute, like Act, gave Commerce the party injured right a of action for damages suffered. In viola- tion of the state law the railroad allowed a manufacturing company a rebate of 20 cents a ton on coal shipped. In a suit for-the recovery of the trial court charged the jury that the difference high between and low rate was the measure of recovery. reversed, This was saying (p. 244): court “The injury amount suffered is single the measure damages to be allowed. But it does not at all follow that the injury amount of suffered is in the difference charged. might be, rates It or it but, in might be, any not it must be event, a subject of proof. ... It does the plaintiffs appear sold for any their coal less than current market . price, . . except when they the other dealers were engaged a war of prices and sold it far below the actual cost, struggle a capture market.”

In view of the express provisions 8 of the Act to Regulate Commerce, it was error to refuse charge recover, entitle satis- jury must be .“to fied that it some or sustained loss injury the fact due to

208 1912. J., S.U. Pitney, at the same at lower carrying defendant was time coal other The shipped shippers.” judgment rates the Circuit is reversed and re- Appeals Court ease Court, manded to the District with grant directions a trial.' new

Reversed. Pitney, dissenting. Mr. Justice under judgment' recovery review sustains Company shipping commerce, behalf coal interstate charged published rates paid that was the lawful for the difference betweén the thus freight, rates customarily and the less allowed to other paid during period and of coal between the shippers Rep. Fed. The action is based same termini. (24 Commerce Act.1 of the Interstate and 8 §§ Stat.. subject provisions this any if That common carrier Sec.-2. rate, rebate, drawback, shall, directly indirectly, by any special or act demand, collect, any person device, charge, or from receive or other rendered, any compensation for or less service persons, greater 'a or or property, sub rendered, transportation passengers in the or to be remands, collects, act;, charges, than it ject provisions of person persons doing him or them other receives transportation of a like kind of contemporaneous service like and conditions, substantially similar circumstances and such traffic under unjust discrimination, guilty deemed carrier shall be common declared to unlawful: hereby prohibited and provisions any subject to the in- common carrier 8. That case Sec. act, done, do, permit done be or to be shall cause to of this act unlawful, prohibited in or be or matter, thing act declared or done, required matter, any act, thing or this act be shall omit do person persons injured or the be-liable to such common carrier shall in consequence thereby sustained for the full amount an$ act, with a provisions togethéi of this reasonable of the such violation by every attorney’s fee, fixed the court case of re- or counsel be part attorney’s and collected as fee shall taxed covery, which case. costs the

TENNA. R. R. CO.' v. INTERNATIONAL COAL CO. 209 Pitney, J., U. S. 379, Chap. 104.) The discrimination accomplished by' means of rebates allowed to the other the shippers, for excuse the which, reason the discrimination assigned by the in error, was that on the coal the which rebates were allowed was shipped pursuant to contracts of sale made shippers' favored prior in force putting published tariff, and made in reliance upon lower rates then in force. It was proved during the years two from April 1, 1901, April plaintiff shipped 40,000 about tons, upon which it the full paid tariff rate. The verdict judgment $12,013.51 represent the difference between freight charges paid by the actually plaintiff and it would if paid what have its coal had been on carried the same terms as the “contract coal.”

I agree with the view of court suit without action any previous maintainable Inter- Commission. I agree state Commerce also that “even if a in rates could be difference made between free and coal, contract none was made only inway which it could have been done. lawfully published tariffs between, no made distinction contract coal and free coal, rate for'all but named one alike. That being-true, only single charged.” rate could be us, I question before should be Weré inclined to the Interstate say that Commerce Act does not admit in rate for a difference substantially transpor service, at the tation same and under time substantially circumstances, upon similar based' the mere fact that shipper sold, one has been previously coal.of under “con ” otherwise, or- while coal of tract the other shipper has time, sold but at different remains to be sold arrival at market. Such a its discrimination is ownership based mere goods effect trans recently been condemned ported, has this court. Lack. & v. Del., Com. Western R. R., Interstate Com. ccxxx —14

VOL. ' 1912. J., dissenting. S.U.

Pitney, Haven Interstate U. S. 252. And see New R. R. v. 235, Com. 200 U. S. Armour Co. v. Com., 395; Packing United States, sustaining right upon while the of action the court, record, judgment in this the reverses presented

facts on the trial, ground and a the that under awards new of no of on the presumption part is the statute there loss .made, the discrimination is against whom shipper in no favor damages established measure therefore in right 8 of Act, giving that the plaintiff; the § to the indicated the' injured party, action the intent that of the carrier legislative responsibility injured to a discrimination rates should be shipper discrimination, not the amount measured injury accruing to shipper be- consequential discrimination, and that without special proof cause there can be recovery. resulting damage no I feel constrained to from dissent respect, With great Congress, taken the Act the view thus case. it leads result to which accept that bring myself I able have 2 of act contrary, consider that view, and, § as the prohibited deals with discrimination injury shipper, pre- the disfavored direct pecuniary discrimination; in amount that equivalent cisely public carrier common looks serv- Act recognizes that it alike; all ant, shippers to treat bound rates, reasonable published while established proven and are fact, be unreasonable to be may in law charges less favored customarily carrier so when the allowance favored customary treats shippers; an drawbacks as admission by rebates shippers rate higher carrier that disfavored in fact extortionate by precisely excessive and shipper rebate; amount the disfavored shipper within the meaning 8, “person injured,” is the PENNA. R. R. CO. v. INTERNATIONAL COAL CO. 2Í1 Pitney, J., 230 U. S. “damages

that the sustained of consequence such any are, in of rate discrimination, violation” cases at least as amount of great, discrimination; as the the that the of in rates maintaining equality being the of duty the (cid:127) public as prescribed by servant the the Act, question on shipper, whether such the paying the rates as law pre-' the freight to his scribes, charges consignees, directly, or not all, is a matter of no indirectly, legitimate con-' -1 eern to servant. am public the convinced further, as the result of a somewhat exhaustive examination of the the question, just that view not only indicated is con- language sistent with the and evident of policy the Act, light viewed of the the evils that it was designed to correct, but is consistent its legislative with history, and at the same time accords the practical with construction placed upon that has been it the Interstate Commerce Commission, recognized by the courts (including court) this of its from time that no enactment; other of practicable determining mode damages, capable of has been general suggested for application, cases than rate discrimination that which measures the recovery by the amount discrimination; that this was well-settled such cases, measure as generally administered the courts of this country (cid:127)prior Act, to the passage at the same time was rule of damages the established under the Act of Parlia- our upon modeled, was as already estab- ment decisions of by repeated lished the House of Lords when Congress passed Regulate “Act Commerce”; English are cogent decisions evidence of as meaning Congress, intent and this court has several declared. times precise error attributed trial is the judge charge,

refusal to that “To requested, plain- entitle recover, jury tiff to must satisfied sustained or injury some loss io fact that due defendant TERM, 1912.

Pitney, J., rates, at lower time, shipped coal at' the carrying same shippers.” other a "discrimination recovery upon was based Since the shippers from the rebates to the other payment arising made them fulfillment contracts shipped by on coal coal which the rebates .were so that the long before, competition not and could come into direct did allowed market, presumable coal it is with the plaintiff’s plaintiff no consequential injury there was nor rebates, series particular attributable from aside the fact that more injury money provable ought than to have been exacted exacted A judgment reversal equality! principles adopted by the court is to a ground equivalent upon the in and case, apparently of action right denial in rare where except the instance merchandise in all cases into happens allowed to come direct are on which rebates of goods complaining with the competition market shipper. it is cases, but in most case,

Not in the present only damages to trace actual impossible consequential adopted and so discrimination, the view particular of by of action right given nullifies the virtually § discrimina- persons as concerns Act, injured by so far by prohibited tions that are § n Section8 in says terms that for done anything Act, carrier, contrary to the prohibition common thereby injured “hable person persons shall be amount damages consequence full sustained Each of seven preceding such violation.” any of which violation sections prohibitions, contains the first four, damage may shipper; especially result to the and charges; of which unreasonable prohibits unjust, § charges, whatever discriminations prohibits and un- “any undue device accomplished; prohibits §3 preference particular reasonable to any advantage (X.). ÜO. f. INTERNATIONAL R. R. COAL 2IS PKNNA. Pitnky, J., dissenting. S.U. that" etc., any whatsoever;” requires respect person, facilities be afforded for the reasonably proper equal connecting interchange lines; pro- traffic with 4§ sub- greater compensation under charging hibits and conditions for a similar circumstances stantially distance over longer than for the same line shorter being included within direction, the shorter now distance; provisó-not with a Cer- longer pertinent. shippers against Act whom contemplated tainly, and for whose practiced," discriminations were these be treated as framed, the entire Act was were to benefit the.meaning And injured” “persons within §8. they to have the “full amount that section are consequence such violation.” sustained according customary its “damages,” word The as applicable is at least immediate usage, properly higher charges upon one result imposing and direct cir- charged than are under similar customarily shipper and for to other as it shippers, a like service cumstances consequences ultimate such discrimination. throughout that runs Act is to require equality purpose easily accomplished How can this be so of treatment. the freight when the'damage being complete treat as to than higher based that are those bill is paid, to require equality by to other shippers, a return of the excess? insisting upon everywhere that and con- are insistent remote Courts shall speculative damages and be excluded sequential consideration, only and that those and directly from shall resulting injury be considered. proximately a as damage and proximate can be more direct What a is than practiced, against whom discrimination shipper discrimination as compar- shown aby the measure can be bills? And what remote freight more ison out arising into considerations than enter speculative business, in which the transacts his shipper of the mode OCTOBER. Pitney, J., $.U. whether particular consider commodities discriminatory which the have been wore imposed .arrangement sold under this or as shipper between that consignee, and whether discriminations have resulted in of a particular sale, the loss or of a particular particular or of a profit, customer? Congress, course, the notorious fact recognized that rate discriminations it impossible often rendered for the disfavored shippers to (cid:127) in continue profitably business. Rate discriminations for that prohibited amongst were reason, others. But submit, I never intended to Congress, impose upon the injured task impossible party his tracing ultimate this or to that shipment. losses to But it said that whatever might view otherwise be entertained, particular (and, a as think, very strained) I be attributed meaning must the word “damages” used in the Interstate Act, Commerce because of course in Congress in proceedings resulted the enactment is pointed that statute. It out that of the original § bill in terms that in provided the case of rate discrimina- carrier should be tion, the liable to the disfavored shipper “for difference between such higher rate and the charged upon lowest shipments like during rate with a similar period,” provision rebates and respecting drawbacks, and it is said that because this provision was finally Act, omitted from the result is not only signifi- cant evidence' a legislative conclusive intent “damages” so far as discriminatory rates are § concerned, to be are measured some other manner. If had in prescribed any terms other measure than that § which was or if original any other had been then appreciate known I' could law, of the force argument.' The course debate Congress,“as quoted opinion, shows Cullom, Senator -who sponsor was the chief 'bill, .for the member. Committee, explained Senate Conference the change as CO. CO. R. COAL R. INTERNATIONAL PENNA. J., Pitney, 230 U. S.. all provisions into one section the simply

intended group had that been contained in respecting damages three for merely That was done purpose sections. this that understanding and with the the courts simplification, proper in apply damages would course measure Congress and would not need to tell how case, each them appears remarks this, clearly do from Senator'Cullom’s If other change. any in measure explanation had in discrimination cases ever been suc- damages rate I could some force cessfully applied, concede the rea- in bill change during is based soning (cid:127) through Congress. its But no other measure has progress opinion any nor out how point been does applied, can be. other of the re- great English said,1

As a one cases judge great “I think that would be very ferred below: there [meaning a com- overcharge if difficulty, principle rejected, finding any rates charged] were parison way of such remedy by damages applicable other the House Lords These words were used in case.” finally of a series of cases that settled the last notable discriminations, for under the measure rate an of Parliament that furnished model Act Act. That decision was ren- our Interstate Commerce passage of our year more than a little before dered undoubtedly. It was known Senator Cullom Act. also who doubtless (a by profession), knew lawyer courts, had decisions, in a English adopted series of was to be damage solution measured simple think, would, It amount of discrimination. I surprised distinguished learned and Senator have act he merely “simplifying” if had told that his deprived the disfavored shipper had effect Selborne, Selborne, formerly be Earl of Lord Chancellor Palmer, that, Britain Roundell counsel Great fore Sir Arbitration. Geneva J., dissenting.

Pitney, 230 U. S. case of ordinary all in the discrimination, remedies legislative measure whose too, underlying pur- such discriminations, to and to pose was add to prevent already and extend the remedies available securing them. against redress passage Act, while to-the the courts of Prior v did not recognize right

England recover for perhaps unless the rate unjust discriminations was of itself party excessive, the complaining weight of in this was to the country contrary, authority pointed as court in Interstate Commerce out Commission v. Railroad, B. 275. & O. And see v. Hays 12 (1882), Fed. Pennsylvania Rep. 309, Co. note; Louisville & R. (1887), Samuels N. Co. 31 v. Fed. Rep. 57; &c. Chicago Ry. Co., Iowa, 551, Cook v. 563; Louisville E. R. R. & St. Wilson, Indiana, 517, Co. Commerce Act and reports Interstate and debates preceded with Congress replete are evidence that to give the Act intended to the shipper against whom was practiced discrimination as least ample remedy as against he have exactions that for any would were other reason or extortionate. unjust of practical

As a matter construction, the adopted course by the Interstate Commerce Commission reparation convincing, cases is only, most what was deemed Congress, be the intent" of of the fact that no other is reparation practicable measure of saving that which is based on differential. the rate In every case that has arisen, discover, so far I can as difference rate has basis- of as the adopted reparation,. The cases will be referred to below. .in opinion

Reference made to the declaration (by Brewer) this court Mr. Justice in Parsons v. Chicago & S. Ry., Northwestern 167 U. 460, that any “before can recover under Act he must party merely show not of the carrier, but wrong wrong that that has fact (cid:127) v., CO. R. R. CO. INTERNATIONAL COAL PENNA. Pitney, J., U. S. his But the next injury.” succeeding words

operated meaning is now this had no such attributed show had shipped it. are: he New [the-plaintiff] They .to “If ' he have might local rates recovered York and been charged rates.” through excess thereon over had'made, “local” only shipments In Parsons short, regular published and had (Iowa Chicago), paid injured, that'he was not court held therefor. The n under case, by circumstances particular file and publish-a failure Railway Company not to Chicago of through rates, applicable certain tariff to York to those New and shipments, only but destined the other on Atlantic And so decision the seaboard. points case had no action. The has no was, ground that he of Of as proper bearing, authority, upon an question as an if it to au- damages; employed measure of of at all that the declaration thority upon question, recover, to his court, that if Parsons had entitled been by the rate differen- damages would have measured tial, not to ought be overlooked. Case, plaintiff in while the is that the Parsons fact of a discrimination in was guilty

claimed that carrier his an of rates, petition upon court analysis this — case determined —found there a which the was demurrer to. had plaintiff was because the made no of § infraction of no him the lower rates which shipments that entitled for no real basis his complained; he so that there was action or file except publish of the failure the carrier The gist of required by rates as the Act. com .6§ of that rail carrier, operated system plaint-was for through Chicago, in Iowa to points road from Nebraska shippers of giving preference to the purpose unlawful discrimi Nebraska, unlawfully of and oats and corn put shippers, and other Iowa against plaintiffs nate tariff on points freight force from Nebraska a certain Illinois, in' load lots to when Rochelle, corn and oats car Pitney, J., York, Boston, Baltimore; destined New Philadelphia, or was published this never circulated or at Iowa, stations defendant’s road nor filed with the and Commission, Interstate Commerce its existence was knowledge concealed and other on the road in shippers line defendant’s Iowa; that on nained, plaintiff certain dates had shipment at a oats, in Iowa, station of corn quantities certain and and and deprived, reason of prevented the matters ship alleged, right to same upon the terms and given shippers rate thus Nebraska, in the State of did obliged ship grain to and his over defendant’s road from the Iowa at a point Chicago, higher rate than taking advantage he had could have the Nebraska published if had been schedule Iowa; ’ preference an unlawful constituted discrimination in favor shippers grain in defendant the State against the plaintiff grain shipper Nebraska Iowa, thereby charged, the State defendant compensation and received a greater demanded (the longer for a shorter,''than haul longer including the shorter), substantially under similar circumstances. This Brewrer) Mr. Justice in dealing (by case, court with the 455) complained the tariff pointed (p. joint out that of was a of local on grain not a tariff tariff, Rochelle, and to- Chicago, or which was Illinois, even to the eastern limit road; 457) that (p. pleader of had the defendant’s not a which it could said nut case on that the so- made a tariff mere under color of called was device joint grain was from Nebraska shipping points defendant were (Chicago being less rates than to the nearer points proceeded 459), in and to show that Iowa; (p. plaintiff’s “that if argument practically was the tariff Commission, had been filed it might with have made order, general an either it be special, requiring that posted stations; at the that if it had posted Iowa been so CO, COAL 219 v. R. CO. INTERNATIONAL R. PENNA. Pitney, J., ti. S. have de niight rates and might he have examined of Chicago, not to but one his ship corn, termined to tariff.” was points named such the four eastern It of court to the reasoning point led line of that .the this of right recovery only that “The remarking, ,p. Act to the individual Commerce given by the Interstate. for full injured thereby amount persons to the ‘person of any of of the viola damages consequence sustained party act.’ So, any before provisions tions not show, merely can under the he must recover Act that has wrong carrier, wrong operated but that fact York he and been shipped to his had New injury. If have excess-thereon charged local rates he recovered might and York, over did not to New through ship He rates. yet might sum he have been to recover extra seeks charged if not recoverable shipped. he had Penalties are on mere possibilities.” (not original) serve,

The I words italicised so think, merely negativing that show court bn have recovery part might shipped, one who but on the contrary aiid ship, negativing, did not was.not arguendo, theory that in the event the exist- affirming, damages would right ence action measure have been the rates. difference herein opinion refers to undertakes distin English I have

guish the three cases to which re already v. L. Ry. Western Co. Sutton (1869), ferred —Great R. Ry. H. L. &c. v. Evershed 226; London L. R. (1878), 1029; Denaby Colliery Main Co. Man App. Cas. Ry. App. Co. L. R. Cas. (1885), chester &c. 97—and “do support proposition that they states proof of what damages pecuniary can be recovered without discrimination;” had loss suffered as a result low rate as of what court treated evidence “the rate, thereupon gave judgment reasonable for an overcharge;” “the Act J., Pitney, dissenting: n made Parliament the lowest rate the lawful .... (cid:127) respect, rate.” With it seems to me great the court has the effect of these misapprehended decisions; perhaps distinguishing two variant because statutes there was no under discussion. There Act of Parliament that rate the or in rate,” “made the lowest lawful terms de- excess over clared that the lowest rate was extortion- in an action law, for an ate, recoverable overcharge. remedy that the courts of England The accorded to the aggrieved against whom shippers railway companies discriminated, had was based an upon Act Parliament far so as concerns the that, damages measure an discrimination, distinguished unlawful is not to be from Act; indeed, of the Interstate Commerce it furnished § True, very the model for that section. it imperfect (cid:127) respects, some and was improved upon model was not .Congress; departed, from in any respect to the measure pertains for favoritism in (if Whatever rate-making. any) English distinction “overcharge” “damages” between courts make has statute,- respect with to a arisen different that fur- one ('ommerce of the model our nished Interstate Act. § English decisions referred to Since the were rendered of our prior adoption Act, afforded a to the construc- taken, tion acts ours was English it is importance respective the utmost terms the precise grounds of Parliament and Acts of the de- understood. clearly cisions should is first those acts Clause, so-called Equality Railways being 90 of the Clauses Consolidation Act,. 20), and 9 Viet. c. (8 enacted to consolidate act, one certain provisions usually “special inserted ” railway acts under which were incorporated. companies Section 90 is full in margin.1 set forth As will it, be, 90. And expedient the company whereas enabled should vary railway tolls so toas accommodate them PENNA. R. R. CO. INTERNATIONAL COAL CO. 221 dissenting. U. J., S. Pitney, .230 be observed, while in requiring equality and tolls rates, so far as it this applied, clause was quite limited with respect to the circumstances under which it applied, be- ing confined in especially operation its phrase the over portion only the line of “passing rail- way under the same circumstances.” in It was this respect, Congress especially, improved upon the model. so far as did But, section apply, English the courts in in held, the cases cited opinion,- the and for reasons will be set forth fully below, that where the, in rates was inequality shown, shipper against whom the discrimination was made could recover the rail- from way the amount of the company in an discrimination action for had and money received, as so money much unlawfully, him,..just exacted as by the common law he could recover excess over a charge. reasonable the In or in cited, any the others to which attention my cases called, has no other of damages measure has been sanctioned, excepting upon that based the amount discrimination. act, under had

The other which some arisen controversy courts the' allowance of English about traffic, varying should but that such power circumstances of par- purpose prejudicing favoring particular or not be used for the unfairly ties, purpose collusively creating monopoly, or for particular parties; it shall be company either in hands of the or subject lawful, therefore, company, and limita- for the to the provisions contained, special from time time to alter tions herein and act taken, upon either vary special or authorized to be the tolls act railway they any particular portion shall- whole or equally fit; provided think that all such at all times tolls be persons, per mile or rate, per all ton other- and after same whether wise, carriages passengers, companies of all respect of all or .of carriage propelled by or conveyed if or a like description, same railway engine, under only of the line passing portion over the'same circumstances, such tolls same and no or advance reduction made, directly indirectly, against any shall be either or favor of or particular person traveling upon railway. company or or using

Pitney, J., 230 Ü. S. (but them), none all measure of about is—“The Railway Act, (17 Canal Traffic and 18 Yict. 1854,” c. 31), second, which .the third and sixth are sections pertinent second present prescribes inquiry. The. duty companies to furnish .reasonable railway traffic, "for giving facilities without undue or un- “any reasonable or preference advantage to or in favour of any particular person company, any particular description- traffic,- of any respect nor whatsoever, shall any company subject particular such any person or particular or of company, any description traffic, any or or prejudice undue unreasonable disadvantage in any respect 'The third gives whatsoever.” section parties of complaining anything or omitted to be .done Act, in violation of done,- contravention of special “in extraordinary remedy, by applying a summary way, motion or by summons,” of to certain the superior courts, or.to of any judge such court, authorizing the court or judge to hear determine the matter complained of, injunction an or(cid:127) (cid:127) interdict, issue restraining the company further continuing such violation of the Act, and punish disobedience attachment or other authorizing also or process; judge the court to impose upon company daily fine for heavy disobedience injunction or interdict; “Such moneys shall be pay- able as court or judge may . direct, . . either party or complaining, into court to abide the ulti- mate decision of court, or to Her Majesty, and pay- ment may, thereof prejudice to any other without mode of recovering same, enforced attachment or ” order of a nature writ execution, By the of. etc. sixth section- it was enacted as follows: “6. No proceeding shall be taken for violation any or contravention of the above except enactments the manner herein provided, diminish nothing herein contained shall away take rights, remedies, privileges any -person or com- AL CO. 223 ATI ON COAL R. CO. v. INTERN PENNA. R. J., dissenting. Pitney, or canal and canal any railway or.railway pany against law.” existing under the company held that England have because

The courts § those beyond existing rights establishes act extraordinary remedy an there law, gives and 3 common § remedies, there can be no recov excludes other for, and 6§ for based ery in action ordinary an provisions 2; but it infringement mere has § §2, if violation for a violation such queried whether money carriage, unlawful extortion involves an may appli not be remedies at law extortion ordinary the House of Lords This was reserved question cable. Case, 11 Cas. But Colliery App. Denaby in that case R. having (L. declared Appeal Court 225) remedy by exclusive, 14 B. that the 0 was Q. Div. court after the enactment our years three Co. Ry. Rhymney Act v. (Rhymney Interstate Commerce 146, 150), Iron B. adhered that view. Co., Q. Div. & Yorkshire subject, Ry. on the Lancashire And same see, B. (1888), Q. L. R. Div. 215. Co. Greenwood courts never observed; English far as I have have So of the difference in allowing the question wavered the disfavored shipper, to be recovered freight charges of 1845; of the act for violations of the Equality Clause any nor the there could be other ever sanctioned view that any of Nor I find that other meas- damages. measure can has for a of the suggested ure violation of. of in.respect of a rate discrimination. The act con- that act been whether could troversy about has suit for a be at all violation of it. maintained But, pointed as this court has the out, repeatedly provisions the second section the Interstate Act respecting Commerce of of 90) rates are modeled the Clause equality Equality (§ after of the our Act 1845; act while the third section English of of of is modeled act English the after 1854- of

In Interstate Commerce Commission v. Balt. & Ohio R. J., dissenting. 230 U. S.

PiTNíit, the 263, etc., Eng court referred R., 277, 145 U. S. courts English there acts, and, lish some decisions "These do not 284): appear traffic acts under, saying (p. own, may justify as our and con comprehensive to be as be obnoxious to the Jong tracts which with us would and act, charge would be open short haul clause But so as relates to the unjust ques discrimination. far presumed preference,’ may tion ‘undue it Congress, adopting English act, had 'mind language to these words English courts, construction given into the statute. incorporate intended to them McDonald v. S. Hovey, 110 U. 619.”

In Texas & v. Interstate Commerce Commis Ry. Pacific sion, 197, S. court 222, (by 162 U. Mr. Justice Shiras) legislation by said: "Similar of England Parliament might profitable render of the examine some decisions of the that country construing courts its provisions. In fact, of our the second section act was modeled upon the English ‘Railway section 90 of Clauses Consolidation 1845, Act’ of known as the ‘Equality Clause,’_and our third section'of act modeled upon the second sec ‘ English tion of the act for regulation better railways traffic on of July 10, canals’ 1854, and the 11th July 21, section of the act of 1873, entitled —‘An act provisions make better into carrying effeet the Act, Canal Railway Traffic other pur poses-connected therewith.’”

In Interstate Commerce Del., Commission v. Lack. & Co., Western R. 235, 253, Mr. (by court Chief White) Justice said: “It is not open question that the provisions Act Regulate were sub § Commerce stantially taken Railway Clauses English known, Act Consolidation as the Equality Clause. Texas Pac.& v. Interstate Com. Railway Com., 162 S.U. 197, Certain that at the also is it time the passage of the Act to Regulate Commerce in the Eng that clause COAL R. R. CO. v. INTERNATIONAL CO. PENNA. J., Pitney, U. S.

'230 as only lish act had been construed embracing circum carriage concerning goods' stances of the and not the or, sender, words, of the other that person the clause did not allow carriers railroad to make a difference because of differences rates arising either circumstances the carrier began before service of or after it was England It therefore settled in terminated. was charging forbade of a higher clause rate for the car riage goods intercepting for an forwarding agent than Ry. for others. Great Co. v. Sutton L. (1869), Western R. H.4 L. Ever shed v. R. 226; London & N. Co. (1878), W.

App. 1029; Denaby Cas. Main Colliery Co. v. Man chester &c. Co. Ry. (1885), App. Cas. 97. And it may settled not be doubted that the was meaning which affixed Clause at the time English Equality adoption óf the Act to Regulate applies construing the Commerce act, section certainly second extent interpretation is involved in matter before us. States, Wight v. United Interstate 512; U. S. Com merce Commission Alabama M. R. Co., 168 U. S. 144, 166.”

Now, what of the Equality construction Clause act that had been adopted English courts, in thus cited by the cases this court as controlling Congress enacting evidence what intended in the second of our act? section Ry. Great Co. L. (1869), Western v. Sutton R. 4 L. brought

H. was an action judgment recovered for “the amount certain But alleged overcharges.” they only in “overcharges” they were sense that were the charged differential between The opinions judges being those to others. Lords, Mr. Justice delivered called Blackburn view, the prevailing expounding historically, the subject 237): follows “At (p. holding common person law a out as a common carrier of goods himself not under von, ccxxx —15 1912;

226 Pitney, J., dissenting. obliga- equally.1 all customers to treat

any obligation upon him was imposed common law tion which him carriage delivered to for goods all carry accept and he had some (unless reasonable to his according profession on reasonable com- so) being, paid doing for not excuse carrier, accept if the refused to doing; so pensation for so refusing; him for lay against an action goods, such carrier to customer, perform in order to induce the if the sum larger than was protest, under duty, paid, his what surplus beyond he recover bach the reasonable, might money receive,* was in an action carrier entitled to But money as extorted him. received, being had and from less, was though others it that the carrier the fact unreasonable,' was charge show that evidence to There was noth- tending way. evidence more than no ing carrying law hinder a carrier the common rate, or unreasonably individuals at an low even favored he was, All that the law should gratis. required J., per see charge reasonable; Byles, more than was S.) B. Co., (N. Eastern C. Baxendale v. Counties Ry. Co., Willes, J., Ry. v. Southeastern 78; per Branley S.) railways opera- 12 B. came into (N. C. But when tion, they practically superseded was found that and it for the transit, question all modes of became other would, far when numerous legislature they granting how railway make a and act as carriers on persons power what beyond on them restrictions line, impose At imposed ordinary common carriers. first latv act inserted such legislature special in each clauses committees, in each seemed, to the reasonable particular Very case. soon those came to be usual clauses which the Lords then Chairman of Committees the House of more railway used to to be inserted in all bills with require country.’ Commerce Note: Otherwise Interstate Commission B. v. & cases Railroad, supra. other cited O. U. S. PENNA. R. R. CO. INTERNATIONAL COAL CO. 227 J., 230 U.S. Pitney,

or less modification. They were known by his name as ‘Lord clauses.’ Shaftesbury’s Finally, the legist embodied general lature in a act (8 and Viet., c. 20) clauses which it thought- those expedient should gen- be inserted in erally railway acts,.” Blackburn,

Mr. Justice after. referring to the special case governed (what, acts that the in this country, would be called “charter” of the the company), one of which of the act it, 1845 was into incorporated and saying that rights the of the parties must the depend upon effect of in conjunction certain other sections with 90 of the act of to was, which leave the .company free to charge for thought what it parcels fit not exceeding five hundred pounds weight, however, “subject, to the effect' of the proviso for contained the equality 90th section of the Act, Consolidation Railway Clauses and the similar proviso equality for special the former contained act of (7 Viet., this and 8 company. 3’, c. sec. 50),” pro- then say: ceeded to question, the what

“Then is the this legal comes effect of I think it proviso equality? from the appears preamble for of the 90th section Railways Clauses Consolidation Act, 1845, legislature the opinion that the changed things state of arising the use general railways it to an expedient impose made on obligation rail- acting as carriers way companies beyond what is imposed common law. And if on á carrier at this borne in mind, be I the proviso think construction the is equality clear, for may, and is, that the subject limitations in defendants their, Acts, what special charge they think but not more fit, than person they, time, to one the others during charge same under same Circumstances. And I think it follows from this that do more to one than charge person if defendants time, others, is, they, during charge charge virtue statute extortionate. I think that the rights And and remedies a made to a person charge beyond pay TERM, 1912.

Pitney, J., railway com- by the statute on imposed equality limit of be precisely on their line must as carriers acting panies charge beyond made person pay those same carriers as ordinary Common limit .Law imposed . . . it is sought was reasonable. When than more being as being contrary, is extortionate charge to show that is immaterial obligation charge equally, it the statutable not; show enough is reasonable or charge whether dr class person carried some other company charge during throughout at a lower persons period like cir- more party complaining under single less on charging person cumstances.1 One act particular-occasion think, would not I the higher one make day, or charge during to all others extortionate all that week, month, might I period whatever be. think it would necessary to shew that there was a practice some or class at the lower carrying person persons single prove rate. But a instance would be evidence to if followed up shewing and the smaller practice; repeatedly period was made at charge intervals over time, jurors would, the in explanation, absence be in and justified drawing, probably draw, would the inference that the others compariy during period carried at that for rats, lower consequently higher and was- ex- charge beyond tortionate as the statutable being limit equality." then proceeds authority He show that weight much in of this very view, citing many previous was favor and wherever the measure of cases; recovery is referred to “ it inis such terms as these: The might excess be recovered- back under a count had for'money received,” 240); (pi plaintiff “the fof overcharge under count recovered money received,” (pp. 241, 242). Referring had and Railway B. & Exeter (1861), S. Bristol and Co. Garton (1 quoted Note: This approval by court, sentence was with in . ) 145 S. ü. 277 CO. 229 v. INTERNATIONAL COAL R. R. CO. PENNA. Pitney, J., 230U. S. “If, as 243): sat, says (pp. he in which he had a ease case, the decision from the report appears

rather had and money that an action say far as to so went overcharge breach tne was not lie where received would as much charge equally, obligation statutable of the obligation law of the common breach if it had mistake; the decision was reasonably, I charge think Ry. Baxendale v. The Great Western was overruled Exchequer Court of 137, by B. Co., (N. S.) 16 C. judges out of the four comprised three Chamber, Exeter The Bristol & deciding Garton v. part who took Queen’s Bench.” in the Ry. Co., in which, some later cases for the

He then reviews first had with opinion arisen, a difference final re- time, that the concluding entitled to recover. sult Bramwell present concurred. Baron judges Four other not, however, re- 250) alone took a different (p. view; question damages, upon the measure of but specting Clause had been violated. Equality whether the majority judges of Lords The House followed judgment below, Chelmsford de- affirmed Lord which, discussing an elaborate after livering opinion, upon Equality which the violation of the the evidence proceeded'as (p. 262): he follows “The depended, Clause action; to be considered the form of the subject last .is whether action had and received will lie re- money an overcharges made carriage plain- cover back made absolutely relatively goods, charges tiff’s It argued to other for the defendants perseas. war- charge upon plaintiff’s packed parcels, being Viet., reason- being the 10 and ch.

ranted-by company, of able, and within the discretion absolute being plaintiff injured by persons was not other way of he charged less than wás. But -this is a fallacious not is viewing question. complaint The plaintiff’s are charged himself, that others less than fact J., 230 S. ü. Pitkey, their been less having entitled him claim the to of and beyond same-rate that all charge, that rate is overcharge. of very of charge fact the smaller to others is the ground overcharge Now, an to if complaint himself. .his charge to defendants were bound for the car plaintiff sum, a less riage goods they carry his refused to them payment greater sum, he was except amount compelled pay demanded, to not and could goods carried, otherwise his have case within the falls cases, in principle several decided which it has held which a had to money party compelled been-wrongfully pay under .circumstances in which he-was unable to resist imposition, may money recoveredback in an action for had and received. In the language of the Court Com mon Pleas, in the case Parker v. The Great Rail Western & way Company, 7 Man. G. 253—'‘The payments made were not but were voluntary, made to company order induce the they do were ” bound to them.’ do without Lord proceeds Chelmsford then decisions, to cite other showing that the Carton Case was erroneously decided, and was overruled Baxendale Case.

London Ry. & North (1878), Western Co. v. Evershed L. Cas. App. 1029; Eng. R. an 351; Rul. Cas. action a shipper to the carrier an amount recoverfrom equivalent rebates given another in violation shipper Equality Clause. The House Lords sustained of action, Lord (Ld,. Chancellor Cairns) 1035):. saying (p. one right, my “The mind, the clear undoubted right, is to public trader see that is receiving he railway company equal treatment with other traders the same kind doing same business supplying the same traffic. In my opinion that is the case with regard plaintiff, think therefore I he entitled moneys recover the he paid had under protest.” Lord 1035): Hatherly said (p. “My I Lords, have come it. v. PENNA. it. CO. INTERNATIONAL COAL CO. 231 Pitney, J., 230U. S. dissenting. conclusion. I same have been unable to see, since the of in

beginning argument, a case where there was this in difference the charge against respondent, how it could possibly said within case comes the well- established construction the provisions the 90th section of of of the Railways Clauses Consolidation Act. . . . (p. 1037). Therefore, I that- apprehend your Lordships pos- cannot sibly say that appellants are entitled dis- make this charge give tinctive to other traders rebate without giving respondent a return the money which he has of so in excess paid charge other people.- think the I money he has so paid, paid under can protest, now be back by recovered him.” It should be noted that the' "protest” was of course not as a treated condition prece- dent to the recovery. The word was used merely point out what were payments to; referred having been, there fact, protest respect payments in question.

Denaby Main Colliery Co. Manchester, & Sheffield Railway Lincolnshire (H. Co. L. 1885), L. R. 11 App. Cas. an 97, was a decision of appeal from the Court of. Appeal, in L. reported R. B. Div. Q. 209; and the case came there from the Division Queen’s (Matthew Bench and Day, JJ.), whose reported decision is L. R. 13 B.Q. Div. 674. The questions discussed the Divisional Court (a) certain "group were whether rates” constituted a violation of the Equality Clause Act,' Consolidation if 1845, and, so, damages whether the for breach of § were enactment limited!'to the amount of overcharges (and what was the measure such overcharges), recovered, whether general could- also be damages (b) an Whether action lay breach the Railway Canal Traffic Act, 2, in view of prohibition § of the same act; if arid, so, whether the breach this act were limited to the amount over charges, general whether damages could also be re The "group comprised covered. rates” the rates-from'

Pitney, J., district, to a number each of a certain the collieries England, towns and various places parts .

coal in the going any comprised one collieries places pass one of towns and must group these railway. of on the line colliery, defendant’s which was samp (13 The B. that the judges Q. 678) group held Div. and 1845, of 90 of of that the were a the act violation § with Ever- coüld be recovered overcharge in accordance ' that, shed’s This was on absence Case. the the ground of to for special charge circumstances justify for than carrying greater customer distance for one of 90 of the another, there was case within inequality § act damages for 1845. The whether the question breach of to the amount that section were limited or whether could also be overcharges, general not recovered, answered, was there was the because no ground statement of facts which an action for upon .general damages would With respect be maintainable. the act of it was an action did not lie held that for act, done anything contravention Evershed’s not an for such action, Case was since authority no point presented opinion there expressed it. very

In the (14 209), Court B. Div.. Appeal Q. forth,. special facts' of the court (per case are The set L. Lindley,' J.) affirmed judgment the Queen’s Bench Division that no respect action would lie breach of Railway and Canal Traffic. provisions Act,-1854, Next, it was “grouped held that rates” were not a violation of the act of because the termini were not same; reasoning being (p. 223) words only over the line” “passing portion same meant passing between the departure same points arrival, and passing over of. part other the line. no

But it was held that the Company had.violated Equality Clause charging to the defendant greater R. 00. v. PENNA. R. INTERNATIONAL COAL CO. 233 230 U. S. J., Pitney,

rates than those to one each Bannister; the coal ’ case from going this, defendants mine As Grimsby. n the court proceeded to,say (p.,226): “It' only remains consider what damages, sus- any, defendants have if tained by reason tolls, reduction of their company’s for the coal carried colliery defendants’ Bannister, and shipped at for the American Grimsby steamers points and for south of Harwich. The defend- ants in fact sent no Grimsby coals to ship- such ment, nor did they ever railway request company coals for If they such there shipment. had; carry is no réason suppose that would have been they charged more than . fact, Bannister. : . how- remains, ever, that at various times the.railway company did, defendants, carry coals to Grimsby for the Ban- nister, under the like circumstances, regards trouble and cost to the. and as coals company, regards got the defendants’ collieries over the of same portion the and the line; company charge did for Bannister the coals'so carried for than they charged less the de- him if the fendants; they defendants had that had shown thereby sustained pecuniary loss, they would have been entitled to Di- respqct recover in The damages thereof. visional has Court held the entitled to re- defendants overcharges cover to the made the prin- defendants.on ciple laid in' e., down Evershed’s Case,!, charges the made of for charges them excess the made to Bannister op similar But the does not what say services. court of or on of quantity coal, much the -coal how defendants’ carried, to calculated, is to be and we excess Grimsby, to.gee are unable how the is to fixed. This quantity be difficulty Case; did not prin- arise Evershed’s and the. of ciple that case seems to assess- inapplicable us ment of in this -It to cal- cáse. cannot right overcharge culate the on all sent by amount the coal the defendants Grimsby quan- .to without reference to TERM, 1912.

(cid:127)Pitney^ J., during which, rate was times less tity or the on-which, do not and, already stated, we Bannister, charged alleged to fix the over- dn amount principle see what , of this circumstances case the charge. peculiar Under justify which will any grounds not defendants have shewn for railway liable them holding company the court damages. is, therefore, nothing or There overcharges any on this head.” to be ascertained arbitrator (11 App. 97), Lords Cas. was held, In House of carried coal from a company railway that where the points along at different their of- collieries situate group all collieries with one uniform set line, charged the'Colliery the owners of respect carriage, of such arrival were not entitled to point nearest to the main- overcharges ground for on the merely tain an action in distance showed that the difference rate against a discrimination the shorter haul.' The Lords Appeal affirmed the decision of the Court the effect railway respect infringed had not the above (a) act of 1845. affirmed They provisions wo¡uld in this an action (b) particular case thé decision (cid:127) act of not lie breach because undue for. meaning within the preference prejudice, unreasonable of that whether act, proven. question had an action circumstances lies breach under (c) act of And question reserved. colliery Grimsby coal carried from appellants’ same time that less rates on were Bannister’s coal of its ultimate destination shipment because points American or for south of Harwich, steamers the of House of Lords affirmed the the of judgment Court Appeal that the allowances made to Bannister were a violation of of act Equality the Clause the of 1845.

But upon important the now question damages the of Lords the held (reversing Appeal) House Court that the of of overcharges, were entitled to recover the appellants the amount R. R. CO. v. INTERNATIONAL PENNA. COAL CO. 235 Pitney, J.', be to finding ascertained what coal carried quantity of the same circumstances portion under .and over the same the of at the charged higher line was to time appellants rate the the the lower rate to charged Bannister. was a among

There difference the Law Lords opinion as the Colliery to to Company whether entitled re- overcharge cover the amount computed upon tonnage them, entire transported only upon less that had tonnage been carried at rate for the reduced during Bannister The Lord Chancellor period. to (Halsbury) held the Earl of view; former Selborne and, Lord apparently, to latter. In the Blackburn, end, the view the Lord But prevailed. Chancellor all agreed Lords that an inequality shippers two for the same service was to be treated as conclusive evidence that the disfavored had been shipper overcharged; and that the rate differential —described as “overcharge” adopted measure of —was.to compensation be awarded for violation of the Clause., Equality Lord

The (p. 112): remaining Chancellor said “The question, namely, what appellants áre entitled recover from the company upon hypothesis they have been overcharged, does not one which seem me to be difficulty surrounded that has been assumed to exist. The this arbitrator, whom question go must vto back, will be able quantities coal the what: find appellants were charged, during railway when the periods company carrying rate; were Bannister at less if is laid down principle by your that the Lordships appellant’s coal ought, to have been I carried at the same am unable rate, see the difficulty the amount ascertdining overcharge.” Earl Selborne said “I topic (p.,116): agree with the arbitrator holding this to be a case overcharge, I question damages; should his question (upon answer Case authority Sutton’s TERM',

Pitney, J., 230 U. S. and of of Leon- opinion Lord St. Case, Eversheds Case, 186),.-by Macq. saying in Finnie’s ards to is the overcharge appellants of the' measure proper and that charged them, the amount between difference for deducting allowance) to (after Bannister, charged the same and under part railway over coals carried of circumstances, during periods the same time. same insuperable difficulty arising out of the there, then, any Is periods time, only these coals during not fact, made, allowances were but also these other which charged Bannister was the same on which coals, oyer distance, were carried same appellants, with the I do not think so. It under the same circumstancés? howmuch coal was carried at the reduced being known actually during, to me to periods-, Bannister these seems rate for in the result, established cases Sutton principle from charged that the Evershed, appellants ought have been And total up to, beyond, same reduced rate but not the same ihe and that this is during period time, quantity' ought overcharge, true measure the arbitrator for (with them credit. ... I think the Court give very prin- would be great difficulty, that there Appeal) if remedy were overcharge rejected, finding any other ciple of by way damages applicable to such case.” Blackburn, after what in the quoting Lord said (as above), .upon of Appeal quoted the question Court 124): “I damages, (p. way said satisfied with am L. Lindley,' J., in which deals with Eversheds Case, in which the Divisional it. the mode Court had applied I it cannot right think that amount calculate the on all the coal sent overcharge by the from defendants Grimsby colliery shipment, their without reference on which, of coal or the quantity which, time during the less rate was to Bannister carried coal colliery. the defendants’ arbitrator has not ' I do not tp think found, find in the he. l?ound R. R. COAL PENNA. CO. o. INTERNATIONAL CO. 237 ' J., dissenting. Pitney, case, part railway what the coals carried special with part carried over same only railway were so during time, carried Bannister as those think these coals charge to this extortionate. I make he will goes case back have find this order when the in which, amount, if any, can be ascertain recovered overcharge.” back as 125):

Lord FitzGerald said simply (11 App. Cas. Lords, I “My have read the two opinions elaborate which, my have delivered and been noble learned friend near my and ipe, and noble learned opposite, friend and I. entirely concur the order which it is proposed, to make, nothing have add.” Syllabus But the (11 App. 98) expresses Cas. view of Chancellor, Lord and the order judgment the. (p. that 126) prevailed. shows this view order was —“That

The the arbitrator must ascertain what coal carried quantity under the circumstances same of only and on the same portion the Une was at charged rate do the higher at the time the lower rate was defendants charged Bannister, fact coal was shipped on steamboats American the south Harwich not being a difference the circumstances; and so ascertain the amount the overcharge.” - very clear result these important three decisions ofLords the House was that amount of the difference towas money rates as so much unlawfully treated exacted disfavored shipper, recovered accord- ingly. is not the

There least doubt that Congress, passing the Interstate Act, Commerce had mind then these óf recent decisions English resort,8 court last intended adopt principle those cases had established with respect to the Equality of the act English Clause viz., as, that just law, at the common who a shipper had an unreasonable been rate could back recover TERM, 1912. J.,

Pitney, excess, so under the statute .he could lower treat customarily shippers allowed to other for the like had subjected service conclusive evidence he been overcharge, to an recover the difference. least, I extent,

To this deem the of the question for unlawful discrimination, contrary measure 2 of Act, the Interstate Commerce to be covered §to court, (145 previous decisions cited already 222; 253), 220 U. 283; 162 U. S. S. which pointed U. S. .Clause furnished the model Equality out that'the for §'2 Act, and it .adopted Interstate Commerce that had put upon the construction by Congress with decisions of the House Lords. these same Were I no should entertain doubt of nova, res the matter to adhering English the rulé. propriety right of Lords was Denaby House in the the Whether by allowing recovery aggrieved in Colliery Main Case the the rate differential as to upon applied based shipper it or whether should have been limited tonnage, his entire tonnage of the the favored exceeding to a tonnage if that allowed, was was less on rebate shipper which be a aggrieved may tonnage shipper, than the This case doubt. court question present some upon it. pass is nob called upon us not present before does the question

For the record recovery ought have been meas- the plaintiff’s whether shippers of the favored by tonnage ured (defend- The plaintiff allowed. error the rebates were court) did not any request ant in the trial take prefer the recovery upon that would have based exception no favored There was evi- computation tonnage. dence, tonnage; being of the amount it indeed, that of all coal shipped by appear liia'de simply fa (one Company shippers) Berwind-White rored during rebating, only per period centum coal on which rebates were allowed. much contract How R. R. CO. INTERNATIONAL COAL CO. PENNA.

(cid:127) Pitney, J., S.U. did not Company shipped appear, Berwind-White

and so it that 10 centum may properly presumed per shipments its would amount to more than the- total the plaintiff’s shipments. did instruct

Defendant the trial court to request if rate jury the lower accorded other shippers not justified, “the'amount which is entitled plaintiff is recover rate measured the difference between the ton which per paid all its during such shipments rate period, and the ton per which the other shipper paid on his its whole volume of such shipments during as period.” This, correctly- the Circuit Court of Appeals held (173 Fed. Rep. 6), in effect requested court charge, fixing the of recovery, measure not the lowest rate the railroad to another shipper, but the general average paid on all shipments made by such shipper. I with agree that court view that ip the Congress made' no such rule. It is anything inconsistent with the English cases, or in any case this country to which attention called.

The conclusion this court that right to recover such a' as the present case “is limited to pecuniary loss suffered and proved,” and that the fact that greater charges are exacted from his than from for the competitor like is not service of such evidence loss, is, so far as pecuniary I have to discover, been able entirely' unsupported authority. Parsons Case 460) (167 U. S. is cited as authority, my but view is not be properly so considered, already for reasons fully explained. Thé case” is Knudsen- “only other' Ferguson Fruit v.Co. R. Co., Central Fed. Michigan 148 974. This was an Rep. 968, action to recover a sum -claimd to have been unlawfully for icing- exacted the of a carload fruit. At p. said, 974 the court arguendo: “To support recovery a under this section there must be a show- 8] [§ ' ing of some specific . pecuniary injury. . . He [the

240 J., dissenting. Pitney, 230 S.U.. either, must show that there has been some shipper] charge or excessive unlaw imposed, unreasonable some Mm.” practiced against As this court' ful-discrimination an present that in the case unlawful holds discrimination the dó not anything practiced‘against shipper, I see its deprive right recover, Knudsen in the Case & damages. Central Coal Coke question or to affect the and Meeker Hartman, Lehigh Fed. v. Co. v. Rep. Rep. 548, were actions to Valley R. recover Co., Fed. under the Anti-trust Act; treble Sherman careful, court 551) point the out latter case the (p. was not seeking redress a shipper, the that Pennsylvania as a sued carrier Hoover v. . nor was the defendant 220, 224, 156 Pa. was an action upon . St. Co., R like the Interstate statute, not, Commerce Pennsylvania right -of action injured for. party Act, giving sustained,” making offending carrier “damages' for injured damages treble the amount' party “liable court no for its authority cited suffered.” injury did not freight in the' the difference decision n damages. for amount of the single furnish measure remedy penal character Evidently because adopting would what otherwise court shrank normal rule the amount determining deemed injury. Co., hand, Chicago Ry. Cook &c. the other On ais distinct 551, 563, authority proposition Iowa, accomplished of discrimination in rates a case rebating, the amount the rebates furnishes means “The damages; saying: only court the measure fairness be made is that after finding that can reasonable; the rate was and that rebate deducting from the was unreasonable exaction plaintiffs To unjust.” them against same effect discrimination 517, 525, Wilson, Indiana, &c. R. Co. v. Louisville more favorable an instruction where allowance R. CO. INTERNATIONAL v. R. COAL CO. PENNA. Pitney, J.,

230 Ü. S. entitled the shipper another rates to recover was on appeal. sustained difference, ignores practical decision The present construction invariably placed upon that has act the Inter- Commission. state Commerce Transcontinental Bureau,

In Burgess Freight 13 I. C. Commission ruled upon C. the precise ques us, in with dealing tion how before a case of rates held se, only so excessive held per compari result of son between the under attack and other'rates cus tomarily charged. complainants claimed reparation shipments by reason of old under rate. Defendants reparation denied that such should awarded, be even opinion were of the though the Commission that that rate and this excessive, “for the reason that no damage ” part the-complainants has been established. It appeared market was not affected rate, freight had’ and that the been added to the paid price .by it consumer; and was insisted that complainants freight who had-paid this rate had not been in actually jured. “Such is not, The Commission said: in our opin ion, meaning of this term proper [damage]. These complainants shippers wore of hardwood lumber to this destination,- they were entitled to a reasonable rate from the defendants the service of transportation: An rafe unreasonable fact exacted. They were thereby legal right, deprived of and the of their measure damage between the difference the rate to which they were en theTate n whichthey titled and were compelled to pay. If obliged complainants were every follow transaction to result, and its ultimate out the trace exact commercial effect of rate paid, would the,freight never possible daffrages show with accuracy sufficient- to justify giving Certainly them. these are defendants not entitled to this they money have taken from complainants, not ought say be heard to they they should .you. -ccxxx —16 U,

Pitney, J., dissenting. S. this' amount the complain- to refund because required have obtained some of this may portion ants themselves commodity transported.” from the consumer sum has theory reparation that been awarded upon It is from the After an exam beginning. by the Commission reports of their decisions as exhaustive as ination I disposal permit, entirely would think it my the time at cases reparation the thousands to say safe upon, reparation has not been refused passed have been at all those of the case resembling circumstances under has been allowed it reparation wherever bar; differential, and awarded has based rate been paid freight, regard who without shipper his charged against consignee. or not he it over whether cases, adopted has in all whether the rule same un complainant have been deemed not; indeed, or where they se have been per reasonable ordinarily it has been done as the result thus denounced (cid:127) the rate under attack and other between comparison cited in traffic. Illustrative decisions are rates on similar 1 margin. 1 published because Reparation reason rates held unreasonable discriminatory, irrespective they were otherwise extor of whether tionate. 422, 523; 418, 434; 16 I. C. C. 426; C. C. 14 I. C. C. 12 I. C. C. 14 I. 259; 219; 212, 18 I. C. 528; 578; 18 I. C. C. 18 I. C. C. C. 17 I. C. C. 550; 18 I. C. C. 580. in excess of

By published rates held unreasonable because reason of voluntarily established the carrier. rate afterwards 577; 141; 118; 14 I. C. 14 I. C. C. 13; 12 I. C. C. C. 16 12 I. C. C. 293; C. 450; I. 20 I. C. C. 104. 190, 192; I. C. 16 C. I. C. 16 C. C. rates held unreasonable because excess of By published reason of by the Commission. rate afterwards established 205; 253; C. I. C. 417; 12 I. C. 17 I. C. 17 C. C. C. I. C. 333; I. C. C. 301. resulting

By from error reason of rates held unreasonable because chargeable routing to the carrier. 527; I. C. C. 327. 14 I. C. C. CO. R.R. INTERNATIONAL COAL

PENNA. CO. 243 J., Pitney, 230 U. court, very saying plainly

This what while the word mean, does not “damages” reaches its conclusion determining what the word does without mean. is It said “ damages may be same as the rebate, that the or less rebate, many greater times than the than the rebate.” in the case under It said that consideration there was no proof injury, business, “no decrease in proof loss incurred, expense profits, damage sort suf- is said that “If plaintiff fered.” It and one of the favored companies had both coal to the shipped sainé market on day, rebate on may contract coal given have advantage may an have prevented plaintiff may selling, directly have caused it expense, may have totally destroyed diminished its profits. The plaintiff, statute, present any under the such case .being then full damages entitled to recover the But sustained.”. as contract coal of favored shipper had long been sold 1899, (prior April latest), before I am unable to reasonably be see how it can supposed that the rebate plaintiff could prevented have from selling, or have or have expense, caused it diminished or its destroyed upon coal that profits happened to reach destination on day. What, then, is to be the of damages? measure What- be, apparent it is to it is ever that we must henceforward simple abandon direct method of computing the published per By sc. reason rates held unreasonable 525; 577; 469; 14 C. 14 I. I. C. 16 I. C. 20 I. C. C. C. O. 12; C. 2Ó 22 104; I. C. 283. 1. V. C. C. By published reason held higher unreasonable because than route. obtainable another

I.12 C. 141. C. By of published reason rates held exceeding unreasonable because (he (he sum of locals. 549; I. C. C. 573; 13 C. 14 14 154: I. C. C. 1. C. 336: 14 14 I. C. C. C. 339; 21 I. C. 293; 579; I. C. 16 C. 1. C. I. C. I. C. 318: C. C. C. 215. S. J., U.

Pitney, differentials, amount ascertaining and therefrom rate respecting enter into reparation, inquiries of the must whether, upon the market, and ascertain the state of the reached goods injured party of the date that'the precise by the of the like character owned market, goods- with them. competition came into direct favored shipper utterly to me to be impracticable, All of this seems result any such Congress I intended cannot believe language it employed-. to follow from Colliery Case Denaby under the rule of the It is said that dealers, if there each were, say, five would follow tons, only aggre- to one of whom rebates shipping 10,000 allowed, be $3,500 "had been each of the five would gating $3,500 on their much entitled as to recover as 10,000 ver- each, tons and the five shipments several $17,500 because of the payment aggregate dicts would But if Act is to $3,500 shipper. to the favored force, it estopping must be be vital construed given charged, actually saying the carrier from the amount a ship- rebate, is less than ought less the $3,500 to tons; 10,000 ment of and if he himself rebates rebate the same shipper, requirement one that he others, carrier. It does not penalize each four do rate which him to service for all at the simply requires in dealing shipper. he has fixed with the favored himself legalized, this I see that would “create h Nor can If from the tariff.” is endless, departures chain § English rule it strictly in accordance with the enforced from tend to very clearly prevent any departures will tariffs. lawfully established strange deny matter

It seems to me a of the view shipper, by reparation specie aggrieved direct to him an amount to leave net payment sufficient customarily rate to him rate equal the lowest charged to a and to base this denial competitor; by do theory reparation more harm than will good, R. PENNA. R. CO. CO. COAL INTERNATIONAL ¶. J., 230 U. S. Pitney, from departures an tariff.” creating “endless chain course, would be if there five ship- the result were Of unlawfully, one them pers, .given rebates were by legal compulsion required then were carrier others, give equivalent rebates to the would con- “departures stitute five from the tariff” instead one. are it, provided shippers thereby what matters the five But against re- upon equal footing? prohibition an The put discriminations, also requirement bates and other published rates, compel of established and intended to are by shippers. fair and treatment the carrier of all I equal só can see in the act rates nothing published that makes sacred that carrier must departures them re- because to redress the will go unredressed, grievance in the treatment of quire departure. Equality further published shippers act; is end aimed paeans so exalt the are but that end. We should of the Act. object sight means as to lose end and to, Besides, to be adhered theory if the of the opinion rates as there necessarily many there will as different of the disfavored are differences circumstances rebates other rate who seek redress because of shippers réceivé dam- may One aggrieved party discriminations. the discrimina- money beyond equivalent far ages another may still re- may less; receive much tion; another to the outcome all. If look nothing at we were to ceive the equality actions for violation of provi- these private amounting as Act, of the and treat them sion rate, the inevitable freight determination end court) theory adopted by,the would be (on the result result in dif- many as carrier would one violation dis- shippers there to be were different ferent rates against. criminated present I ask: in the great respect, again What,

But, with damages? plaintiff, case, is to be the measure tons of in two years, coal 40,000 aggregating shipments 1912.. Pitney, X, dissenting. $12,000 charged

has been about more competitors its .than charged during have been the same period for the same The has actually service. paid bills freight Upon to the railroad company. record, face plaintiff’s expense by account has been actually increased $6,000 per annum, amount as its compared with competitors. things Other being equal, the profits plaintiff, production and safe of 40,000 tons $12,000 less than coal, otherwise they .were would have appear been. does not that It things other not were is, equal. the decision Yet there is “no proof incurred, . . . injury, expense dfimage any sort full payment suffered.” Is not the freight as bill, com- pared bill, reduced freight “expense with a an incurred’’? could What other be expense incurred by at- a shipper, tributable to a' discrimination rates? opinion says: course,

The “Of part no of such payment of lawful rates can treated as an an overcharge Having extortion. paid lawful only rate, plaintiff overcharged, was though not il- shipper the favored legally undercharged.” This is only unsupported authority, is, submit, I inconsistent the result with reached in case. present decides court plaintiff is injured, and entitled to maintain action an against the carrier under because the carrier has col- § lected less compensation favored for the shipper like service. The were rebates merely the device which the discount from published rates was accom- plished. How such an action all, can except lie..at 2 makes .§ published otherwise lawful rates un- lawful and extortionate when less rates are favored shippers, through device rebates or other- It wise? seems play upon a mere say words to that.“the shipper favored illegally undercharged.” Certainly it is right not to him that action given short, In the opinion treats the imposition of the “lawful COAL CO. v. PENNA. R.

MITCHELL R. CO. .Syllafaps. S. 230 U. is, published

rates” —that rates —as unlawful for the establishing injuria, they but insists that purpose must be treated as lawful when we come ascertain the damnum. sine damno. Injuria is, paradox:

The legal result but plaintiff wronged, sue, The not harmed; may may not recover.

If' rate differential is not element of a dam- proper brought courts, in the it will ages suppose actions I for the to it. be Commission to adhere Yet the proper adopting any sheer other measure impossibility dam- reparation in the multitude ages, eases Com- is perfectly has to deal with, mission obvious. result, whole, private is a denial virtual

remedy for the most common harmful of dis- those criminations that the Interstate Commerce Act was de- prevent to redress. signed COAL AND COKE COMPANY

MITCHELL COMPANY. RAILROAD PENNSYLVANIA THE UNITED TO THE DISTRICT COURT OF STATES ERROR OF PENNSYLVANIA. FOR THE DISTRICT EASTERN 9, June 1912. —Decided No. 674. Submitted December Co., ante, p. fol- Pennsylvania Railroad Co. Coal v. International of a jurisdiction brought case courts effect have lowed to damages actually sus- against a carrier for the amount shipper a carrying full tariff when charging him it was by him for tained shippers for other at lower goods the same distance by proof damages the amount must sustained as to such but that thereof. jurisdiction brought by shipper against suit have not The courts similar paying shippers reason other carrier

Case Details

Case Name: Pennsylvania Railroad v. International Coal Mining Co.

Court Name: Supreme Court of the United States

Date Published: Jun 9, 1913

Citation: 230 U.S. 184

Docket Number: 14

Court Abbreviation: SCOTUS