First. The withdrawal of the B. & O. R. R. from the through route would prevent Cincinnati from any longer competing with Baltimore at Augusta.

Second. It would deprive Augusta of the benefit of the competition afforded by Cincinnati.

Third. It would deprive the defendant railroad companies from carrying any traffic from Cincinnati to Augusta, which competes with similar traffic carried from Baltimore to Augusta.

Is it possible that Congress intended to destroy not only competition between railroad and railroad, but also competition between market and market, and between product and product?

UNION PACIFIC R. Co.

v.

GOODRIDGE et al.

(U. S. Supreme Court, May 15, 1893.)

Carriers-Rates-Statute Forbidding Discrimination.-The Colorado act of 1885, prohibiting railroads from charging one person or corporation a greater sum than it charges any other for a like service, upon like conditions, and under like circumstances, is of the same nature as the Interstate Commerce Act, and like that was designed to prevent unjust discrimination and extortion in rates. The act was intended to put all shippers on an absolute equality, saving only a power in the railroad commissioner to except special cases. The act also recognizes the fact that it is no proper business of a common carrier to foster particular enterprises or to build up new industries.

Considerations for Discrimination.—A carrier cannot justify discrimination in rates by alleging that the favored shipper was allowed the lower rates upon considerations which are satisfactory to it.

Same-Claim for Damages-Selling Coal to Company.-An unexplained, indefinite, and unadjusted claim for damages arising from a tort, which has never been prosecuted to a final determination in the courts, cannot be put forward by a railroad company as an excuse for a clear discrimination in rates between different shippers of coal. Nor is it any justification that the discrimination was made in consideration of one shipper selling coal to the railroad for its own use at a certain price.

Same-Cost of Mining Coal.-Discrimination in rates for the carriage of coal cannot be justified on the ground of the cost of mining coal to the shipper, in whose favor the lower rate is made, and any evidence as to the cost of mining is irrelevant. Under the statute the right to charge a certain rate does not depend at all upon the fact whether the company's customers are making or losing money.

Damages Recoverable for Discrimination.-A shipper discriminated against in the matter of rates by a railroad company is entitled to recover as damages the amount to which the favored shipper was given the preference; whether he lost profits by reason of such preference is too remote to be made an element of damages.

IN error to the circuit court of the United States for the district of Colorado.

This was an action at law by the firm of Goodridge & Marfell, coal merchants, carrying on the business of mining coal at Erie, Colo., and of selling the same at Denver, against the Unioh Pacific Railway Company, to recover triple damages, under a statute of Colorado, for an alleged unjust discrimination in freights upon coal from Erie to Denver.

The statute which was the basis of this action, together with a corresponding clause of the state constitution of Colorado, so far as the same are material to this case, are set forth in the margin.'

The amended complaint alleged the defendant to be a common carrier, chartered by an act of Congress, and operating a line of railroad from Erie and Marshall, at both of which

'Const. art. 15, § 6: "All individuals, associations, and corporations shall have equal rights to have persons and property transported over any railroad in this state, and no undue or unreasonable discrimination shall be made in charges or in facilities for transportation of freight or passengers within the state, and no railroad company, nor any lessee, manager, or employé thereof, shall give any preference to individuals, associations, or corporations in furnishing cars or motive power."

No rail

Sess. Laws Colo. 1885, p. 309: "Sec. 7. Unjust Discrimination. road corporation shall, without the written approval of said commissioner, charge, demand, or receive from any person, company, or corporation, for the transportation of persons or property, or for any other service, a greater sum than it shall, while operating under the classification and schedule then in force, demand or receive from any other person, company, or corporation for a like service from the same place, or upon like conditions and under similar circumstances; and all concessions of rates, drawbacks, and contracts for special rates shall be open to and allowed all persons, companies, and corporations alike, at the same rate per ton per mile, upon like conditions, and under similar circumstances, except in special cases designed to promote the development of the resources of this state, when the approval of said commissioner shall be obtained in writing." etc.

"Sec. 8. Extortion. No railroad corporation shall charge, demand, or receive from any person, company, or corporation an unreasonable price for the transportation of persons or property, or for the handling or storing of freight, or for the use of its cars, or for any privilege or service afforded by it in the transaction of its business as a railroad corporation, and not specified in the classification and schedule prepared and published by such railroad corporation. The superintendent, or other chief executive officer of each railroad in this state, shall cause to be kept posted up, in a conspicuous place in the passenger depot in each station where passenger tickets are kept for sale, a printed copy of the classification and schedule of rates of freight charges then in force on each railroad, for the use of the patrons of the road. Any railroad company violating any of the provisions of this section shall be deemed guilty of extortion, and be subject to the penalties hereinafter prescribed.

"Sec. 9. Penalty. Any railroad corporation that shall violate any of the provisions of this act as to loading points, freight cars, unjust discrimination, or extortion, shall forfeit, in every such case, to the person, company, or corporation aggrieved thereby three times the actual damage sustained or overcharges paid by the party aggrieved, which triple damages shall be adjudged to be paid, together with the costs of suit, and a reasonable attorney's fee, to be fixed by the court, and taxed with the costs."

were located certain coal mines, about 35 miles, to Denver; that if there were any difference in distance it was in favor of Erie, by about 2 miles, and that the published schedule of freights for coal was the same, namely, $1 per ton from each place; that plaintiffs, while operating their coal mines from Erie, between October 31, 1885, and August 12, 1887, shipped to Denver 12,960 tons and 1,625 pounds of coal, for which they paid defendant $12,960 and a fraction, being at the rate of $1 a ton, believing that such was the regular schedule rate charged the general public and all parties similarly situated for such service, there being no difference or discrimination between such rates as between Erie and Marshall to Denver; that the Marshall Consolidated Coal Mining Company at the same time operated coal mines at Marshall, and was engaged in shipping coal over defendant's road to Denver under the same circumstances as the plaintiffs, except as to rates, and was a competitor with the plaintiffs; that the amount of such shipments was about 145,833 tons, the defendant charging such company 60 cents per ton, and allowing a rebate of 40 cents from its schedule rates; that plaintiffs are informed such rebates amounted to upwards of $58,000, and that the defendant in this manner, without the approval of the railroad commissioner, demanded and received from the plaintiffs the sum of $5,184.30 more than it received from the Marshall Consolidated Coal Mining Company (hereinafter called the Marshall Company) for like services, upon like conditions, and under similar circumstances, without the knowledge or consent of the plaintiffs; that the defendant in this manner, and to this extent, allowed the Marshall Company drawbacks or rebates for carrying its coal, which were not open to and allowed all companies and corporations alike, at the same rate per ton per mile; that these rebates were made secretly and clandestinely in favor of the Marshall Company, with the design to deceive and mislead the plaintiffs, and fraudulently conceal from them the facts relating to such rebates, and did so conceal them until about August 12, 1887; and that the plaintiffs were misled and deceived by these devices and practices, and remained in ignorance of the same until such date.

The plaintiffs further alleged that defendant had granted other parties, similarly situated, the same rebates for the carrying of coal over its road from Marshall, and further charged that all the coal shipped by the plaintiffs and the Marshall Company was about the same quality, and cost the defendant the same amount to handle and ship over its lines, and that the charges made by the defendant were unreasonable, unjust, and extortionate; that plaintiffs had demanded of defendant reimbursement of the overcharges, which had been refused,

by reason of which they asked judgment in the sum of $15,552.90, being three times the amount alleged to have been extorted, at the rate of 40 cents per ton on all coal shipped by them.

The answer set up a general denial of each and every material allegation in the complaint, and special denials that defendant had allowed the Marshall Company a rebate of 40 cents per ton, or that it had charged plaintiffs more than it had charged the Marshall Company for like services. For a second defence the defendant alleged that in January, 1880, the Denver, Western & Pacific Railway Company, a Colorado corporation, was engaged in building a railroad from Denver to Boulder, and in so doing passed over certain coal lands belonging to one Langford and others, known as the "Marshall Coal Mine"; that in constructing its line it negligently broke into the mine, in consequence of which it was claimed the mine took fire, and destroyed large amounts of coal, and continued to burn for several months, to recover which damages suits were instituted by the owners of the mine against the railroad company, which were litigated for several years; that in addition to such damages the company had failed to obtain a right of way across the mining lands; that in January, 1882, a judg ment was also obtained against the company, in the sum of $64,000, upon a mechanic's lien, of which judgmeut the Union Pacific subsequently became the owner, as well as of a large number of the bonds of the said company; that the road was subsequently sold and came into the hands of the Union Pacific, and in 1885 a corporation was formed under the name of Denver, Marshall & Boulder Railway Company, which was owned and controlled by the Union Pacific, and which proceeded to construct its road from Denver to Boulder, and that the claim against the Denver, Western & Pacific had become, and still remained, a lien upon the property in the hands of the Denver, Marshall & Boulder Company; that in 1885 the said Langford and others sold the Marshall coal mine to the Marshall Company, which thus became the owner of the mine, and also, by assignment, the owner of the claim for damages done to it by the Denver, Western & Pacific Railway Company; that in 1885 the Union Pacific was the owner of a certain coal mine at or near Louisville, Boulder county; that in addition to the liens above stated there was also a bonded indebtedness of about $1,000,000 upon the Denver, Western & Pacific, secured by a mortgage, which was foreclosed in 1883, and upon such foreclosure the owners of the Marshall coal mine answered, setting up their claim for damages to the extent of $81,000; that the property was subsequently put up, and sold at master's sale, under degree of foreclosure, the

rights of Langford and others not being adjudicated at that time, and that upon such sale the title was acquired by parties acting in behalf of the Union Pacific, which had become the owner of a large number of the mortgage bonds; that for some time prior to Öctober 13, 1885, defendant was receiving coal for its locomotives from the Union Coal Mining Company, which was the owner or lessee of certain coal mines at Erie and at Louisville, and had been engaged in working the mines and furnishing the defendant with coal; that about the same time the Marshall Company had become the owner of the coal lands formerly owned by Langford and others, and that on account of complaints that had been made by the owners of other mines the defendant concluded that it was for its best interest to discontinue its connection with the Union Coal Company, and for that purpose it entered into negotiations with the Marshall Company for the purpose of inducing this company to take off its hands the mines of the Union Coal Company; that it was further induced to enter into this contract by the fact that the Marshall Company had succeeded to the rights of the former owners of the Marshall coal mines, and to their claim for damages against the Denver, Western & Pacific, and for the purpose of getting rid of the operation of the Union coal mines, and of settling this claim for damages, it entered into a contract with the Marshall Company on the 13th day of October, 1885, in which it was recited that, it being for the interest of the Union Pacific to discontinue the. working of the Union coal mine, and to contract with the Marshall Company for all the coal needed for its own consumption on its road and branches, not to exceed 50,000 tons for the first year, and 100,000 tons for every year thereafter, therefore, in consideration of the Union Coal Company going out of the coal business, and the purchase from the Marshall Company by the defendant of the coal used for its own consumption at the rate mentioned therein, and in consideration of the rates for the tranportation of coal therein agreed upon, the coal company agreed to furnish from the Marshall mine all coal or dered by the railway company for it sown use and consumption, and the use of its branches, not exceeding 50,000 tons the first year and 100,000 tons per annum thereafter, and to deliver all coal on board of the cars of the Union Pacific at the mouth of the mine, at a price not to exceed $1.25 per ton, delivered and loaded on the cars, and, if such cost was less than $1.25 per ton, then at actual cost.

It was further agreed that the defendant should give to the Marshall Company for the transportation of its coal the regular tariff rate, not exceeding $1 per ton, unless 200,000 tons should be mined and furnished for transportation yearly, in