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6. As to all persons who did sell coal at Bellefonte, they were charged the same freights precisely as were charged to the plaintiffs. This is the undisputed testimony.

Let us now see what is the voice of the authorities upon the subject of discriminations in freight charges by carrying companies. 133 The subject is an old one. Prior to any statutes in England, or in this country, the common law had pronounced opon the rights and duties of carriers and freighters, and in the enactment of statutes little more has been done than to embody in them the well-known principles of the common law. It happens, somewhat singularly, that the very question we are now considering, of a discrimination in the rates charged to coal-dealers and to manufacturers who use coal as a fuel does not appear to have arisen. And yet it is very certain that such discrimination does prevail and has prevailed for a long time on all lines of railway and canal. It is highly probable that the absence of litigation upon such discrimination is due to the general sentiment of its fairness and justDESB. Within the writer's knowledge in the section of the state in which he lives a much greater difference between the rates charged to dealers and those charged to manufacfacturers by the coal-carrying companies has always existed, and now exists, without any question as to its justness or its legality. It is matter of public history that along the valleys of the Lehigh and Schuylkill there are great numbers of blast furnaces, rolling-nuills, rail-mills, foundries, machine-shope and numerous other manufacturing establishments which consume enormous quantities of the coal output of the state, and at the same time in every village, town and city which abound in these regions an immensely large industry in the buying and selling of coal for domestic consumption is also prosecuted. And what is true of the eastern end of the state is without doubt equally true throughout the interior and western portions of the commonwealth, where similar conditigns prevail. Yet from no part of our great state has ever let arisen a litigation which called in question the legality, er the wisdom, or the strict justice of a discrimination favorable to the manufacturing industries as contrasted with the coal-selling industries. This fact can scarcely be accounted for except opon the theory that such discrimination, as has thus far transpired, has not been felt to be undue, or unreasonable, or contrary to legal warrant. In point of fact it is perfectly well known and appreciated, that the output of

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freights from the great manufacturing centers upon our lines of transportation constitutes one of the chief sources of the revenues which sustain them financially. Yet no part of this income is derived 234 from those who are mere buyers and sellers of coal. When the freight is paid upon the coal they buy, the revenue to be derived from that coal is at an end. Not so however with the revenue from the coal that is carried to the manufacturers. That coal is consumed on the premises in the creation of an endless variety of products which must be put back upon the transporting lines, enhanced in bulk and weight by the other commodities which enter into the manufactured product, and is then distributed to the various markets where they are sold. In addition to this, a manufacturing plant requires other commodities besides coal to conduct its operations, whereas a coal-dealer takes nothing but his coal, and the freight derived by the carrier from the transportation of these commodities forms an important addition to its traffic and constitutes a condition of the business which has no existence in the business of carrying coal to those who are coal-dealers only. Thus a blast furnace requires great quantities of iron ore, limestone, coke, sand, machinery, lumber, fire-bricks, and other materials for the maintenance of its structures and the conduct of its business, nono of which are necessary to a mere coal-selling business. These are some of the leading considerations which establish a radi. cal difference in the conditions and the circumstances which are necessarily incident to the two kinds of business we are considering.

Another important incident which distinguishes them is that the establishment of manufacturing industries and the conducting of their business necessitates the employment of numbers of work men and other persons whose services are needed, and these, with their families, create settlements and new centers of population, resulting in villages, towns, boroughs, and cities, according to the extent and variety of the industries established, and all these in turn furnish new and additional traffic to the lines of transportation. But nothing of this kind results from the mere business of coalselling. In fact that business is one of the results of the manufacturing business, and is not co-ordinate with it. The business of the coal-dealer is promoted by the concentration of population which results from the establishment of manufacturing industries, and these two kinds of business are not

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competitive in their essential characteristics, but naturally proceed together, side by side, the coal-selling increasing as the manufacturing increases in magnitude and extent.

235 These considerations are generic, and are suggested for the purpose of illustrating the differences between the fundamental conditions and circumstances of the two industries we are considering.

Recurring now to the authorities, we find that the British statute of 17 and 18 Victoria, chapter 31, 1854, is perhaps the earliest instance of direct legislation upon this subject. That statute prohibited "undue or unreasonable preference or ad. vantage" in transportation charges, but lacked the restricting words, “ from the same place upon like conditions and under similar circumstances," which appear in our Act of 1883. Yet it was held in the cases of Ransome v. Eastern Counties Ry. Co., 1 Com. B., N. S., 437, and Oxlade v. North Eastern Ry. Co., 1 Com. B., N. S., 454, that it was competent to a railway company to enter into a special agreement for the carriage of goods for a particular individual or company, at a lower rate in respect of large quantities of goods and longer distances than for one who sends them in small quantities and shorter distances. In Rangome's case it was said by Creswell, J., in delivering the opinion of the court: “After a good deal of consideration, we think that the fair interests of the railway ought to be taken into the account."

In the case of Nicholson v. Great Western Ry. Co., 5 Com. B., N. S., 366, the same doctrine was held, and it was also held that the second section of the Railway Traffic Act, 17 and 18 Victoria, chapter 31, was not contravened by a rail. way company carrying at a lower rate, in consideration of a guaranty of large quantities and full train-loads at regular periode, provided the real object of the company be to obtain thereby a greater remunerative profit, by the diminished cost of carriage, although the effect may be to exclude from the lower rate those persons who cannot give such a guaranty. Crowder, J., said in the opinion: “When the statute speaks of undue and unreasonable preference or advantage,' and Sundue or unreasonable prejudice or disadvantage,' it uses language implying that there may be advantage to one perBon or one class of traffic and prejudice to another, which would not be within the Act of Parliament. The preference and prejudice must be 'undue' or 'unreasonable,' to be within the statute. And although in the case now before

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the court it is quite manifest that the Ruabon Coal Company have many and important advantages in carrying their 286 coal on the Great Western Railroad, as against the complainants and other coal-owners in the forest of Dean, still the question remains, are they 'undue' or 'unreasonable' advantages? This mainly depends upon the adequacy of the consideration given in return to the railway company for the advantages afforded to the Reabon Coal Company."

The justice then proceeds to show that it was to the advantage and profit of the railway company to carry coals for the Ruabon company at a lower rate than for the complainants, and concludes in the language of the syllabus above quoted that this was no violation of the act. All of the foregoing cases recognize the proposition that if the interest of the railway company was subserved by charging the lower rate to the one company than to the other the act was not violated, That conclusion was reached in a case where the complain. ant was in the same business with the favored company, and was injuriously affected by the discrimination, but the court held that this was permissible if the interests of the railway company were thereby subserved.

With how much greater force can it be said that here, where there is no competition in the disposal of the coal of the plaintiffs and the products of the nail company, and also where the inducement to the defendant to make the lower rate for the nail company is a largely increased traffic on the defendant's road, neither the letter nor the spirit of our Act of 1883 was violated.

The doctrine of the cases above cited was also declared in the case of In re Baxendale v. Great Western Ry. Co., 5 Com. B., N. S., 353, where Cockburn, J., said: “If an arrangement were made by a railway company, whereby persons bringing a larger amount of traffic to the railway should have their goods carried on more favorable terms than those bringing & less quantity, a court might uphold such an arrangement as an ordinary incident of commercial economy, provided the same advantage were extended to all persons under the like circumstances.” This latter incident would of course be essential where all of the favored class were in the same business.

In the case of Messenger v. Pennsylvania R. R. Co., 37 N. J. L. 531, 18 Am. Rep. 754, cited for the appellee, the court was careful to say that, “ It must not be inferred that a common carrier in adjusting his price cannot regard the particular

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circumstances of the particular 337 transportation. Many considerations may properly enter into the agreement for carriage or the establishment of rates, such as the quantity carried, its nature, risks, the expense of carriage at different periods of time, and the like; but he has no right to give an exclusive advantage or preference in that respect to somo over others for carriage in the course of his business."

In that case there was a very clear preference to one party over all others in the same business, by the railroad company giving him a specific drawback upon freights on hoge carried from the same points, and of course as this was direct preference over all others it was in violation of the law. But that decision has no application to this case.

In the case Interstate Commerce Commission V. Baltimore etc. R. R. Co., 145 U. S. 263, it was held that the issue by a railmay company engaged in interstate commerce, of a party-rato ticket, for the transportation of ten or more persons at a rate less than that charged to a single individual for a like trangportation on the same trip did not make an unjust or unreaBonable charge, nor an unjust discrimination, nor give an undue or unreasonable preference or advantage to the purchasers of the party-rate ticket, within the meaning of the several provisions of the Interstate Commerce Act of 1887. There was much discussion of the general subject of the prohibitions of the general statute in the opinion of the supremo court of the United States in this case, from which it will be instructive to present some quotations. The English Traffic Act of 1854, above referred to, was fully considered, and the cases of Oxlade and Ransome, and others herein before cited, were recognized and followed. Amongst other things it was said by Mr. Justice Brown, who delivered the opinion: “It is uot all discriminations or preferences that fall within the inhibition of the statute; only such as are unjust and unrea. sonable. For instance, it would be obviously unjust to chargo A a greater sum than B for a single trip from Washington to Pittsburgh; but, if A agrees not only to go but to return by the same roate, it is no injustice to B to permit him to do so for a reduced fare, since the services are not alike, nor the cir. cumstances and conditions substantially similar, as required by section 2, to make an unjust discrimination. Indeed the possibility of just discrimination and reasonable 188 preferences is recognized by these sections in declaring what shall

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