CARPENTER, J., IN BOERTH v. DETROIT CITY GAS CO.

152 Mich. 654. 1908.1

Did the making of a 60 cent rate to those who use gas engines constitute an unjust or unlawful discrimination entitling complainant to relief? Defendant does discriminate in its charges for gas. It charges those who use gas for illuminating purposes 90 cents per 1,000 cubic feet; those who use it for fuel purposes 80 cents per 1,000 cubic feet; those who use it for power 60 cents per 1,000 cubic feet. The discrimination between the use for illuminating purposes and fuel purposes was authorized by the ordinance of the city of Detroit. The discrimination between the use for fuel purposes and the use for power purposes was not authorized by that ordinance. The ground of that discrimination is this: That those who use gas for power purposes use on an average much more than those who use it for fuel purposes, and that if they could not get it at the reduced rate they would use some other material for the purpose of creating power. Counsel for each party have elaborately briefed the question of the lawfulness of this discrimination. We shall not, however, undertake to decide that question. It is not necessary to decide it in order to determine this case. The question is not likely to arise again, for since this suit was commenced a new ordinance has been passed by the city of Detroit authorizing that discrimination.

We do not undertake to decide the unlawfulness of the discrimination in question, because, in our judgment, it affords no ground upon which complainant is entitled to relief. Complainant is not entitled to relief because the rate of 80 cents per 1,000 cubic feet is too high, for that was the rate which defendant was entitled to charge. His claim for relief must rest upon the ground that the rate charged those who used gas for power purposes is too low. He cannot complain of this unless he is in some way injured. The circumstance that a manager of a public utility is granting unlawful favors to one of several individuals and we do not decide that that was done in this case- does not give a right of action to every member of the community. That is a grievance to be redressed by the public. On principle it cannot be redressed by an individual unless he is specially aggrieved thereby. As was said in Hays v. Penn. Co. (C. C.) 12 Fed. 309: "It may be said that it is only when the discrimination inures to the undue advantage of one man in consequence of some injustice

1 Only an extract from the opinion is here reprinted.— ED.

inflicted on another that the law interferes for the protection of the latter." See, also, Hozier v. Caledonian Ry. Co., 17 Sess. Cases (2d series) 302. The users of gas engines who receive the reduced rates were in no just sense competitors of complainant. The reduced rates gave them no undue advantage over him. They did not injure him. They, therefore, afford no ground upon which he can claim relief.

The decree dismissing complainant's bill is affirmed.2

2 As to when an action results from discrimination compare Bailey v. Fayette G. & F. Co. (1899), 193 Pa. St. 175; Commonwealth v. Louisville & N. R. R. Co. (1902), 112 Ky. 75; Mitchell C. & C. Co. v. Pennsylvania R. R. (1910), 181 Fed. 403, 411; Lilly Co. v. Northern Pac. Ry. Co. (1911), 64 Wash. 584.

"But although this action was brought to enforce a cause of action given by this section [sec. 8 of the Interstate Commerce Act] to any person injured, it is a noticeable fact that in its pleading the plaintiff does not claim to have been damaged and there is neither allegation nor proof that it suffered any injury. It contends, however, that this was not necessary for the reason that, as matter of law. it was entitled to recover as damages the same rate per ton on all plaintiff's shipments as had been rebated any other person, on any of his tonnage, shipped at the same time over the same route.

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"To adopt such a rule and arbitrarily measure damages by rebates would create a legalized, but endless, chain of departures from the tariff; would extend the effect of the original crime, would destroy the equality and certainty of rates, and contrary to the statute, would make the carrier liable for damages beyond those inflicted and to those not injured. The limitation of liability to the persons damaged and to an amount equal to the injury suffered is not out of consideration for the carrier who has violated the statute. On the contrary, the act imposes heavy penalties, independent of the amount of rebate paid, and as each shipment constitutes a separate offense, the law in its measure of fine and punishment is a terror to evil doers. But for the public wrong and for the interference with the equal current of commerce these penalties and fines were made payable to the government. If by the same act a private injury was inflicted a private right of action was given. But the public wrong did not necessarily cause private damage, and when it did. the pecuniary loss varied with the character of the property. the circumstances of the shipment and the state of the market, so that instead of giving the shipper the right to recover a penalty fixed in amount or measure, the statute made the guilty carrier liable for the full amount of damages sustained, whatever they might be and whether greater or less than the rate of rebate paid." Pennsylvania R. R. Co. v. International Coal M. Co. (1913), 230 U. S. 184, 197, 198, 203. Compare Seaman v. Minneapolis &R. R. Ry. Co. (1914), 127 Minn. 180. See Notes, 14 Columbia L. Rev. 68; 6 Minnesota L. Rev. 519.

UNITED STATES v. BALTIMORE AND OHIO RAILROAD CO.

231 U. S. 274. 1913.1

MR. JUSTICE LURTON delivered the opinion of the court.

This appeal involves the legality of an order made by the Interstate Commerce Commission, holding that certain allowances made by the appellees to Arbuckle Brothers on sugar shipped by them over one or another of the railroad companies' lines constitute an illegal preference or discrimination in violation of the act to regulate commerce. The order of the Commission required the railroad companies to cease and desist from paying such allowances, "while at the same time paying no such allowances to the Federal Sugar Refining Company," on its sugar brought by it on lighters to the carriers at the same rail terminals. 20 Inters. Com. Rep. 200. The carriers affected filed a bill in the Commerce Court, alleging the invalidity and illegality of the order, and sought an injunction pendente lite and a permanent injunction against its enforcement. An injunction until the cause could be finally heard was granted by the Commerce Court. This was appealed from by the United States and the injunction sustained as within the sound discretion of the court below. 225 U. S. 306. Thereupon the cause was finally heard upon motion of the appellants to dismiss the bill for want of equity, all answers and pleas theretofore filed having been withdrawn. The Commerce Court denied this motion and sustained the equity of the bill. The appellants declining to further defend, the temporary injunction was made permanent. From that decree this appeal is prosecuted.

The situation out of which the questions for decision arise, shortly stated, is this:

The railroad companies held by the Interstate Commerce Commission to have discriminated in favor of Arbuckle Brothers and

2 See United States v. Chicago, I. & L. R. Co. (1908), 163 Fed. 114; State v. Union P. R. R. Co. (1910), 87 Neb. 29.

1 The arguments of counsel and part of the opinion are omitted. ED.

against the Federal Sugar Refining Company are interstate trunk lines whose freight rail terminals are at the New Jersey shore of the harbor of New York. Transportation of freights into and out of the city of New York is practicable only by means of car floats, barges, and steam lighters, operating between the city and the New Jersey shore.

To meet this condition the appellee railroads have long held themselves out as extending transportation of freights bound east to a defined area along the river front of the city, and as beginning such transportation westbound when freight is delivered at designated points within the same area. The necessary lighterage service is performed without additional cost or charge, the flat rate into or out from such points being identical with that applicable at the New Jersey rail terminals. The limits within which such lighterage service is performed as a part of the transportation assumed have long been defined and published in the several filed rate sheets of the carriers. The district embraces substantially the commercial and manufacturing river front of Greater New York, and within it the railroads hold themselves out as undertaking to receive or deliver freight at any public dock, or at any accessible private dock where the shipper shall arrange for the use of the dock. Within this lighterage zone each of the appellees has established and long maintained public freight terminal stations, at which it will deliver eastbound freights and receive freights bound west. Some of these stations are owned or managed solely by one of the railroads, and some are union stations operated for the joint use of two or all of the railroads. Some of them are operated by third persons, who manage and operate them under contracts as agents for one or more of the railroads. But whether operated under contract or directly by the company or companies using them, they are represented to be public delivery and receiving stations, and are so set out in the filed tariff sheets of the companies interested.

The "allowance" to Arbuckle Brothers referred to in the order of the Commission is the consideration paid by the railroad companies to them for instrumentalities and facilities furnished and services performed in the maintenance of one of these public stations, known as the Jay Street terminal, and for the lighterage of all freight between that station and the railroad terminals on the New Jersey shore. Arbuckle Brothers, a copartnership, are large refiners of sugar and dealers in coffee. Much of their product of sugar finds a market in the west at points upon the lines of the railroads here involved. Their refinery is upon the water front of Brooklyn. They also own a contiguous property fronting upon

East River some 1,200 feet. Upon this property they have erected a dock, piers, and large warehouses for the receipt of freight intended for transportation to the railroad terminals on the New Jersey shore, or received from such terminals for consignees nearby. They also own steam lighters, car floats, barges, etc., constructed for the transfer of cars, loaded or unloaded, between this dock and the New Jersey terminals. The premises were peculiarly adapted for use as a public union freight station, and for the purpose of extending transportation by their several lines to this portion of the commercial and manufacturing water front of Greater New York, the appellee railroad companies, in 1906, entered into separate, but identical, contracts with Arbuckle Brothers, the latter contracting under the business name and style of "The Terminal Company." The contracts are too lengthy to be set out. Their essential points may be thus summarized:

1. The Terminal Company agrees to maintain the premises in good order and condition for the receipt of freight, and to provide all necessary boats, car floats, docks, and piers, adequate at all times to receive, discharge, transfer, and deliver freights, loaded and unloaded, adequate to accommodate the business contemplated.

2. The Terminal Company will receive at the New Jersey terminals all freights, in or out of cars, intended for delivery at the aforesaid freight station, and safely convey the same to the premises, and there make delivery to the consignees. It will also receive and load into cars all freights which may be delivered to it at its said premises for transportation over the lines of any of said railroad companies, and carry and deliver the same to said railroad company's New Jersey rail terminals.

3. For the facilities supplied and the services performed each of the railroad companies agrees to pay on freight in and out of the station, a compensation measured by the tonnage handled for each such railroad at 45 cents per hundred pounds on freight originating at or destined to points west of what is called "trunk line territory," and on freight originating at or destined to points east thereof, 3 cents per hundred pounds.

Under these contracts, consignments to or by Arbuckle Brothers are handled in the same manner as the shipments of the general public, and comprise a part of the tonnage in and out of that station by which the compensation paid to the Terminal Company is measured. This fact was the basis of the complaint made by the Federal Sugar Refining Company, whose sugar seeks the same market, and who claimed that as it lightered its sugar from its own shipping dock to the terminals at the New Jersey shore, the so-called "allowance" made in respect to the sugar of Arbuckle