cents per ton for all coal shipped from Snow Shoe to the works at Bellefonte; that such contract was made and the plant was then erected and the manufacture of nails thereat was carried on from 1881 until, and after, the time covered by the plaintiffs' claim; that the plaintiffs were coal-dealers only, who merely bought and sold coal and returned no freight to the defendant as the product of any manufacturing operations; that they did not do any business as coal-dealers, in fact did not come into existence until the year 1889, eight years after the nail company was organized and commenced business and while the defendant company was subject to, and 228 bound by, the terms of their contract with the nail company; and that the plaintiffs were not discriminated against at all, because they were charged only the same freights as were charged to all others who were coal-dealers only. And it was contended as matter of law, by the defendant, that the discrimination in the rates for freight between the nail company and the plaintiffs was not, in view of all the circumstances of the case, an undue or unreasonable discrimination, within the meaning of the constitutional provision or of the Act of 1883. In reply to points put to the court on the trial on this subject, the learned judge who tried the cause charged the jury that the question of unjust discrimination was a question of fact to be determined by them, and he refused the defendant's point on that subject. But he did, nevertheless, also instruct the jury, as matter of law, that the distinction between a dealer and a manufacturer set up by the defendant was not a defense, and would not exempt the defendant from the penalties of the Act of 1883. He said: "The defense claim, as an exemption from the penalty of this act, the fact that the one may be classed as a manufacturer and the other simply as a dealer. I do not regard the law as making that classification. I think that the classification which the Act of 1883 intended was a classification relating to the carriage and not to the shipper himself. It may charge more for one kind of freight than for another. It may charge more for live freight than for wood, coal, iron or ore. It may charge more for a certain portion of its road than it does for others. These things are governed largely by the expense to which the common carrier is subjected. Common carriers may charge more when they ship but a small quantity than they do when they ship by wholesale. . . . . But I do not think the law or the policy of the law permits them to classify the

kind of dealer; that is, that they may make a discrimination between the character of the consignor or consignee ordinarily. . . . . The evidence here is that each shipment was by carloads during the same period of time and under like cir cumstances. The fact that one party was a manufacturer and the other party were coal-dealers we think is not material in this case."

The same idea was repeated, and a positive instruction was given, that upon the facts stated in the plaintiffs' point, "the service and conditions were alike and the circumstances the 229 same." We regard this as a binding instruction to the jury upon the law of the case, which left them no discretion but to find for the plaintiffs, the only question for them being the amount of damages to be found.

After a very patient examination of all the testimony and of all the authorities cited on both sides we find ourselves unable to agree with the learned court below, either as to their interpretation of the law or their judgment upon the facts.

So far as the law of the case is concerned, there is no doubt that the Act of 1883 does not prohibit all discrimination. It prohibits only discrimination which is undue or unreasonable, and the prohibited discrimination is further limited by the consideration that it must be "for a like service, from the same place, upon like conditions and under similar circumstances." If, therefore, the discrimination, in a given case, is upon conditions which are not alike, and circumstances which are not similar, the act is inapplicable, and its penalties are not incurred. Nor can we regard this question as a question of fact for the jury alone. The ascertainment of the actual facts of the case, of course, is for them, but where these are established by undisputed testimony, or are presented by proper points which cover the facts in evidence, the resulting question is whether the facts established or undisputed, or exhibited in properly drawn points, bring the case within the operation of the words or necessary meaning of the statute, and that, of course, is a question of law for the court. For the question then is one of interpretation. Do the words of the statute extend to, and embrace, the established facts of the case, or do they not? If they do not, the statute is not applicable; if they do, it is, and the court alone, as in all other similar cases, must determine that question. It is beyond the function of the jury.

Let us now recur to the well-established and the undis

puted facts of the case, and inquire whether there are any, and if so, what, differences in the conditions, and in the cir cumstances which attended the shipping of the coal to the plaintiffs and to the Bellefonte Iron and Nail Company respectively.

In the first place we find the undisputed testimony of Governor Curtin to the effect that in 1881, and prior to the erection of the nail works, he called upon the defendant's officials for the purpose of having them agree to carry the coal for the prospective 230 works at thirty cents per ton. This testimony is clear, distinct, positive, and entirely uncontradicted, and it was followed by proof that the contract was carried out by the defendant after some delay in the adjustment. Governor Curtin said: "I went to Philadelphia for the purpose of having the arrangement made. I there saw Mr. Creighton, who was the freight agent of the Pennsylvania Railroad Company, and after some time in negotiating he agreed that the freight should be reduced to thirty cents per ton where the amount consumed per day was twenty tons or He wrote me a letter in which it was settled and fixed at thirty cents per ton." He then explained the loss of the letter and his search for it, and said: "but of the contents of the letter I am perfectly clear in my recollection of it, and it was one of the inducements which contributed to the erection of the nail works in this place. There were other parties in this place engaged in other industries which would have had a right to the reduction, notably Valentine's Works in operation, and the glass works, when they used the quantity indicated."

more.

As the court below charged directly against any effect being attached to the subject matter of this testimony, the defendant is entitled to have it regarded as proof of an established fact, and this being so, we have the following differences in the conditions and circumstances attending the shipments to the plaintiffs and the nail works, respectively:

1. The defendant, when it began carrying coal for the plaintiffs, in September, 1889, was bound by the terms of a contract made with the nail works eight years before, and during all the intervening time the plaintiffs were not even in existence as a firm, and were doing no coal business whatever. We know of no reason why that contract was not binding on the defendant, especially as Governor Curtin testified, without contradiction, that all the other industries at Bellefonte were

entitled to the benefit of it if they took the requisite quantity of twenty tons daily. This being so, the defendant's hands were tied, and it could not charge the nail works fifty cents a ton if it had desired to do so. This constituted a most material difference in the conditions and circumstances of the shipments. In an action by the nail works to recover the twenty cents a ton higher charge, if it had been made to equalize it with the rate charged 231 to the plaintiffs, it would have been no defense to say that a company of coaldealers had lately come into existence who were getting coal over the same road from the same point, and therefore the defendant would be obliged to charge fifty cents per ton thereafter.

2. The nail works were bound to take twenty tons every day, while the plaintiffs were under no such obligation.

3. The plaintiffs were dealers in coal merely while the nail company was a manufacturer of fabrics, and itself consumed the coal it received. They were therefore not competitors in the same business, and a lower rate to the manufacturer would not, under the contract, affect the business of the plaintiffs injuriously. It is true there was proof that the nail company did sell some coal to their own workmen, but as it is not shown that the defendant had any knowledge of this fact they cannot be held responsible for it.

4. The business of the plaintiffs paid but one freight to the defendant while the business of the nail company paid not only that freight, to wit., for hauling the coal to the nail works, but also, in addition to that, another and entirely independent freight to the defendant on all the products manufactured by the nail company. This was a most important and vital difference in the conditions and circumstances of the two shipments. The authorities are very clear and strong that where an additional freight is obtained by means of the lower charge, the discrimination is justified both at common law and under the statutes.

The importance of this factor in the discussion is at once. manifested by certain testimony given by the plaintiffs through one of their witnesses, L. E. Munson, who was the superintendent of the Bellefonte Iron and Nail Company. On examination by counsel for the plaintiff he was asked: “Q. What did you say the capacity of the nail works was as to outgoing freight? A. About thirty tons a day, thirty to forty tons a day. Q. That would be three hundred kegs,

AM. ST. REP., VOL. XXXVL -4

would it? A. We have a capacity of five hundred kegs. Q What was your outgoing freight? A. I suppose part of the time we made a hundred thousand kegs a year, from seventyfive to one hundred and twenty-five thousand kegs a year. Q. Would that mean about one car a day on a three hundred kegs basis? A. Yes, sir; 333 then we shipped considerable muck bar. Q. Were you shipping muck bar at the time you were shipping nails? A. Sometimes; when we were making nails out of steel rods. Q. Were you making muck bar at the time you were making nails? A. Yes, sir. Q. Were you making bar iron and shipping it at the time you were making nails? A. Yes, sir."

As the foregoing testimony was given by the plaintiffs, and was not at all contradicted by the defendant, the plaintiffs are bound by it, and it must be taken as establishing the fact which it develops, and the fact thus established is of the greatest possible consequence in the case. It entirely destroys, in our opinion, the fundamental allegation of the plaintiffs that the shipments of coal to the plaintiffs, and the nail works, were made "upon like conditions and under similar circumstances." For the shipments of coal to the plaintiffs yielded but one freight to the defendant, while the shipments to the nail works yielded not only the same incoming freight on the coal, of at least twenty tons a day, but an additional outgoing freight of thirty to forty tons a day of fabrics manufactured by the nail works. In view of this testimony how can it possibly be said that the conditions of the two shipments are alike and their circumstances similar? That a railroad company may lawfully secure to itself so important an addition to its business by making a lower charge to one customer than to others is fully established by the authorities, as we shall presently see.

5. The manufacture and sale by the nail works of nails and muck bar were outside of, and entirely harmless to, the business of the plaintiffs, and hence a lower price for the coal consumed by the nail works was neither an undue nor an unreasonable discrimination against the plaintiffs, because it was an immaterial circumstance as affecting their business. This is self-evident. The plaintiffs did not deal in nails or muck bar, and the sale of those commodities by the nail company, necessarily, could have no effect upon the plaintiffs' business, which was the selling of coal to persons who consumed it.