on the facts which give a cause of action for unjust and unreasonable discrimination under section 2, where one shipper is charged more than another for a like service. Kinnavey v. Terminal Railroad Assoc., 81 Fed. Rep. 802 (June, 1897, Cir. Ct. East. Dist., Mo. E. D.); Van Patten v. Chicago Railroad, 81 Fed. Rep. 545 (June, 1897, Cir. Ct. No. Dist. Iowa).

In an action under section 1 for damages for an unlawful charge the published rate is prima facie evidence as a standard of comparison whether or not the charge complained of is unreasonable. The complaint in such an action must allege either that no schedule of rates was published by defendant, or that the rate charged plaintiff was in excess of such published rate. The published rate is the only legal rate the carrier can charge, and any violation of them subjects the carrier to the penalties of the act. A compliance with the published rate is defense to such an action. Ib.

See also as to published rates Railway Co. v. Hefley, 158 U. S. 158.

"Common Control.". Where carriers agree upon a schedule of joint rates, which are published pursuant to the provisions of the Interstate Commerce Act, in which each of the defendants participates, and they agree among themselves as to their pro rata share of such rates, the transaction constitutes "a common control, management, or arrangement for a continuous carriage or shipment" within the meaning of the act, and each participant became thereby subject to the provisions of the act. Interstate Com. Co. v. Louisville Railroad, 118 Fed. Rep. 613 (July, 1902, Cir. Ct. So. Dist. Ga.).

Successors in Interest Bound by Order. An order made by the Interstate Commission directing a corporation carrier to cease from giving drawbacks, rebates, or unjust charges discriminating against a shipper, cannot be defeated by the dissolution. or re-organization of the corporation. The corporations succeeding to the interests of the original corporation and taking over its assets, property, and franchises will be bound by the order made against the predecessor in like manner as if the order had been made against its successors. Interstate Com. Co. v. West

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ern Railroad, 82 Fed. Rep. 192 (July, 1897, Cir. Ct. West. Dist. Pa.).

Receiver Bound by Order against Corporation.- An order made by the Interstate Commerce Commission with regard to rates is binding upon the successors of the corporation and upon the receiver of such a corporation appointed by the court. If the order of the Commission was void for want of power, (an order fixing rates which the Commission cannot make) a receiver of the corporation thereafter appointed is not bound to obey it. Nor can the court grant relief under such an order upon the theory that the petition seeking relief against a receiver is practically an application to the court to regulate the conduct of the receiver as an officer of the court. Such an order cannot be enforced on the ground that it concerns only the petitioners and the receiver who practically represents the court. Ib.

Receivers and Trustees Liable.- Congress by the Elkins Act, approved February 19, 1903, has expressly extended the liabilities and penalties of corporations for violations of the Interstate Commerce Act to directors and officers of the corporation, and also to any receiver, trustee, lessee, agent, or person acting for or employed by such corporation. Such persons are declared to be criminally liable under the statute for acts done by them in violation of its provisions, and such acts are declared to be the acts of the corporation.

Reasonableness of Rates a Judicial Question.- Whether rates of transportation fixed by the carrier are reasonable or not is a judicial question, to be determined upon evidence as to all surrounding facts and circumstances in each case. A statute of Minnesota (approved March 10, 1887, chap. 10) which the Supreme Court of Minnesota held made the rates fixed and published by the Railroad Commission of the State final and conclusive, and not open to judicial inquiry, is in conflict with the constitutional provision which forbids the taking of property without " due process of law." Chicago Railroad v. Minnesota, 134 U. S. 418.

The court below granted a writ of mandamus to compel the carrier to enforce the rates within the State fixed by the Commission.

In response to the petition for the writ the carrier claimed that the rates fixed by the Commission were unreasonable, and the State court held that the statute fixed the rates, and evidence by the carrier as to whether they were or were not reasonable was immaterial. Held error. That the construction of the State court given to the Minnesota statute that the rates fixed under it were final and conclusive operated to deprive the carrier of his property without due process of law, and denied to it the equal protection of the law. Ib.

Reasonable Rates The Element of Risk and Value. In passing upon the question as to whether rates are reasonable the Interstate Commerce Commission must take into consideration the value of the service and the element of remuneration to the carrier for the additional risk he takes on expensive merchandise as distinguished from cheap goods. If it appears that the Commission took no evidence or did not consider these elements in making its order the court will refuse to enforce it. Interstate Com. Co. v. Delaware Railroad, 64 Fed. Rep. 723 (December, 1894, Cir. Ct. No. Dist. N. Y.).

Duty of Carrier-Boycott-Strike Will not Excuse Carrier. -- A common carrier in the performance of his duties as such is not excused for failure to discharge them by reason of the fact that a strike has been instituted by employees of a carrier who threaten to boycott any carrier handling cars or facilities of the company on whose road the strike is in progress. Chicago Railroad v. Burlington Railroad, 34 Fed. Rep. 481 (March, 1888, Cir. Ct. So. Dist. Iowa).

The duty imposed upon a carrier of interstate commerce will be enforced by a mandatory injunction where the injury resulting from its non-performance is continuing. The plea that if defendant should receive cars from the "boycotted" road its own men would be called out and a strike inaugurated will not excuse compliance with the order of the court. Ib.

See also Beers v. Wabash, 34 Fed. Rep. 244 (March, 1888, Cir. Ct. No. Dist. Ill.).

2. Unjust Discrimination Defined. That if any common carrier subject to the provisions of this act shall,

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directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.

Object and Scope of Section 2.- The apparent object of section 2, known as the Anti-rebate Law, was to protect the shipper from being discriminated against by the carrier by forbidding inequality in charges. The primary object of the act is to place all shippers upon an equality. Experience has shown that a carrier, in order to secure business from a rival and divert traffic from a competitor, has influenced large shippers to patronize it, and by way of inducement to offer the shipper substantial advantages by a secret arrangement whereby it carries the goods. at less than the published schedule rate. This is frequently accomplished by giving secret rebates and drawbacks which enable the shipper to undersell rivals and competitors and to increase his business to an extent which may, in some instances, ruin competitors.

There have been instances in which the carrier was secretly interested in the business of the shipper. Often carriers of coal are also engaged in mining coal. Officers of the carrying corporation are also officers of the mining corporation. The carrier is also the miner, the mining corporation shipping coal over the road operated by some of its own members as officers of the carrying corporation. The temptation of such shippers to favor themselves at the expense of their rivals is obvious. The carrying company secretly gives rebates and drawbacks

to the mining company shipping coal to the market in which its officers are interested. These advantages in freight rates give the favored shipper an unjust and unfair advantage which enables him to destroy competition and secure a complete monopoly.

These particular evils are sought to be remedied by section 2. The secret rebates, drawbacks, or other devices whereby one shipper is charged less for the same service than another are designated unjust discrimination, which is prohibited and declared to be unlawful. The appropriate remedy under section 2 is an action at law by the shipper to recover the money unjustly exacted and paid by him to the carrier in excess of what was charged or paid by other shippers or competitors for like services under substantially similar circumstances and conditions. The liability for moneys received by the carrier in violation of section 2 is declared by section 8, and the remedy by section 9. It may be recovered by the shipper in an action at law as damages. The shipper may, under section 9, elect to proceed before the Interstate Commerce Commission, but in that case the remedy would not be for money damages, but would be a preventive remedy by a restraining order to be enforced by injunction at at the suit of the Commission in a Circuit Court of the United States. Section 10 also creates a criminal liability for a violation of the provisions of the act. But the shipper must elect either to sue at law for damages or proceed before the Commission to secure an injunction. He cannot avail himself of both remedies.

The "discrimination" referred to in section 2 should not be confounded with the discrimination defined in section 4, which relates only to charges whereby the shipper is obliged to pay a greater sum for a short than for a long haul under substantially similar circumstances and conditions.

Similar Provisions Under English Tariff Act. The English Tariff Act, which formed the basis of the Interstate Commerce Act, contains similar provisions to those contained in section 2. The English courts in construing the British statute have uniformly condemned unjust discrimination of the sort referred