Scofield v. Railway Co. (43 Ohio St. 571, 1885)

Atherton, J.

The main question in this case, and to which all others are subordinate, is this:

Has the defendant a right to discriminate between its freighters and customers, and furnish transportation to one at a less rate than to others, in a case where such discrimination is injurious to and destructive of the legitimate business of others?

That ultimate question requires the consideration of several other propositions and queries, some of which may be stated as follows:

1. What where the rights and duties of common carriers at common law, and was the shipper entitled to have his goods shipped at a rate equal to that charged to others, or was-he entitled to any protection other than to have his goods transported for a reasonable compensation?

2. What changes, if any, have been made by statute in this state touching the duties and liabilities of a common carrier at common law ?

3. Is the contract made between the defendant and the Standard Oil Company, and mentioned in the pleadings, good in law, or is it void on grounds of public policy?

4. Can the remedy sought by plaintiffs in this case be administered by a court of equity by means of-an injunction ?

The district court has found that the defendant is a consolidated railroad company owning and operating a railroad extending from Buffalo, New York, to Chicago, Illinois, passing through Ohio and parts of Pennsylvania, Indiana, Michigan and Illinois, with branches extending to Detroit and Grand Rapids, and that defendant is a public corporation and a common carrier in the business of transporting persons and property for hire and reward over its line and branches.

The defendant having acquired through its charter the light of eminent domain and the franchise to construct its road, and to demand and receive tolls, is to be distinguished from a mining or manufacturing or other private corporation. By accepting its charter, and claiming and exercising the peculiar rights and privileges enjoyed by public corporations, and “ being a creature of the law and intrusted with the exercise of sovereign power to subserve public necessities and uses, the defendant is bound to conduct its affairs in furtherance of the public objects of its creation.”

The legal theory seems to be that it is the duty or the right of governments to provide improved facilities for the public travel and transportation at the public expense, and this duty has been discharged by all civilized governments. It was found that these improved modes of travel and transportation could not always be provided by private enterprise, and that to construct canals, turnpikes, railroads, etc., required the exercise of the right of eminent domain, and the powers of general taxation. In the further progress of events as private wealth increased, it was found politic and convenient to entrust these functions of the government to individuals united together as public corporations under a grant of the government. The railroad corporation in consideration of the franchise received, giving the public the right to use its road, and subjecting itself to the restraint of the government through its legislature and judiciary, to prevent any abuse of the powers so granted.

“While the law affords railroad corporations adequate and complete protection in the exercise of their chartered rights, it also holds them to a strict performance of the public duties enjoined upon them as a consideration for the rights and powers thus granted. In cases of apparent conflict between the rights and powers conferred and the duties imposed, the solution may oftentimes be rendered easy by regarding the admitted right of public use as the touchstone of judicial interpretation.” Railroad Commissioner v. P. & O. C. R. Co., 63 Me. 269-278.

It is because of the fact that such corporations are public corporations-, being vested with a portion of sovereign power delegated to them by the state, and owing duties to the public, that they have been held subject to the right of mandamus to oblige them to fairly and fully carry out the public object of their creation. Rex v. Barker, 3 Burr. 1267; State v. Railroad Company, 29 Conn. 538; Ang. & Ames on Corp. 694.

It is on the same theory that acts of the legislature have been sustained as constitutional, requiring railroad corporations to establish stations at particular places on their roads, and to supply reasonable accommodations to the people of the smaller localities, and to do justice to the different sections through which their railroads pass. Commonwealth v. Pastern R. Co., 103 Mass. 258.

The fact that parties using the road are required to pay fare for transportation in no way conflicts with the views expressed.

“ The fare is the consideration for the service performed, whether done by the state directly, or by a corporation under a grant from the state; it is simply a substitute for the tax rendered necessary when the state builds and conducts railroads at the public expense ; the corporation upon the payment of the fare, is under the same obligation to render the required service for the public, that the state would be, if railroads were free, and conducted by state authority. Nor does the ownership of railroads, whether it be in the state or a private corporation, affect the nature of their use, since in either case the function to be exercised, and the uses to be subserved are public.” Railroad, Commissioner v. P. & O. C. R. Co., supra, 275.

“ In considering the right of the public to the use of rail-. roads, and the public interest resulting from this right, it should not be overlooked that the payment of fares is more than compensated, in general, by the reduced expense of travel and transportation by this mode over other means of conveyance, in addition to the other advantages, public, private and local, resulting from the establishment of railroads. • ■ • This beneficial public interest is intended, among others, to he secured under the franchise granted to railroad corporations; and the public have an interest that this result should be attained and maintained by them.” Ib., 276-7.

A similar doctrine is stated by the supreme court of Pennsylvania :

“ Wherever a charter is granted for the purpose of constructing a railroad, and the corporation is clothed with the power to take private property in order to carry out the object, it is an inference of law from the extent of the power conferred, and subject-matter of the grant, that the road is for the public accommodation. The right to take tolls is the compensation to be received for the benefits conferred. If the public are entitled to these advantages, it results from the nature of the right that the benefits should be extended to all alike, and that no special privileges should be granted to one man or set of men, and denied to others.” Sanford v. Railroad Co., 24 Pa. St. 878.

The learned Chief Justice Beasley, in pronouncing the judgment of the supreme court of New Jersey, said : “ In my opinion, a railroad company, constituted under statutory authority, is not only by force of its inherent nature a common carrier • • • but it becomes an agent of the public in consequence of the powers conferred upon it. A company of this kind is invested with important prerogative franchises, among which are the rights to build and use a railway and to charge and take tolls and fares. These prerogatives are grants from the government, and public utility is the 'consideration for them. Although in the hands of a private corporation, they are still sovereign franchises, and must be used and treated as such; they must be held in trust for the general good. If they had remained under the control of the state, it could not be pretended that in the exercise of them, it would have been legitimate to favor one citizen at the expense of another. If a state should build and operate a railroad, the exclusion of every thing like favoritism with respect to its use would seem to be an obligation that could not be disregarded without violating natural equity and fundamental principles. • • • In their very nature and constitution, as j view this question, these companies become, in certain aspects, public agents, and the consequence is, they must, in the exercise of their calling, observe to all men a perfect impartiality.” Messenger v. Pennsylvania R. Co., 36 N. J. Laws, 407.

“A railroad corporation, in view of its origin, objects, uses, and the control of the government over it, is a public corporation, though its shares may be owned by private individuals. It is a governmental agency for public purposes.” Talcott v. Townshif of Pine Grove, 1 Flippin, 120. See also McDuffee v. P & R. R. Co., 52 N. H. 430.

The defendant’s attorneys in their brief, well say ’. “ It can not be questioned that the reason why a common carrier is restricted to a reasonable rate is the same that causes the limitation at common law upon the rates charged by a wharfinger licensed under the statute. In reference to a railroad company, it may be truly said that it exercises a quasi public employment. While railroads are managed for private benefit, and their profits arising from their operation go to individuals, yet they are treated as merely a public convenience and agency in the matter of state and interstate commercial intercourse.” And see Erie & N. E. Railroad v. Casey, 26 Pa. St. 287.

The above authorities abundantly show that railroad companies are common carriers, receiving from the state a delegation of a portion of its sovereign powers for the public good. That being public agents and, in the place and stead of the government, exercising public duties, they are therefore subject to the legislative and judicial authority to correct the abuse of their privileges and powers.

The next question is, whether these quasi public agents are required to treat all citizens and customers alike as to terms upon which they will transport freight.

It is claimed by the defendant that it is not bound to carry freights for all freighters at the same rate, but its duty is fully discharged if it carries for all, charging none more than a reasonable rate. On the contrary the plaintiffs contend that, at least under the facts of this case, they are entitled to the same rates as their more favored rival. They allege, and the court find, that they have been and are carrying on in a large way, at Cleveland, Ohio, the business of refining crude petroleum, and selling it in the region reached by the defendant’s railroad, branches, and connecting lines. That they have a large capital' so employed, and have established a large and profitable trade throughout such territory. That their refinery cost about $70,000, and that plaintiffs have a refining capacity of about 150,000 barrels per year. And it is contended, and the facts would seem to establish, that the admitted difference of 10 cents a barrel between the rate charged plaintiffs and that charged the Standard Oil Company, would make to the plaintiffs, if there was no discrimination practiced, a yearly sum of $15,000 on the out-put of plaintiff, or more than twenty-one per cent on the capital used in their business. That the Standard Oil Company is and has been engaged in the same .business at Cleveland and elsewhere, and has manufactured and shipped nine-tenths of all the oils manufactured at and shipped from Cleveland, and that by the terms of an agreement entered into in 1875, the defendant contracted with the Standard Oil Company that in consideration of the promise of the company to ship all their product of petroleum over the defendant’s railroad, it undertook to ship the same at an average rate of about ten cents per barrel below its published rates ; and that plaintiffs were compelled to pay at the same time according to the published rates. Plaintiffs claim that by this discrimination, in favor of the Standard Oil Company, the latter are afforded an unfair discrimination and adyantage, and can put their product on the market at a less price than the plaintiffs can afford, and thereby their profits are reduced; and by this unlawful discrimination in favor of the Standard Oil Company, the defendant is inflicting upon them great and irreparable damage, and renders it impossible to successfully compete with that company in the market, and thereby the business and trade of plaintiffs is being injured and destroyed., It will be observed that the gist of plaintiffs contention is not so much that the latter are charged a rate of compensation for transportation unreasonable in itself, as that by charging a lower rate to their more favored competitor, the latter is enabled to and is supplying the market at a price with which the plaintiffs can not compete, and thus driving them out of the market and destroying the business and trade they have built up. One of the questions at issue between the parties is: What was the doctrine of the common law on the question of the compensation of a common carrier? Could the freighter require any thing more than that he be charged no more than a reasonable compensation, or could he demand and have his goods transported at an equal rate with the favored customer l

In many cases it has been held that the customer was only entitled to have his goods shipped at a reasonable rate, and not necessarily at an equal rate with others; and that he was not interested in the matter that somebody else was charged less. Or in the incisive language of Crompton, J., to counsel in an English case : “ The charging another person too little is not charging you too much.”/

The question, so far as it related to railroads, was settled by statute in England shortly after their introduction there; and under the “ equality clause ” of the English statutes railroad companies were bound to charge equally to all persons in respect to all goods under like circumstances. Pickford v. Grand Junction R. Co., 10 M. & W. 399 ; Baxendale v. London & Southwestern Railway Company, L. R., 1 Ex. 137; L. & N. W. R. Co. v. Evershed, 26 W. R. 863.

And by 17 and 18 Viet., c. 31, §§ 2, 3, and 6, the court of common pleas was empowered to restrain by injunction any railway or canal company from giving undue or unreasonable preference to any particular person or description of traffic. See notes to Coggs v. Bernard, 1 Smith. L. C. 369. So for a long period of time the English courts have had no occasion to examine the condition of the common law upon the subject independent of the i ' tute.

In C. & A. R. Co. v. The People ex rel., etc., 67 Ill. 11, 17, Lawrence, C. J,, affirms: “ Another perfectly well-settled rule of the common law in regard to common carriers is, that they shall not exercise any unjust and injurious discrimination between individuals in their rates of toll. . . . While the law now imposes, and always has' imposed, upon individuals exercising the vocation of a common- carrier, the obligation of rendering service to all persons without injustice to any, how utterly unreasonable it is to claim that a corporation is to be permitted to discriminate in its tolls at its own discretion and without regard to justice,” etc.

In discussing the English “equality statute” before adverted to, Beasly, C.J., pronouncing the opinion of the supreme court of New Jersey, says : '

“But the courts of Pennsylvania have repeatedly declared that this act was but declaratory of the doctrine of the common law. . . . In a more recent decision, Mr. Justice Strong says that the special provisions which are sometimes inserted in railroad charters in restraint of undue preferences, are * but declaratory of what the common law now is/ This is the view which, for reasous already given, I deem, correct.” Messenger v. Pennsylvania R Co., 36 N. J. Law, 407-412.

In some of the cases it is announced that upon the question of whether the law requires the common carrier to transport goods upon equal terms to all, or whether it only requires that the rate shall be reasonable, but not necessarily equal to all, has been differently determined by the courts of England and America. Ragan v. Aiken 9 B. J. Lea, 609; s. c., 42 Am. Rep. 684.

But be that as it may, the tendency and undoubted weight of authority is in favor of the doctrine that a common carrier is charged with a quasi public duty to transport merchandise on equal terms for all parties, where the carrying for some shippers at a lower price than for others will create monopoly by injuring or destroying the business of those less favored.

“An agreement by a railroad company to carry goods for certain persons at a cheaper rate than they will carry under the same conditions for others, is void as creating an illegal preference.” Messenger v. Pennsylvania R. Co., supra. The Chief Justice, p. 410, says :

“ It can not be denied that at the common law every person Under identical conditions had an equal right to the services 'of their commercial agents. It was one of the primary obligations of the common carrier to receive and" carry all goods offered for transportation, upon receiving a reasonable hj're. If he refused the offer of such goods, he was liable to an action, unless he could show a reasonable ground for his refusal. Thus, in the very foundation and substance of the business there was inherent a rule which excluded a preference of one consignor of goods over another. The duty to receive and carry was due to every member of the community, and in an equal measure to each. . . . Recognizing this a3 the settled doctrine, I am not able to see how it can be admissible for a common carrier to demand a difieren t hire from various persons, for an identical kind of service under identical conditions. Such partiality is legitimate in private business, but how can it square with the obligations of a public employment? A person having a public duty to discharge, is undoubtedly bound to exercise such office for the equal benefit of all; and, therefore, to permit the common carrier to charge various prices, according to the person with whom he deals, for the same services, is to forget that he owes a duty to the community. . . . The law that forbids him to make any discrimination in favor of the goods of A over the goods of B, when the goods of both are tendered for carriage, must, it seems to me, necessarily forbid any discrimination with respect to the rate of pay for the carriage. . . . The rule that the carrier shall receive all the goods tendered, loses half its value as a politic regulation, if the cost of transportation can be graduated by special agreement so as to favor one party at the expense of the other.

The same questions came up on error after issue had been joined and a trial had below, and are reported in 37 N. J. Law, 58L And Judge Beadle, speaking for the court, says, on p. 534:

“The business of the common carrier is for the public, and it is his duty to serve the public indifferently. ... In the very nature, then, of his duty and of the public right, his conduct should be equcd and just to all. So, also, there is involved in the reasonableness of his compensation the same principle. A want of uuiformity in price for the same kind of service under like circumstances is most unreasonable and unjust, when the right to demand it is common. . . . A direct refusal to carry for a reasonable rate would involve the carrier in damages; and a refusal in effect could be accomplished by unfair and unequal charges. . . . A common carrier owes an equal duty to all, and can not be discharged if he is allowed- to make unequal preferences, and thereby prevent or impair the enjoyment of the common right.”

The supreme court of New Hampshire, in McDuffee v. Railroad, 52 N. H. 447, in an action for damages for refusing to carry freight for the plaintiff at the same rate and with like facilities granted to others, say:

“A common carrier is a public carrier. He engages in a public employment, takes upon himself a public duty, and exercises a sort of public office. . . . His duty being public, the correlative right is public. The public right is a common right, and a common right signifies a reasonably equal right.”

Again, on page 450, the court say: “Equality in the sense of freedom from unreasonable discrimination being of the very substance of the common right, an individual is deprived of his lawful enjoyment of the common right when he is subjected to unreasonable and injurious discrimination in respect to terms, facilities, or accommodations.”

On page 451, the court further say : “ The common and equal right is to reasonable transportation service for a reasonable compensation. Neither the service nor the' price is necessarily unreasonable because it is unequal in a narrow, strict, and literal sense. . . . The question is not whether the service or price is absolutely unequal in the narrowest sense, but also whether the inequality is unreasonable and injurious.”

On page 453, the court, in discussing the case of Garton v. B. & E. R. Co., 1 B. & S. 112, et seq., where it was not found that any unreasonable inequality had been made by the defendant to the detriment of the plaintiffs, say : “ it was held that a reasonable price paid by them was not made unreasonable by a less price paid lay others,” but the court continues:

“But before that conclusion is reached, it may be necessary to determine whether the receipt of a less price from another person was á matter of charity or an unreasonable discrimination and a. violation of the common right. Charging A less than B for the same service, or service of the-same value, is not of itself necessarily charging A too little or charging B too much; but it may be evidence tending to show that B is charged too much, either by being charged more than the actual value of the service, or being made the victim of an unjustifiable discrimination. . . . If an apparent discrimination is found to have been real one, the question is whether it was reasonable, and if unreasonable, whether the party complaining was injured by it.

Among the earliest is the case of Sandford v. Railroad Co., 24 Pa. St. 378.

This action was by bill in chancery to enjoin defendant from excluding from its railroad plaintiffs, who were owners of a line of express. The reason for exclusion given was that defendant had contracted with another express company to give it exclusive transportation. The court say, p. 380 :

“ A railroad is a public highway for public benefit. The nature of this peculiar and improved class of highways make it indispensable to the public safety that the transportation on it should be placed under the strict regulation of one controlling head. . . . When this power is assumed, the company becomes a common carrier, and thus exercises a sort of public office, and has public duties to perform. It is bound to receive and carry all the goods offered for transportation. ... If the public are entitled to these advantages, it results from the nature of the right that the benefits should be extended to all alike, and that no special privileges should be granted to one man or set of men and denied to others.”

On page 382 the court further say: “The power to regulate the transportation on the road does not carry with it the right to exclude any particular individuals or to grant exclusive privileges to others. Competition is the best protection to the public, and it is against the policy of the law to destroy it by creating a monopoly of any branch of business. It can not be done except by the clearly expressed will of the legislative power. . . . If it possessed this power it might build up one set of men and destroy others; advance one kind of business and break downanother; and might make even religion and politics the tests in the distribution of its favors. . . . The rights of the people are not subject to any such corporate control. A regulation, to be valid, must operate on all alike. If it deprives any persons of the benefits of the road or grants, exclusive privileges to others, it is against law and void.”

“A railroad company is chartered, and is chartered solely, for the purpose of exercising the functions and performing the duties of a common carrier. The duties and liabilities of common carriers are clearly defined by the common law, and have been defined for centuries. ... In accepting their charters, which gave them an artificial existence as common carriers, they necessarily accepted them with all the duties and liabilities attached, by the existing law, to the functions of a common carriér. . . While the law now imposes, and always has imposed, upon individuals exercising the vocation of a common carrier, the obligation of rendering seiwice to all persons without injustice to any, how utterly unreasonable it is to claim that a corporation is to be permitted to discriminate in its tolls at its own discretion and without regard to justice,” etc. C. & A. R. Co. v. The People ex rel., supra, 16.

In the case of Shipper v. Railroad Co., 47 Pa. St. 388, the actipn was brought to recover an overcharge of freight. The court, speaking of defendant’s charter, say, on p. 340:

“ There is no expressed stipulation that the rates shall be equal to all who may offer goods for transportation over the road. . . . Such stipulations are common in English railway charters. They are, however, but declaratory of what the common law is.”

In Audenried v. P. & R. R. Co., 68 Pa. St. 370, a bill was brought to enjoin defendant from refusing to plaintiff privileges granted to others. The court say, on p. 380:

“ Transportation by a common carrier is necessarily open to the public upon equal and reasonable terms.”

In New England Express Co. v. M. C. R. Co., 57 Me. 188, an action in case for damages was brought under circumstances like those that gave the ground for injunction in Sandford v. Railroad Co., supra. Defendant had refused to carry goods for plaintiff because some years before it had made a contract with another express company to give it the exclusive right to carry express matter on its cars. The court say:

“ Common carriers arebound to carry indifferently, within the range of their business, for a reasonable compensation, all freight offered. For similar equal services they are entitled to the same compensation. . . . They can not legally give undue and unjust preferences, or make unequal and extravagant charges. ... A toll is granted. But a toll implies uniformity of compensation for equality of service. . . . The very definition of a common carrier excludes the idea of the right to grant monopolies, or to give special and uneqal preferences. It implies indifference as to whom they may serve, and an equal readiness to serve all who may apply, and in the order of their application. The defendants derive their chartered right from the state. They owe an equal duty to each citizen. They are allowed to impose a toll, but it is not to be so imposed as specially to benefit one and injure another. . . . Such is the common law on the subject. The legislation of the state has been in accordance with, and in conformity of, these views.”

In Illinois the disposition in the railroads to discriminate seems to have taken the type of charging more for delivery to one warehouse than to another in the same city.

And in Vincent v. Railroad Co., 49 Ill., 33, it was decided that a railroad will not be permitted to charge one rate of delivery to one warehouse and a different rate to another.

In Chicago and N. W. Railway Company v. People, 56 Ill. 365, the application below was for mandamus to compel delivery of grain to the elevator to which it was consigned.

On p. 378 the court say: “Regarded merely as a common carrier ¡it common law, and independently of any obligations imposed by the acceptance of its charter, it would owe important duties to the public, from which it could not release itself except with the consent of every person who might call, upon it to perform them. Among these duties, as well defined and settled as any thing in the law, -was the obligation to receive and carry goods for all persons alike, without injurious discrimination as to terms.”

In Dinsmore, Prest. v. Railroad Company, 2 Fed Rep. 465, two similar cases were disposed of by Judge Baxter, one in the circuit court of the United States for Kentucky, and the other for Tennessee.

On pp. 469,476, Judge Baxter, having treated of the duty to supply all the accommodations and facilities demanded .by the business of the country, says :

“And next in importance to this leading idea, is the obligation to do exact and even-handed justice to everybody offering to do business with them. . . . The defendant, to the extent of its corporate authority, the Union Express Company, and all other persons or companies .wishing to engage in the carrying of express matter over defendant’s road, can enter upon that business on equal terms with the complainant. Neither the railroad companies nor the courts can discriminate in favor of one or more parties, or against others. All are entitled to the same measure of accommodation who may offer to do the like business, and it is the duty of the court to enforce, whenever applied to, this legal rule of impartial justice.”

Five cases, reported in 10 Fed. Rep. 210, were decided, before Justice Miller and Judges McCrary and Treat, arising in the various circuit courts of the United States for Mississippi, Arkansas, Kansas, and Colorado; and Justice Miller, on p. 214, states as the fifth point in his opinion :

“I am of the opinion that it is the duty of every railroad company to provide such conveyances, by special cars or otherwise, . . . asare required for the safe and proper transportation of this express matter on their roads, and that the use of these facilities should be extended on equal terms to all who are actually and usually engaged in the express business.”

The case of Hays v. Pennsylvania Company, 12 Fed. Rep. 809, decided by Baxter, J., in tbe circuit court of the United States, for the northern district of Ohio, is important in respect to one element in this case. The defendant in the case at bar claims that it was proper to enter into the contract it did with the Standard Oil Company, on account of the very large amount of freightage that company annually furnishes, and that it was lawful to discriminate in their favor on that account. The plaintiffs in that case had been engaged for several years in mining and shipping coal from Salineville, and the defendant’s railroad furnished them their only means of'getting their coal to market. The railroad company discriminated in favor of every shipper who shipped five thousand tons or over, and the discrimination was from thirty to seventy cents per ton, graduated by the amount shipped.

Plaintiffs were required to and did under the discrimination paya higher rate than their more favored competitors. They brought suit to recover for the discrimination, and, under the instructions of the trial judge, the jury returned a verdict for plaintiffs.

The judge on a motion for a new trial said:

“ The defendant is a common carrier by rail. Its road, though owned by the corporation, was nevertheless constructed for public uses, and is, in a qualified sense, a public highway. Hence everybody constituting a part of the public, for whose benefit it was authorized, is entitled to an equal and impartial participation in the use of the facilities it is capable of affording. . . .

“ The discrimination complained of rested exclusively on the amount of freight supplied by the respective shippers during the year. Ought a discrimination resting exclusively on such a basis to be sustained? If so, then the business of the country is in some degree subject to the will of railroad officials; for if one man engaged in mining coal, and dependent on-the same railroad for transportation to the same market, can obtain transportation thereof at from twenty-five to fifty cents per ton less than another competing with him in business, solely on the ground that he is able to furnish, and does furnish, the larger quantity for shipment, the small operator will, sooner or later, be forced to abandon the unequal contest, and surrender to his more opulent rival. If the principle is sound in its application to rival parties engaged in mining coal, it is equally applicable to merchants, manufacturers, millers, dealers in lumber and grain, and to every body else interested in any business requiring any considerable amount of transportation by rail; and it follows that the success of all such enterprises would depend as much on the favor of railroad officials as upon the energies and capacities of the parties prosecuting the same. It is not difficult with such a ruling to forecast the consequences. The men who control railroads would be quick to appreciate the power with which such a holding would invest them, and, it may be, not slow to make the most of their opportunities; and, perhaps, tempted to favor their friends to the detriment of their personal or political opponents ; or demand a division of the profits realized from such collateral pursuits as could be favored or depressed by discriminations for or against them; or else, seeing the augmented power of capital, organize into overshadowing combinations, and extinguish all petty competition, monopolize business, and dictate the price of coal and every other commodity to consumers. We say these results might follow the exercise of such a right as is claimed for railroads in this case. But we think no such power exists in them; they have been authorized for the common benefit of every one, and can not be lawfully manipulated for the advantage of any class at the expense of any other. Capital needs no such extraneous aid. It possesses inherent advantages which can not be taken from it. But it has no just claim, by reason of its accumulated strength, to demand the use of the public highways of the county, constructed for the common benefit of all, on more favorable terms than are accorded to the humblest of the land; and a discrimination in favor of parties furnishing the largest quantity of freight, and solely on that ground, is a discrimination in favor of capital, and is contrary to a sound public policy, violative of that equality of right guaranteed to every citizen, and a wrong to the disfavored party, for which thp, courts are competent to give redress.”

The district court, in their finding 10½, state that shipment by the car-load was the manner in which nearly all the business was done. That on the request of either party to furnish cars, the defendant had them switched to the refineries, and after being loaded were switched back and placed on defendant’s tracks for shipment on its road.

The manner of making shipments for plaintiffs and for the Standard Oil Company was precisely the same, and the only thing to distinguish the business of the one from the other was the aggregate yearly amounts of freight shipped. We adopt the reasoning of Baxter, J,, as the better law, andT hold that a discrimination in the rate of freights resting exclusively on such a basis ought not to- be sustained. The principle is opposed to a sound public policy. It woul