Little Rock & Ft. Smith Railway Co. v. Oppenheimer

• Court: Arkansas Supreme Court
• Writing for the Court: BATTLE, J.
• Citation: Little Rock & Ft. Smith Railway Co. v. Oppenheimer, 43 S.W. 150, 64 Ark. 271 (Ark. 1897)
• Decision Date: 02 October 1897
• Parties: LITTLE ROCK & FT. SMITH RAILWAY CO. v. OPPENHEIMER

43 S.W. 150

64 Ark. 271

LITTLE ROCK & FT. SMITH RAILWAY CO. v. OPPENHEIMER

Supreme Court of Arkansas

October 2, 1897

Appeal from Conway Circuit Court, JEREMIAH G. WALLACE, Judge.

Judgment reversed.

Dodge & Johnson, for appellants.

Mere delay is not discrimination; all discrimination is not forbidden, only such as is unjust or undue. The act should be construed strictly. L. R. 22 Q. B. 642 (C. S. 40 A. & E. R Cas. 64); 9 A. & E. R. Cas. 126; id. 207; 4 S.W. 875; 2 Ker 245; 14 Wend. 215; 40 Mo. 491; 46 Mass. 458; 32 Vt. 559; 6 Duer, 376; 5 Hun, 562; 1 L. R. C. p. 385; 12 Conn. 410; Hutch. Carriers (2 Ed.), §§ 114-115; 20 Wis. 894; 2 Shower, 127; 5 Bing. 217; 51 Mo. 311; 10 Biss. 170; 12 N.Y 245; 20 Wis. 594; 102 N.Y. 590; 22 A. & E. R. Cas. 421; 16 Fla. 623 (26 A. R. 737); 40 A. & E. R. Cas. 57; Hutch. Carr. § 302; 110 U.S. 507.

A. S. McKennon, for appellees.

The question of discrimination was fairly submitted to the jury, and the evidence sustained the verdict. 24 S.W. 1002; 8 Am. & Eng. Enc. Law, pp. 954-958.

R. J. White and Carmichael & Seawel (on motion for rehearing), for appellees.

The English "Railway and Canal Traffic" act is similar to our statute, and it omits the word "locality;" yet it has been held to include localities as well as individuals. 27 A. & E. R. Cas. 22; 4 Ry. & Can. Traf. Cases, p. 1; 1 Ry. & C. T. Cases, 63, 109, 116 and 155; ib. 121, 143; 1 Ry. & C. T. C. 202; 7 ib. 184, 190; 4 ib. 291. Our statute being modeled after the English act, we adopt the construction placed on it, along with the act. 51 Ark. 534; 60 Ark. 288, 110 U.S. 628; S. C. 29 A. & E. R. Cas. p. 59, and note. The effect of American decisions construing statutes similar to ours is to extend this application to localities. 149 U.S. 680; 63 Tex. 322; 67 Ill. 10; 71 Wis. 372; 3 Interstate Com. Com. Rep. 594; 35 A. & E. Ry. Cas. 519; 4 Elliott, Railroads, § 1467; 1 Wood, Railways, § 195. Intent of defendants to be inferred from their acts. 2 Ry. & C. T. Cases, 73; 9 A. & E. R. Cas. 123; 162 U.S. 219; 1 Wood, Railways, § 198; 4 Ell. Railroads, § 1477; 7 R. & C. T. Cas. 184.

BATTLE, J., BUNN, C. J., and RIDDICK, J. concur. WOOD, J., dissenting. HUGHES, J., concurs in the dissent.

OPINION

BATTLE, J.

This action was instituted under an act entitled "An act to prevent unjust discrimination, * * * and to prevent discrimination between transportation companies and individuals in furnishing cars or motive power," and approved March 24, 1887, for the purpose of collecting a penalty. The plaintiffs recovered a verdict, and a judgment thereon, against the defendants, for the sum of fifteen hundred dollars.

The basis of the action was the failure of appellant to furnish the same facilities for transporting cotton from Altus (the shipping station for Roseville) as were furnished at Van Buren. This, it was insisted, was an undue and unjust discrimination in favor of the shippers at Van Buren against the appellees. The important facts are undisputed, and are substantially as follows. The cotton crop of 1891 was unusually large. In Arkansas it exceeded anticipation, and was 100,000 bales larger than the preceding crop. The weather favoring, it was rapidly gathered and hurried to the railroads for transportation to market. The railroad companies were not prepared to ship it at many stations as rapidly as it was offered for shipment. At these stations it soon filled their platforms, after which they refused to receive more until room for it was made by the shipment of that already received. At Roseville, where the appellant had established a receiving station for freight to be shipped at Altus over their road, the platforms were covered with it, and appellant was unable to ship it for many days, because it did not have cars sufficient to meet the demands for transportation upon their road. During the months of October, November and December of that year (1891) appellees hauled to Roseville several hundred bales of cotton to be shipped at Altus over appellant's road, and tendered them to its agent, and he refused to receive them, giving as his reason for so doing that the station platform at Altus was filled, and he had no room to store or care for it. This cotton lay at Roseville several days awaiting transportation. At Van Buren, a town on appellant's road, however, cotton was promptly shipped. The facilities there for shipping were greater than at any other place on the road except at Little Rock. This was owing to the fact that there are several roads running to that town, called the Kansas & Arkansas Valley Railway, the St. Louis & San Francisco, the Greenwood branch of the St. Louis, Iron Mountain & Southern Railway, and appellant's railway, the two roads first mentioned competing with the last; and to the fact that appellant proportionately furnished more cars at that place than at others.

The reason more cars were used at Van Buren in proportion to freight shipped than were furnished by appellant to other stations or depots was, it is at one of the termini of their road; and another was, there were wholesale merchants at Van Buren, who shipped goods there by the car load, and thereby caused many cars to be unloaded at that town. Being a terminal point, many empty cars necessarily accumulated there. In such cases it was the duty and custom of the agent at the terminals to use as many of the cars as were needed there, and to report the remainder to the transportation department for distribution.

The statute upon which this action is based (Act March 24, 1887), is as follows:

"Sec. 1. All individuals, associations and corporations shall have equal rights to have persons and property transported over railroads in this state, and no unjust or undue discrimination shall be made in charges for, or in facilities for, transportation of freight or passengers within the state," etc.

"Sec. 4. No discrimination in charges or facilities for transportation shall be made between transportation companies and individuals, or in favor of either by abatement, drawback, or otherwise, and no railroad, or any lessee, manager or employee thereof, shall make any preferences in furnishing cars or motive power," etc.

"Sec. 12. That any railroad corporation that shall violate the first, fourth, * * * sections of this act * * * shall forfeit and pay for every such offense any sum not less than fifty dollars nor exceeding one thousand dollars and costs of suit, to be recovered by civil action by the party aggrieved, in any court having jurisdiction thereof," etc.

The only parties this act declares shall have equal rights to have persons and property transported over railroads in this state are individuals, associations and corporations. Having declared that they are entitled to these rights, it further declares that "no unjust or undue discrimination shall be made in charges for, or in facilities for, transportation of freight or passengers." Against whom is this discrimination prohibited? Manifestly, those the act declares are entitled to equal rights. If it meant that it shall not be made against any party, with regard to those named, the first clause would entirely superfluous. Having declared who are entitled to equal rights, it follows that the refusal to them of the same rights allowed to others would be a discrimination. Hence the act forbids unjust or undue discrimination against them in the transportation of persons or property, and imposes a penalty upon any railroad company who shall be guilty of the forbidden act.

Appellees sued for the penalty on account of a discrimination against them as an association,--as a partnership. Are they entitled to if?

The act makes no changes in the common law to the rights of the parties named therein to equal facilities for shipping, or as to unjust discrimination. At common law it was the duty of the common carrier to receive and carry all goods offered for transportation upon receiving a reasonable hire; and every one had equal rights to transportation by them. Yet, under this rule, different facilities furnished under circumstances essentially different did not constitute an unjust or undue discrimination, when the difference was in accordance with the difference in circumstances, and the difference was not intended to injure another shipper, or give, or did not tend to give, the favored shipper material advantages over him in their competition in business. The observance of this rule accomplished the design and object of the law in prohibiting discrimination, which was to prevent common carriers from favoring one shipper to the injury of another in the same business, from suppressing or diminishing competition, and from creating monopoly, Hays v. Pennsylvania Co., 12 F. 309; Samuels v. Louisville & N. R. Co., 31 F. 57; Messenger v. Pennsylvania Railroad Co., 36 N.J.L. 407; Phipps v. London & N.W. R. Co., 50 Am. & Eng. R. Cases 497; Hutchinson on Carriers, § 302; 1 Wood, Railway. §§ 197, 198; 4 Elliott, Railroads, § 1676.

Was there any unjust or undue discrimination by appellants against appellees? Superior facilities for shipping were furnished at Van Buren. If this was a discrimination, it was not against any particular individual or association, nor against the shippers at any particular station, but against the shippers collectively at every station on the railroad except at Van Buren; that is to say, in favor of one locality against all others. They furnished the same shipping facilities to all persons, associations and corporations at Van Buren which they refused to all parties at other stations. Hence there was no discrimination against individuals or associations, they being treated alike under the same circumstances.

There was no intention to injure appellees by discrimination....