purpose of furnishing improved means of transportation and travel to all persons alike, without unjust discrimination between individuals or communities, and they were accepted with the knowledge that the nature of the grant imposed that obligation.

$460. This question of unjust discrimination is not before this court for the first time. In the case of Vincent against this same company,1 we held that railway companies can make no injurious discrimination between individuals, and therefore could not charge one rate for delivering grain at a certain elevator in Chicago and a higher rate for delivering at another elevator in the same city, and equally accessible upon its line. The same rule was recognized in The People v. C. & A. R. R. Co., though the facts of that case were found not to require its application. The rule was again declared in C. & N.W. R. R. Co. v. The People. The opinion in that case cites several English and American cases in which it was held that railway companies could not be permitted to practice an injurious and arbitrary discrimination between different persons, and we now refer to them without further citation.

3

2

§ 461. If, then, an unjust discrimination is not to be permitted as between individuals, in regard to freights, is it any more permissible as between different communities or localities? We are wholly at a loss to discover the slightest difference, in reason or principle. If a farmer, living three miles from the Springfield station, upon this company's road, is

Vincent v. Chicago and Alton R. R. Co. 49 Ill. 33.

2 People v. Ibid. 55 Ill. 111.

3 Chicago and Northwestern R. R. Co. v. People, 56 III. 265

charged fifteen cents per bushel for shipping his corn to Chicago, is it just that the farmer who lives twenty miles nearer Chicago, should be charged a higher sum? Certainly not, unless the railway company can show a peculiar state of affairs to justify the discrimination, and this must be something more than the mere fact that there are competing lines at one point, and not at the other. The discrimination in such a case is as much a discrimination between individuals as it would be in reference to two persons living in the same locality, and shipping at the same station, unless, as before stated, a satisfactory reason can be given for discrimination between the points of shipment, and such a reason, in the case supposed, it is not very easy to conceive.

$462. So, too, in the case before us. The resident of Bloomington, who sends to Chicago for a car of lumber, is charged by the company at the rate of five dollars per thousand feet for transportation. The resident of Lexington, who orders the same lumber at the same time, is charged five dollars and sixty-five cents per thousand feet for a transportation sixteen miles less in distance. Is there not here, unless an explanation can be furnished by the company, an unjust discrimination between individuals, quite as much within the prohibition of the principles of the common law, as would be an unjust discrimination between individuals of the same town? We have endeavored to show on what a firm foundation rests the constitutional power of the legislature to prohibit unjust discrimination in railway freights, even conceding what is claimed for their charters as contracts.

§ 463. We should, however, be doing the counsel

for appellant an injustice, if it were to be inferred, from what we have said, that they distinctly assert a right, on the part of the company, to make unjust discriminations. We understand them to concede, in the conclusion of their argument, the power of the legislature to prohibit such discriminations, but they insist that no discrimination is unjust, if the person against whom it is made is not himself charged an unreasonable rate.1 They therefore averred, in their plea to the information, that the charges for freight to Lexington were, in fact, reasonable, and those to Bloomington were unreasonably low. But in our opinion, if the act of the legislature had directed its penalties, as it should have done, not against all discriminations, but only against unjust discriminations, and had made that the issue to be tried, it would have been no answer to aver, in the plea, that the larger rates for the less distance were reasonable rates. That would have had only an argumentative bearing upon the issue to be tried, to-wit: the existence of an unjust discrimination

In other words, the right to provide a general remedy is denied. Practically, the difference is all important. If each case had to be acted upon separately, then no feasible remedy for extortion would be possible, and statutory aid would be inoperative and void. It is exceedingly difficult to allow any discrimination without shutting the door against any effective means of reaching the evil, and it is by no means certain that discrimination under any circumstance is allowable. If it would not directly lead to injustice, it might indirectly, and while the law of tort allows no compensation for "consequental damages," it is entirely competent for law to guard the approaches to wrong and danger. For example, quarantine laws are based on the assumption that all vessels must be treated alike, and that any discrimination would be unjust. This subject will be further discussed in the next chapter.

between neighboring towns. What is a reasonable rate of freight over a railroad is at best a mere matter of opinion, depending on a great variety of complicated facts, which but few persons could intelligently investigate, and which it would be wholly in the power of the company to furnish or withhold. Railroad experts might be produced, who would testify that, in their opinion, the rate to Lexington, in the present case, was a reasonable rate, but the fact that a less rate was charged for the greater distance to Bloomington, if the difference was a permanently established, and not a casual difference, and if it could be explained only by the fact that there was a competing line at one place and not at the other, might be well accepted as conclusive proof that the rate to Lexington was not a reasonable rate. The only issue to be made, under a law properly framed, would be, whether there was an unjust discrimination or not. If on the trial of such an issue the prosecutor proves a permanently established discrimination like that disclosed by the present record, and the company can show no other reason for it than the existence of a competing line at the favored point, the defense must be held unsatisfactory, notwithstanding witnesses may testify that they believe, as a matter of theoretical opinion, that the rates to Lexington are reasonable. They cannot be reasonable, and the discrimination must be unjust, if the lesser rates for the greater distance have been established merely because the company has ceased to exercise at that point a practical monopoly. It cannot be supposed that either of the competing lines would establish a permanent rate of charges upon a scale that would not furnish a remunerative profit. The rates to

Bloomington would be established under the influence of a fair competition, which, by the ordinary laws that govern commerce, might be relied upon as establishing a rate not unreasonably low. At Lexington, the rates would be established by the uncontrolled discretion of the company, and it should not cause surprise if they were fixed unreasonably high. If the rates are not unreasonably low at Bloomington, they are unreasonably high at Lexington. If they are unreasonably low at Bloomington and at all other points touched by competing lines, is it not certain that the company will indemnify itself by charging at the stations where there is no competition, a rate unreasonably high? And will not a discrimination arising solely from such cause be necessarily an unjust and injurious discrimination, as to all persons shipping or receiving freights at the non-competing stations?

$ 464. If Lexington is a town where a considerable business is done, it is evident that this discrimination of rates, if permanently established, will diminish its business and check its growth. It was never intended or expected that these corporations should use their power to benefit particular individuals, or build up particular localities, by arbitrary discriminations in their favor that must cause injury to other persons or places engaged in rival pursuits or occupying rival positions. It is in vain to say, in defense of such discriminations, made without just cause, that the rate of charges against the injured person or locality, is a reasonable rate, and therefore no injury is done. An injury, as a matter of fact, is committed, in the manner just suggested, and the legislature has the right to require the corporation to show a sufficient.