dissenting. Personally I am glad that the judgment of the majority of the court affords a means by which the plaintiffs in error can sustain a verdict against the defendant. Judicially I can not concur in that judgment. I expressed our personal view in the opinion when the same case was heretofore before this court (Central of Georgia Railway Co. v. Augusta Brokerage Co., 2 Ga. App. 511, 58 S. E. 904); but, after a very mature consideration of the evidence then, we could not see how to- escape, tire effect of the decision of the Supreme Court (122 Ga. 646).. We were bound to declare the law, not according to our views, but-according to the prior adjudication. There has been no change in the evidence since the case was here before. By agreement of counsel, on the trial now under review the approved brief of evidence on the former trial was read to the jury, in lieu of the testimony being again delivered by the witnesses.
To my mind, nothing is more obnoxious legally than a monopoly.. In my view, nothing should be less encouraged than a policy which* by the destruction of competition, must necessarily create a monopoly either in trade or in transportation. In my opinion, the facility with which monopoly can, under existing conditions, be created is so much greater than ever, that neither the law as to the offenses defined by Blackstone, in volume 4, chapter 12, of his Commentaries, nor the Boman law upon similar subjects, is-adequate to deal with the existing situation. It is not material to this discussion to say whether the effect of the line of conduct, would be. to create a monopoly in cottonseed in the hands of the oil mills- at Augusta or not. As said by Justice Bradley in the. case of Butchers Union Co. v. Crescent City Co., 111 U. S. 761 (4 Sup. Ct. 656, 28 L. ed. 585), “I hold it to be an incontroverti*193ble proposition of both English and American public law, that all mere monopolies are odious and against common right. . . Monopolies are the bane of our body politic at the present day.” And, as said by Justice Brown in the case of Pearsall v. Great Northern Ry. Co., 161 U. S. 676 (16 Sup. Ct. 714, 40 L. ed. 838), "the logical effect of all monopolies is an increase of price of the thing produced, whether it be merchandise or transportation.” However, if the decision of the Supreme Court in Central of Ga. Ry. Co. v. Augusta Brokerage Co., supra, means anything, it means that the Central of Georgia Railway Company, as a common carrier, had the right to establish and maintain a policy, as to cottonseed at Augusta, by which it would receive the benefit of the profit accruing from their transportation away from Augusta, and that it was not required to afford any facility to those who would contravene its policy or render it less effective. This was held not to be discrimination against a shipper, but against a commodity, and was distinctly ruled to be permissible, by this unequivocal declaration of the law. There is no evidence in the record that the plaintiffs were discriminated against, even if their cottonseed were. The evidence is uncontradicted that the railway company placed cars at the plaintiffs’ warehouse, for grain, hay, lumber, or any other product except cottonseed. We are all agreed that the plaintiffs can not recover for the refusal of the carrier to issue through bills of lading beyond its terminus. Indeed the Supreme Court in this ease was not by any means announcing this principle for the first time, and it is only incidental. The point on which we differ, in my opinion, is the axis around which this whole case revolves. The crux of the whole matter is the refusal of the railway company to place a car' — No. 4769, loaded with cottonseed, at the plaintiffs’ warehouse, so as to make it easier for the plaintiffs to defeat the policy which the railway company had established, and which the Supreme Court, in Central Ry. Co. v. Augusta Brokerage Co., supra, has expressly sanctioned, as not being discriminatory. In other words, under the decision of the majority of this court, the plaintiffs are permitted to recover damages for the refusal of the railroad company to afford them a facility for defeating a policy which the Supreme Court says the defendant has the right to maintain. I grant that there is evidence in the record that the defendant company placed cars of cottonseed at the *194■warehouses of the cottonseed-oil mills,-but I reiterate the statement contained on page 514 of the opinion in 2 Ga. App., that “'the plaintiff proved the discrimination, but did not prove that any commodity was discriminated against except cottonseed.” There is, so far as I can discover, no rule of the Eailroad Commission which requires a carrier to deliver a loaded car at a private sidetrack of a consignee. The evidence is undisputed that such placing of a car of cottonseed involved expense to the railway company, and effected a saving of at least $2.50 to the dealer in cottonseed; that without this, the Augusta Brokerage Company could not prevail in the effort to ship seed away from Augusta; and unless the railway company was forced to render this gratuitous assistance to its adversary, it could successfully carry out the policy it had adopted to increase its legitimate business at Augusta by securing freight on the shipments of the manufactured products of cottonseed from Augusta. The Supreme Court recognizes a state of war between the parties, for such profits as may accrue from handling cottonseed at Augusta (the brokerage company’s profits to arise from sales and the railway company’s profits to arise from freights), and calls for a fair fight. The decision of this court says, in effect, “You can fight if you wish, but we will first take away from one of the combatants his only weapon of defense or offense.” I would have been willing, as an original proposition, to outlaw one of the combatants as being engaged in practices not sanctioned by the rules of war; but forced, as I am, by the precedent in Central Ry. Co. v. Augusta Brokerage Co., 122 Ga. 646, to hold the cause of quarrel just, I am unwilling by my silence to consign one of the combatants, after stripping him of his arms, to the mercy of his antagonist.