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 Burén. This, it was insisted, was an undue and unjust discrimination in favor of the shippers at Van Burén 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 Rose-ville several days awaiting transportation. At Van Burén, 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 Burén 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 /oad; and another was, there were wholesale merchants at Van Burén, 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 fhan 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, without regard to those named, the first clause would be 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 it?
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 edmmon carriers from favoring one shipper to the injury of another in the same business, from suppressing or dimishing competition, and from creating monopoly. Hays v. Pennsylvania Co., 12 Fed. Rep. 309; Samuels v. Louisville & N. R. Co., 31 Fed. Rep. 57; Messenger v. Pennsylvania Railroad Co., 36 N. J. L. 410; Phipps v. London & N. W. R. Co., 50 Am. &. Eng. E. Cases, 497; Hutchinson on Carriers, § 302; 1 Wood, Railways, §§ 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 Burén. 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 Burén; 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 Yan Bnren 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. The facilities furnished at Van Burén in the months of October, November and December of 1891 were no greater than those furnished in previous years. The evidence does not show that a sufficient number of cars were not furnished at all the stations on the road prior to the fall and winter of 1891. Previous to that time Yan Burén had enjoyed -the same facilities as it did then, by reason of it being one of the terminals of the railroad, and the same distribution of cars was made. The complaint of unjust discrimination grew out of the unusually large cotton crop of 1891. Sufficient transportation was not furnished then because appellants had not anticipated it.
In the months of October, November and December of 1891 appellees were merchandising at Paris, in Logan county, and were not injured by reason of advantages gained, through superior-facilities for shipping, by those engaged in the same business. If they suffered, their competitors suffered in like manner. All were treated alike, and suffered in the same manner.
It follows that there was no unjust or undue discrimination against appellees, and that they are not entitled 'to a penalty.
Judgment of the circuit court is reversed, and final judgment is rendered here in favor of appellant.
Bunn, C. J., and Riddick, J., concur.