(dissenting.) Necessarily, under the construction given the act by the court, there could be no discrimination between individuals at different stations. So long as all the individuals at any given station are treated alike, there can be no discrimination between these and the individuals at some other station, although at the one station all facilities desired or required are furnished while at the other they are wholly denied. This, in our opinion, was not the intention of the legislature, and such a construction is not justified by tbe language of the act. There is nothing in the act limiting the discrimination to individuals of the same station, and, without some such restrictive words in the act itself, we can find no authority for so limiting it. The legislature evidently intended to prevent any undue or unjust discrimination between “individuals, associations and corporations” anywhere in the state, whether shipping from the same or from different stations. If the construction of the court be correct, any railroad in the state may arbitrarily furnish shipping facilities to one station and withhold all facilities from another rival station similarly situated, without being subject to the penalties of the act. (When we speak of place or station, we mean the individuals, associations or corporations, as the case may be, shipping from said place or station. For the abstract thing called the “station” or “locality” makes no shipments, and has no commercial or financial life, apart from the individuals, etc., residing and doing business there.)
It is manifest that the exercise of such absolute power upon the part of railway corporations would be disastrous to the business prosperity of the individuals so discriminated against at any given station. Nor can it be denied that ofttimes the most powerful incentives exist for these corporations to make such discriminations. For instance, they may own little property at one station, and have large possessions at another and rival business point, and it may be to their interest to destroy the town where they have little in order to build, up the place where they have much. In what more effectual way could this be done than by denying transportation facilities to the one while furnishing to the other. Again, at one station on their road there may be competing lines, while at another, and, may be, its commercial rival, there are none. ' Now, to meet the competition at the one station, and to do it with the least expense possible, they may take away from the other station, where there is no competition, all or nearly all its facilities for transportation, in order to furnish to the station where there is competition. Can it be said that there would be no discrimination in cases of this kind, under the act? or that a discrimination based upon such considerations as these, alone, would not be undue and unjust? We think not. Doubtless to prevent just such acts of discrimination as these, and all others, between individuals, etc., shipping from different stations, as well as acts of undue and unjust discrimination between individuals, etc., shipping from the same station, the act under consideration was passed.
The supreme court of Illinois, in speaking of a case where there had been a discrimination in freights between individuals at different stations, used this pertinent language: “The discrimination in such a ease 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 further: “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 $5.00 per thousand feet for transportation. The resident of Lexington, who orders the same lumber at the same time, is chargedfive dollars and sixty-five cents per thousandfeet for 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.” And the court held that the fact of there being a competing line of road at the station where the individual lived in whose favor the discrimination was made would not be a sufficient explanation. Chicago & A. R. Co. v. People, 67 Ill. 11. Precisely the same principle would apply whether the act of discrimination were in the matter of freight charges or facilities of transportation.
The act under consideration is: “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. There are no terms of limitation as to locality except “ within the state” (and, of course, the legislature had no power to legislate beyond the state). The restrictive words as to the discrimination are that it shall not be “unjust' or undue.” The use of these terms (“unjust or undue”) shows that the legislature knew that there would be, necessarily, some discrimination, but that it was only such as was “unjust or undue” that was inhibited.
Section 6193, Sand. & H. Dig., makes it the duty of railroads to “furnish sufficient accommodations for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, offer or be offered for transportation at the place of starting and junctions of other railroads, and at sidings and stopping places established for receiving and discharging way-passengers and freights, and shall take, transport, and discharge such passengers and property at, from and to such places on the due payment of tolls, freight or fare legally authorized therefor.” The next section provides “that the railroad shall pay to the party aggrieved all damages sustained by reason of a violation of this act, with costs of suit.” See § 6194, Sand. & H. Dig.
The statute prohibiting unjust discrimination, supra, furnishes an additional remedy to the statutes just quoted, by way of penalty against those coming within its terms. All these statutes are but declaratory of the common law, which makes it the duty of common carriers to furnish facilities for and to transport all goods offered in the ordinary course of business; and to prohibit any unjust and undue discrimination in furnishing such facilities of transportation. 4 Elliott, Railroads, § 1467, and authorities cited in note; 1 "Vybod, Railways, § 195. “It is,” says Judge Elliott, “safe to-say that the rule is that a railroad carrier, so far as concerns the receipt and transportation of goods, however it may be as to the rates of freight, must, where the conditions and circumstances are identical, treat all shippers alike. It cannot furnish facilities to some shippers, and deny them to other shippers, unless there is a difference in condition or circumstances such as makes the discrimination a just one.” 4 Elliott, Railroads, § 1468.
A common carrier, for such goods as he undertakes to carry, is bound to provide reasonable facilities of transportation to all shippers at every station who, in the regular and expected course of business, offer their goods for transportation. The carrier is not required to provide in advance for any unprecedented and unexpected rush, of business, and therefore will be excused for delay in shipping or even in receiving goods for shipment until such emergency can in the regular and usual course of business be removed. Elliott, Railroads, § 1470; Hutchinson, Car., § 292.
The Supreme Court of Wisconsin voices our opinion of the duty of railroads to distribute cars at different stations as follows: “The company owes the same duty to shippers at any one station as it does to the shippers at any other station of the same business importance. The rights of all shippers applying for such cars, under the same circumstances, are necessarily equal; no one station, much less any one shipper, has the right to command the entire resources of the company to the exclusion or prejudice of other stations and other shippers. Most of such suitable cars must necessarily be scattered along and ■ upon (the company’s) different lines of railroad, loaded or unloaded. Many will necessarily be at the larger centers of trade. The conditions of the market are not always the same, but are liable to fluctuations, andmay be such as to create a great demand for such cars upon one or more of such lines, and very little upon others. Such ears should be distributed along the different lines of road, and the several stations on each, as near as may be in proportion to the ordinary business requirements at-the time, in order that shipments may be made with reasonable celerity. * * Itis theextent of such business ordinarily done on a particular line, or at a particular station, which properly measures the carrier’s obligation to furnish such transportation. But it is not the duty of such carrier to discriminate in favor of the business of one station to the prejudice and injury of the business of another station of' the same importance.” Ayers v. N. W. Ry. Co., 71 Wis. 372. In Rice v. Railroad Co., 3 Interstate Com. Rep. 594, Walker, Commissioner, said: “It is the duty of a common carrier to provide adequate equipment for the business of his line; if in time of special pressure some one must wait, the annoyance must be distributed with all possible equality.” Again, “A common carrier is under obligation to serve the public equally and justly; it is unlawful for him to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation or locality.” True, this was said under the interstate commerce act expressly naming locality; but, under the construction we give the act before us, it is equally applicable to the case in hand. See also Hutch. Carriers, § 297; 1 Wood, Railways, § 195.
The statute seeks to enforce equality of treatment to all shippers under like circumstances. As we have seen, not every act of discrimination is unlawful. But there is always a presumption against it. It devolves upon the shipper, in the first instance, to show the discrimination, and then the burden is upon the railroad to show circumstances that would justify or excuse it, i. e., to show that the discrimination is just. 1 Wood, Railways, § 198; 4 Elliott, Railroads, § 1477.
The statute does not define what is unjust or undue discrimination. The Supreme Court of the United States in Texas & P. R. Co. v. Interstate Com. Com., 162 U. S. 219, says that “such questions are questions, not of law, but of fact.” But we agree with Judge Elliott that this can only be so in a loose sense, and that “in strict accuracy, it is a question in which the elements of law and fact are component parts.” 4 Elliott, Railroads, § 1697. As was said by the Supreme Court of Texas: “It is a question of law and fact in the given case, and whether the discrimination be or not unlawful must be ascertained by applying to the facts of the case the principles of the common law,” since, as we have shown, our statute is but declaratory of the common law. Houston & T. C. R. Co. v. Dinkins, 9 A. & E. R. Cases, 126. Whether there has been a discrimination undue or unjust in any case depends upon the situation and circumstances of both the shipper and carrier, and is generally a question for the jury under proper instructions.
So far as the shipper is concerned, the relation or situation of one shipper towards the railroad is the same as that of any other shipper having the same class of -goods to ship, although they may be at different stations. For example, the merchant at one station having one hundred bales of cotton ready, and which has been offered for transportation, is in the same relation or situation to the railroad as a merchant at some other station, who has the same quantity and quality of cotton ready for shipment. Both are alike desiring and are entitled to prompt transportation and to equal facilities. But the relation of the railroad company to each of these shippers may be very different. For in - stance, one station may be the end of a division—a distributing point for cars; may have commission merchants shipping goods by the car load; or at the one station there maybe an unprecedented rush of business. These circumstances of the railroad company ex - isting at the one station and absent at the other may enable the rail - road to ship promptly for the shipper at the one while denying it to the shipper at the other. Here would be a discrimination, but no reasonable man could say it would be unjust or undue. But, if it should turn out that there was no unexpected rush of business at the one station that did not exist at the other; that the demand for transportation for cotton was about the same at both stations; but that at the station where the favored shipper lived there was a competing line of road, and that the cars which accumulated there (on account of its being a distributing point and on account of large, shipments by commission merchants) were held there, and not distributed to the other station pro rata, in order that the railroad might be able at all times to meet the competition, and to control the business of shipping cotton,—if there was testimony to justify a conclusion of this kind, a, verdict against the railroad for unjust or andue discrimination could not be disturbed. There was evidence upon which the jury might have reached this conclusion. The foregoing principles of law are applicable to cases of the kind under consideration. We have not closely scrutinized the instructions, to see whether they conform to our views of the law as above set forth, since the opinion of the court makes a reversal inevitable in any event. Assuming, however, that the directions to the jury are in accord with the views we have expressed, the judgment of the court should be affirmed.
Filed November 20, 1897. Hughes, J., concurs in the dissent.