“ One aggrieved party may receive damages far beyond the money equivalent of the discrimination; another may receive much less; still another may receive nothing at all. If we were to look to the outcome of these private actions for violation of the equality provision of § 2 of the act, and treat them as amounting in the end to a determination of the freight rate, the inevitable result (on the theory adopted by the court) would be that one violation by the carrier would result in as many different rates as they were different shippers to be discriminated against. ”

“ Other things being equal, the profits of the plaintiff, upon the production and sale of the 40,000 tons of coal, were $12,000 less than otherwise they would have been. It does not appear that other things were not equal. Yet the decision is, that there is 'no proof of injury, . . . expense incurred, or damage of any sort suffered.' Is not the payment of a full freight bill, as compared with a reduced freight bill, an 'expense incurred?' What other expense could be incurred by a shipper, attributable to a discrimination in rates? ”

“ Courts everywhere are insistent that remote and consequential and speculative damages shall be excluded from consideration, and that only those directly and proximately resulting from the injury shall be considered. What can be more direct and proximate as damage to a shipper against whom a discrimination is practised, than the measure of the discrimination as shown by a comparison of freight bills? ”

“ There was no act of Parliament that 'made the lowest rate the lawful rate,' or in terms declared that any excess over the lowest rate was extortionate, or recoverable in an action at law, as for an overcharge. The remedy that the courts of England accorded to the aggrieved shippers against whom the railway companies had discriminated was based upon an act of Parliament that, so far as concerns the measure of damages for an unlawful discrimination, is not to be distinguished from § 2 of the interstate commerce act; indeed, it furnished the model for that section. ”

“ Making an illegal undercharge to one shipper did not license the carrier to make a similar undercharge to other shippers, and if, having paid a rebate of 25 cents a ton to one customer, the carrier, in order to escape this suit, had made a similar undercharge or rebate to the plaintiff, it would have been criminally liable, even though it may have been done in order to equalize the two companies. For, under the statute, it was not liable to the plaintiff for the amount of the rebate paid on contract coal, but only for the damages such illegal payment caused the plaintiff. ”

“ With great respect, I feel constrained to dissent from the view thus taken of the act of Congress, and from the result to which it leads in this case.
I have not been able to bring myself to accept that view, and, on the contrary, consider that § 2 of the act deals with the prohibited discrimination in rates as a direct pecuniary injury to the disfavored shipper, precisely equivalent in amount to the discrimination; that the act looks upon the common carrier as a public servant, bound to treat all shippers alike ”

“ Under the statute there are many acts of the carrier which are lawful or unlawful according as they are reasonable or unreasonable, just or unjust. The determination of such issues involves a comparison of rate with service, and calls for an exercise of the discretion of the administrative and rate-regulating body. For the reasonableness of rates, and the permissible discrimination based upon difference in conditions, are not matters of law. ”

“ In violation of the state law the railroad allowed a manufacturing company a rebate of 20 cents a ton on coal shipped. In a suit for the recovery of damages the trial court charged the jury that the difference between the high and low rate was the measure of recovery. This was reversed, the court saying: 'The 'amount of injury suffered' is the measure of the single damages to be allowed. But it does not at all follow that the amount of injury suffered is the difference in the rates charged. ”

“ It claimed that it was a mere matter of mathematics, and that for every rebate on contract coal, plaintiff was entitled to a like reduction on every ton of its coal without further proof of damage or injury.
6. To adopt such a rule and arbitrarily measure damages by rebates would create a legalized but endless chain of departures from the tariff; would extend the effect of the original crime; would destroy the equality and certainty of rates; and, contrary to the statute, would make the carrier liable for damages beyond those inflicted, and to persons not injured. ”

“ It cannot be right to calculate the amount of overcharge on all the coal sent by the defendants to Grimsby without reference to the quantity on which, or the times during which, a less rate was charged to Bannister, and, as already stated, we do not see on what principle to fix the amount of alleged overcharge. Under the peculiar circumstances of this case the defendants have not shewn any grounds which will justify the court in holding the railway company liable to them for any overcharges or damages. ”

“ The courts of England have held that because § 2 of this act establishes rights beyond those existing at the common law, and § 3 gives an extraordinary remedy therefor, and § 6 excludes other remedies, there can be no recovery in an ordinary action for damages, based upon the mere infringement of the provisions of § 2; but it has been queried whether, for a violation of § 2, if such violation involves an unlawful extortion of money for carriage, the ordinary remedies at law for extortion may not be applicable. ”

“ What, then, is to be the measure of damages? Whatever it is to be, it is apparent that we must henceforward abandon the simple and direct method of computing the rate differentials, and therefrom ascertaining the amount of the reparation, and must enter into inquiries respecting the state of the market, and ascertain whether, upon the precise date that the goods of the injured party reached the market, goods of the like character owned by the favored shipper came into direct competition with them. ”

“ Since the English decisions referred to were rendered prior to the adoption of our act, and afforded a construction of the English acts from which ours was taken, it is of the utmost importance that the terms of the respective acts of Parliament and the precise grounds of the decisions should be clearly understood.
The first of those acts is the so-called equality clause, being § 90 of the railways clause consolidation act 1845 (8 & 9 Vict. chap. 20) , enacted to consolidate in one act, certain provisions usually inserted in the 'special acts' under which railway companies were incorporated. ”

“ One single act of charging a person less on one particular occasion would not, I think, make the higher charge to all others extortionate during all that day, or week, or month, or whatever the period might be. ”

“ Considering the multitude of instances in which discrimination has been practised by carriers, in ancient and modern times, it is remarkable how little is to be found in decisions or text-books which treat of the elements and measure of damages in such cases. ”

“ The plaintiff's complaint is not that others are charged less than himself, but that the fact of their having been charged less entitled him to claim the same rate of charge, and that all beyond that rate is overcharge very fact of the smaller charge to others is the ground of his complaint of an overcharge to himself. ”

“ The 'group rates' comprised the rates from each of the collieries in a certain district, to a number of towns and places in various parts of England, and the coal going from any one of the collieries comprised in the group to any one of these towns and places must pass defendant's colliery, which was on the same line of railway. The judges held (L. R. 13 Q. B. Div. 678) that the group rates were a violation of § 90 of the act of 1845, and that the overcharge could be recovered in accordance with Evershed's Case. ”

“ In that event not the shipper, but the purchaser, who paid the freight, would have been the person injured, if any damage resulted from giving rebates. To say that seller and buyer, shipper and consignee, could both recover, would mean that damages had been awarded to two where only one had suffered;--
Or, to take another example,-a favored dealer may have shipped 10,000 tons of coal to the open New York market, receiving thereon a rebate of 35 cents a ton, or $3,500. The plaintiff at the same time may have shipped 20,000 tons and sold the same at the regular market price. ”

“ If complainants were obliged to follow every transaction to its ultimate result, and to trace out the exact commercial effect of the freight rate paid, it would never be possible to show damages with sufficient accuracy to justify giving them. ”

“ Injuria sine damno. The plaintiff is wronged, but not harmed; it may sue, but may not recover.
If the rate differential is not a proper element of damages in actions brought in the courts, I suppose it will not be proper for the Commission to adhere to it. Yet the sheer impossibility of adopting any other measure of damages, in the multitude of reparation cases that the Commission has to deal with, is perfectly obvious. ”

“ That power has been vested in a single body, so as to secure uniformity and to prevent the varying and sometimes conflicting results that would flow from the different views of the same facts that might be taken by different tribunals.
None of these considerations, however, operates to defeat the courts' jurisdiction in the present case. For even if a difference in rates could be made between free and contract coal, none was made in the only way in which it could have been lawfully done. ”

“ Stat. Supp. 1911, p. 1289; Armour Packing Co. v. United States, 209 U.S. 56, 83, 52 L. ed. 681, 695, 28 Sup. Ct. Rep. 428. The tariff, so long as it was of force, was, in this respect, to be treated as though it had been a statute, binding as such upon railroad and shipper alike. If, as a fact, the rates were unreasonable, the shipper was nevertheless bound to pay and the carrier to retain what had been paid, leaving, however, to the former, the right to apply to the Commission for reparation. ”

“ It being known how much coal was actually carried at the reduced rate for Bannister during these periods, it seems to me to result, from the principle established in the cases of Sutton and Evershed, that the appellants ought to have been charged at the same reduced rate up to, but not beyond, the same total quantity during the same period of time, and that this is the true measure of overcharge, for which the arbitrator ought to give them credit. ”

“ The statute gives a right of action for damages to the injured party, and by the use of these legal terms clearly indicated that the damages recoverable were those known to the law and intended as compensation for the injury sustained. It is elementary that in a suit at law both the fact and the amount of the damage must be proved. ”

“ This court (by Mr. Justice Brewer) , in dealing with the case, pointed out (p. 455) that the tariff complained of was a joint tariff, and not a tariff of local rates on grain to Rochelle, Illinois, or even to Chicago, which was the eastern limit of defendant's road; that (p. 457) the pleader had not made out a case on which it could be said that the so-called joint tariff was a mere device under color of which defendant was shipping grain from Nebraska points to Chicago at less rates than were being charged to the nearer points in Iowa ”

“ They are: 'If he [the plaintiff] had shipped to New York and had been charged local rates, he might have recovered any excess thereon over through rates.'
In short, Parsons had made only 'local' shipments (Iowa to Chicago) , and had paid the regular published rates therefor. The court held that he was not injured, under the particular circumstances of the case, by the failure of the railway company to file and publish a certain tariff of through rates, applicable not to Chicago shipments, but only to those destined to New York and other points on the Atlantic seaboard. ”

“ And by that section they are to have the 'full amount of damages sustained in consequence of any such violation.'
The word 'damages,' according to its customary usage, is at least as properly applicable to the immediate and direct result of imposing higher charges upon one shipper than are customarily charged under similar circumstances and for a like service to other shippers, as it is to the ultimate consequences of such discrimination. The purpose that runs throughout the act is to require equality of treatment. ”

“ If plaintiff and one of the favored companies had both shipped coal to the same market on the same day, the rebate on contract coal may have given an advantage which may have prevented the plaintiff from selling, may have directly caused it expense, or may have diminished or totally destroyed its profits. ”

“ L. R. 4 H. L. 226, was an action brought and judgment recovered for 'the amount of certain alleged overcharges.' But they were 'overcharges' only in the sense that they were the differential between the rates charged to the plaintiff and those charged to others. The opinions of the judges being called for by the lords, Mr. Justice Blackburn delivered the prevailing view, expounding the subject historically, as follows (p. 237) : 'At common law a person holding himself out as a common carrier of goods was not under any obligation to treat all customers equally. ”