Page:The New International Encyclopædia 1st ed. v. 06.djvu/334

* DISCOVERY. 286 DISCRIMINATION. the nature of evidcuee for the opposite party, as it is not for the purpose of eouipclling him to disclose the manner in which he will enjeavor to establish his side of the ease. It will only l>e entertained in civil actions. It is >till a com- mon remedy in States having distinctly separate courts of law and equity, but has been abolished or has fallen into disuse iu States havin^j; codes of civil procedure, as in Xew York, where a part3' has a right to call his adversary as a witness and compel the i)rodHction of books and documents by siibimna diiccn ieciiiii. See EgriTY; EviDEXcE; .Siiipu;x.. DISCOVERY, TiiE. (1) The small ship in which Jlciuy Hudson explored the northeastern coast of America in 1010. The vessel was later commanded by Sir Thomas Button, who dis- covered Nelson's River, and still later (lt!l.'>-lti) by Ballin and by Bylot. She was originally built (l(i2l by the East India Company, to discover the "Xorthwest Passage' under the command of George Waymouth. (2) A steam-vessel em- ployed, together with the Alert, on the British .■rctic expedition. 1875-7C, under Sir George Nares. DISCRIMINANT. See Equ.^tiox ; Deter- Ml.NANTS. DISCRIMINATION (Lat. discriiiiiiialio, from ilixcriniiiiarr. to discriminate, from iliscer- iierc, to discern, from (lis-, apart + ccinere, to perceive). A distinction made between pa- trons by one engaged in a public or com- mon calling, such as that of common carrier, or farrier, or innkeeper. It is discountenanced by the common law. It is the legal duty of every one engaged in such a calling to serve all patrons in the order in which they present themselves, and to charge no one more than a reasonable rate. He has no right to ])ick and choose among them. Speaking generally, he must treat all alike: that is. he must alTord equal acconuiiodations and facilities to all. and be must not exact from any one an excessive rate for his services. Further than this, however, his ctimmonlaw duty does not extend. He is at liberty to charge less than a fair rate to any one. Others, it is held, cannot justly complain of such favoritism, so long as his charges to them are reasonable in amount. In the language adopted by the New York Court of .))peals: "Respecting jireference in rates of compensation, the carrier's obligation is to charge no more than a fair return in each particular transaction, and. except as thus restricted, lie is free to discriminate at his pleasure. This is the equal justice to all which the law exacts from the common carrier in his relations with the yiublic," To put it in another way. the common law prohibits positive discrimination, but does not forbid negative discrimination. It does not permit the common carrier to transport one man's coods in preference to those of another; but it does allow him to carry for favored in- diviiluals at an unreasonably low rate, or even gratis. When railways came into operation their man- agers took advantage nf this rule nf the common law, and made especially low rates for those who gave them their exclusive patronage, as well as for those whom they chose for any reason to favor. This practice has evoked a good deal of legislation, both in England and in the United Stales, having for its object the prohibi- tion of every form of discrimination or prefer- ence by carriers. The earliest statute on this subject is the act of Rarliamenl known as the Railways Clauses Consolidation Act of 184j. Its main purpose was to pmhibit a common car- rier from charging more to one person than, dur- ing the same time, it charged to others for the same kind of service. It has served as the model for Federal and State statutes in the United States. In some of the States its policy has hm-n imbediled in constitutional provisions. l"or ex- ample, the Constitution of Colorado contains thia language: ".Vll individuals, assuciations. aii'd corporations shall have equal rights to have per- sons and property transported over any railroad in this State, and no undue or unreaxinable dis- crimination shall be nuule in charges or in facilities for transportation of freight or pas- sengers within the State, and no railroad com- pany, nor any lessee, numager, or employee thereof shall give any preference to individuals, associations, or corporations in furnishing cars or motive power." This is a sound public ])oliey. It operates to prevent great raihuad cor- jwrations from building up the business of favored individuals and from wrecking that of others. The most important piece of Federal legislation bearing on this topic is l)est known as the Inter- state Commerce Act of 1887. Its avowed pur- ])ose is to promote and facilitate conunerce by the adoption of regulations to make charges for transportation just and reasonable, and to forbid luulue and unreasonable preferences or discrimin- ations. The evils which it was intended to cor- rect have been judiciallv described as ordinarily taking "the shape of inequality of charges made, or of facilities furnished, which are usuallv directed by or tolerated for the promotion of the interests of the corporation itself, or fi)r the benefit of some favored jH^rsons at the expense of others, or of some particular localilv or com- munity, or of some local trade or commercial con- nections, or for the destruction or crippling of some rival or hostile line." The act (Is not attempt, however, to prohibit all discriminations and pi'cfercnces. It aims onlv at those which arc unjust and unreasonable. It does not igncire the principles that one can .sell at wholesale cheaper than at retail, nor that the carrier should be allowed to nuike a specially low rate to secure business which would otherwise go by other competitive routes. See Iiilcrstnte Commerce Commission and authorities there cited. Also, Beale, On Bail- ments, chap. xi. (London. HlOOl ; Inlrrslale Vnmmrrii' Commission vs. Jiallimnrr anil Ohio Unilroiul. Wfi V. S. 20.3 (1S02) : Tcxns and Pa- ci/le liailirnti vs. Interstate Commerce Commis- sion, ir.2 Xr.S. m- (ISDfi). DISCRIMINATION, Sexsibi.e, or Differ- EXTIAI, Si:siTlvn V. The name ap|>lied to an in- tellectual function of extreme importance — ourca- l)acit.v to pronounce upon the likeness or difTer- enee of sense-presentations. The phrase "must not be taken to denote a facultv of comparison, in the sense of a peculiar conscious process existing alongside of the various contents. It merely ex- presses, in the first instance, the general fnet that we have difTerent experiences and «i-peri- enee them difTerentlv; in other words, it covers the introsjiection (q.v.) of different contents and