r 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 SELECTION OF CASES 
 
 ON 
 
 THE LAW OF CARRIERS. 
 
 BY # 
 
 JOSEPH HENRY BEALE, Jr., 
 
 PROFESSOR OF LAW IN HARVARD UNIVERSITY. 
 
 Part I. 
 
 CAMBRIDGE: 
 
 HARVARD LAW REVIEW PUBLISHING ASSOCIATION. 
 
 1898.
 
 Copyright, 1898, 
 By Joseph Henry Beale, Jr. 
 
 T 
 
 SEiubcrsttg |3ress: 
 John Wilson and Son, Cambridge, U.S.A.
 
 CASES ON THE LAW OF CARRIERS. 
 
 HISTORICAL INTRODUCTION. 
 
 PRIOR OF BRINKBURN v. WILLIAM DE WHELPINGTON. 
 
 Northumberland Iter coram Metingham, J., 1299. 
 
 [Brinkburn Chartulary, 105.] 
 
 Willelmus [de Whelpington] snramonitus fuit ad respondendum 
 Priori de Brinkebnrne de placito quod reddat ei tres cartas, quas ei injuste 
 detinet. Et unde queritur quod cum praedictus Prior tradidisset eidem 
 Willelmo tres cartas . . . apud Brinkeburne custodiendas et eidem 
 Priori liberandas cum ab ipso fuerit requisitus, praedictus Willelmus 
 praedictas tres cartas dicto Priori reddere contradixit, licet saepius 
 super hoc fuerit per ipsum Priorem requisitus, et adhuc reddere contra- 
 dicit, unde dicit quod deterioratus est et ad dampnum habet ad valentiam 
 viginti marcarum. Et inde producit sectam. 
 
 Et W. venit, etc., et bene cognoscit praedictas cartas ei fuisse, sicut 
 praedictus Prior asserit, liberatas eidem Priori liberandas cum illas 
 petierit. Set dicit quod die Sabbati proxima post festum Sancti 
 Johannis Baptistae anno regni Regis praedicti, latrones ignoti ad 
 domum suum apud Whelpington noctanter accesserunt, ac bona et 
 catalla sua siinul cum duabus cartis ibidem inventis ceperunt et 
 asportaverunt, et impressionera sigillorum de duabus cartis abstrax- 
 erunt, et scripta ibidem reliqueruht, quas hie in Curia profert. Et 
 tertiam cartam integram . . . eidem Priori liberavit. 
 
 Et praedictus Prior per Willelmum de Denum, attornatum suum. hoc 
 idem cognoscit, et praedictas duas cartas sic confractas hie in Curia 
 admisit, et bene concedit illas eodem modo quo praedictus W. asserit 
 fuisse per latrones ablatas. 
 
 Ideo praedictus Willelmus quietus, etc. 
 
 Y. B. 8 Ed. II., 275 [1315]. William le Bonion, Clerk, brings his 
 writ of Detinue of Chattels, against one Maude, and counted that he 
 detained from him wrongfully, etc., the said, etc., that is to say, rings, 
 a silver vessel, and other jewels. 
 
 Migham. Sir, we tell you that this same W. bailed us to guard a 
 locked chest without the key, and he carried off the key himself, and 
 
 1 
 
 6710*17
 
 2 PRIOR OF BRINKBURN V. WILLIAM DE WHELPINGTON. 
 
 whether other things were stolen, as he says, we do not know ; and we 
 tell you that thieves came at night and broke into the chamber of this 
 same Maude, and carried off the chest with the chattels and broke 
 it open, and carried off our goods and chattels with it, ready, etc. 
 
 Russell. That he bailed to you the jewels aforesaid outside the 
 chest, and desired you to return them at his will, ready, etc. Et alii 
 qtcod non. 1 
 
 Y. B. 12 & 13 Ed. III. 244 [1339]. Detinue of chattels to the 
 value of 100/. against an Abbot b3 T a man and his wife, on a bailment, 
 made by the father of the wife when she was under age, of chattels to 
 be delivered to his daughter, when she was of full age, at her will ; and 
 they counted that he delivered pots, linen, cloths, and 20/. in a bag 
 sealed up, etc. 
 
 Pole. He demands money, which naturally sounds in an action of 
 debt or account ; judgment of the count. 
 
 Stouford. We did not count of a loan which sounds in debt, nor of 
 a receipt of money for profit, which would give an action of account, 
 but of mone}' delivered in keeping under seal, etc., which could not be 
 changed ; and if your house were burnt, that would be an answer. 
 
 Schardelowe, J. Answer over. 
 
 Pole. We do not detain in manner as he has counted ; ready to 
 defend by our law. 
 
 Stouford. We have counted of the bailment made by another ; 
 wherefore, do you intend this to be your answer? 
 
 Y. B. 22 Lib. Assis. pi. 41 [1348]. I. de B. complains by his writ 
 that G. de F. on a certain day and year at B. upon Humber had under- 
 taken to carry his mare taken on his boat over Humber water safe and 
 sound ; whereas the said G. overloaded his boat with other horses, by 
 reason of which overloading the mare perished, to his wrong and 
 damage, etc. 
 
 Richmond. Judgment of the writ ; for he does not allege any tort 
 in us ; he only proves that he would have an action by a writ by waj' of 
 covenant, or [not?] by way of trespass: wherefore, etc. 
 
 Bankwell, J. It seems that you committed a trespass when you 
 overloaded the boat, whereby his mare perished, etc. ; therefore answer. 
 
 Richmond. Not guilty. 2 
 
 Y. B. 29 Lib. Ass. 163, pi. 28 [1355]. Suit was brought in the 
 Exchequer by the King's debtor, etc., for a cup which was bailed b}' him 
 to the defendant, etc. And the defendant said, that the plaintiff bailed 
 
 1 Certain obvious errors in this case have been corrected from the version given 
 in Fitzherbert's Abridgment, Detinue, pi. 59. That version ends as follows : "Russell. 
 Not carried away by thieves, ready, etc. Etalii e contra. And to this issue the party 
 was driven, etc." — Ed. 
 
 a See 41 Ed. III. 3, pi. 8. — Ed.
 
 THE INNKEEPERS CASE. 6 
 
 the cup to him in pledge for certain money, etc., and he put it with his 
 own goods, etc., which were stolen from him. To which the plaintiff 
 was driven to answer : who said, that he tendered the money before the 
 theft, and the defendant refused it, judgment, etc. And he tendered 
 averment that he did not tender before taking ; and the other was 
 driven by award to aver the tender before the theft, etc. For W. Thorpe, 
 B., said, that if one bails me his goods to keep, and I put them with 
 mine and they are stolen, I shall not be charged, etc. Quod nota. 
 
 Catesby in Y. B. 2 R. III. 14, pi. 39 [1478]. By this action he asks 
 nothing but an account, which clearly disaffirms property, etc. ; for may 
 be that in a writ of account the plaintiff shall recover nothing ; for if 
 the thing delivered was of the value of 20?., if the defendant alleges 
 upon his account that he adventured by land and was percase robbed, 
 or on sea and 'lost, if it be found so, the plaintiff shall recover nothing ; 
 for he demands nothing but an account, and more he shall not have, be 
 it more or less. 
 
 THE INNKEEPER'S CASE. 
 
 Common Pleas, 1410. 
 [Y.B. 11 Hen. IV. lb, pi. 18.] 
 
 A man brought a writ of Trespass against an innkeeper, and declared 
 that by the Common Law each innkeeper is obliged safely to keep the 
 things which are within his inn ; and declared that he was lodged with 
 him at a certain time, and that his horse was stolen while within 
 the inn. 
 
 Skrene. Protesting that we are not a common innkeeper, we say 
 that the plaintiff came to us towards night and prayed to be received 
 into our house ; and we told him that we could not be bound to him, 
 because earby the next morning we had to be before the sheriff, to 
 extend certain lands by the King's writ. And thereupon he prayed us 
 to give him a kev of his chamber, and another of the stable where he 
 should put his horse ; and we gave him those same ke}*s, and went our 
 way that same night. And we pray judgment if he may maintain this 
 action against us, etc. 
 
 Tildesley. Protesting that we do not admit that he gave us such 
 notice of his going away as he has spoken of until after we were lodged 
 with him, and that meanwhile our horse had been stolen from within his 
 inn, we pray judgment, and ask for our damages. Et sic ad judicium. 
 
 Hankford, J., to SJcrene. You have not alleged that } t ou were sum- 
 moned or distrained to come before the sheriff, nor in fact have you 
 alleged that you went to the sheriff and gave attendance upon him by 
 authority of the law ; but you have said only that you gave notice to the 
 plaintiff that you were going : and if you were not there, he may
 
 4 HOKSLOW S CASE. 
 
 have a traverse of it. And though a common innkeeper make promise 
 by his own head to speak with a sheriff or other man. if he suffers 
 one to lodge with him he answers for his goods ; and he is bound to 
 have deputies and servants under him, for well keeping the inn during 
 his absence. 
 
 Skrene. When I alleged such notice given to him as to what I had 
 to do before the sheriff, it is to be taken as true in fact, since it is not 
 traversed by the other party. 
 
 Hill, J. The bailment of the kej's in this case is nothing to the pur- 
 pose in discharging the innkeeper, as was adjudged long before his day 
 (quodfuit concession per Justiciaries) ; but when the defendant gave 
 notice to him that he could not attend to him causa ut supra, and 
 thereupon the plaintiff took lodging at his peril, he discharged the inn- 
 keeper, and took the charge upon himself; wherefore, etc. 
 
 Thirning, C. J. The plaintiff in this case in his declaration has not 
 declared that it was a common inn. Nothing is alleged of record in 
 proof of it, but in the declaration he has declared the common custom 
 as to common inns, and then in the conclusion he has alleged nothing, 
 but that he was lodged with him, so the matter in itself is not sufficient 
 to maintain the action ; for though a man who is not a common inn- 
 keeper lodge me in his inn, he shall not answer for my goods. 
 
 Quod fuit concessuin. JVbta this reason. 
 
 Tremayne. When I declared that I was lodged in his inn, it is in- 
 tended that he is a common innkeeper. 
 
 Thirning, C. J. An action cannot be maintained b} T argument nor 
 by intendment, but b} - sufficient matter included and declared. Where- 
 fore it is better for 3-011 that 3 - our writ be abated for defect of your 
 declaration, and that you pursue a better action. 
 
 Tremayne. He has accepted our declaration as good, wherefore, etc. 
 
 Hankford, J. No matter if he has accepted anything, the court 
 does not allow it. 
 
 Then the record was read, and found as Thirning had said, etc. 
 
 Hankford, J. (ex assensu omnium socioruni). You take nothing 
 by your writ, etc., but you are in rnercy, etc. 
 
 HORSLOWS CASE. 
 
 Common Pleas, 1444. 
 
 [Y. B.22Hen. VI. 21, pi. 38.] 
 
 Writ of trespass on the case was brought against W. Horslow, 
 laborer, because the Common Law of the land is that the innkeepers who 
 keep common inns ought to safeguard the goods of those who are lodged 
 in their inns, so that no damage should happen to them b}' persons un- 
 known ; and the plaintiff alleged how certain of his goods (and alleged
 
 HOIiSLOW S CASE. 5 
 
 what) were taken out of his possession in the defendant's house by 
 persons unknown. 
 
 Prisot. Judgment of the writ ; for the writ is, Gum secundum, legem 
 & cons. Regnl, etc., in which case it appears that the matter aforesaid 
 lies in custom, which shall not be intended the Common Law, etc. 
 
 Newton, C. J. What is custom of the land but the law of the 
 land ? Therefore answer this. 
 
 Markum. In Kent perhaps the writ does not rehearse their cus- 
 toms, sc. cum secundum Legem & consicetudinem, etc., because they 
 have divers customs which do not extend except within said county, 
 but this is a custom and a law throughout all the realm. 
 
 Prisot. Yet judgment on the writ ; for the custom is rehearsed as of 
 common inns, and by the writ and count it is not alleged that the 
 defendant's house in which the goods were taken is a common inn ; where- 
 fore may be it is not a common inn ; and if one be lodged with me, or in 
 the house of a husbandman who is not a common innkeeper, though his 
 goods are taken out of his possession, still he lacks an action. 
 
 Newton, C. J. The exception is good, and will be corrected at 
 another day. 
 
 Markam. We will waive this writ, and take another. 
 
 Proton. This writ is good, and the practice no other : and cited two 
 or three precedents. 
 
 Prisot. All those writs are Pone, etc., such a one, innkeeper, and 
 can be understood no otherwise except that his house is a common inn ; 
 but in the case at bar the defendant is not named innkeeper, but 
 W. Horslow, laborer. 
 
 Proton. The addition should not be given in this action, because 
 process of outlawiy does not lie in said action. 
 
 Newton, C. J. A laborer may hold a common inn, and e contra an 
 innkeeper may have other houses to lodge with his license and good will. 
 
 Prisot. If action be brought against the Warden of the Fleet or 
 the Marshal in the King's Bench because of their office, they should be 
 named in their writ by the name of their office ; so it seems in the case 
 at bar, the defendant should be named innkeeper. 
 
 Newton, C. J. In the case you have put the law is as you say ; but 
 I may have a common inn and yet such a writ brought against me by 
 my own name is good. And in the case at bar if the house was not a 
 common inn you may suggest it and take advantage of it by way of plea. 
 
 Ascue, J. It seems for another reason that the writ is abatable ; 
 for the writ does not mention that the goods were carried into the inn 
 and lodged in it, and carried out of said inn ; but the writ is, C. shil- 
 lings, etc., of the plaintiff in hospicio of the defendant hospitati cepe- 
 runt & asportaverunt, and this word hospitati refers to the person of 
 the plaintiff and not to the hundred shillings ; for then it would be 
 hospitantes vel hospitatos ; and it may be by the writ that the plaintiff 
 might lodge in the house of the defendant and that the goods were in 
 the house of another person and carried away ; wherefore it seems that the
 
 6 THE MARSHAL'S CASE. 
 
 writ should be, ibidem inventos cepit & asportavit. And for this reason 
 tbey were adjourned. And at another day the writ was held good, etc. 
 
 Prisot. You ought not to have an action, for we ourselves delivered 
 to the plaintiff a chamber and a key to it to have and hold in his care 
 to safeguard his goods ; and we say that the plaintiff brought with him 
 certain persons unknown into his chamber, who took the said goods. 
 Judgment if action. 
 
 Markam. That plea amounts to no more than that the goods were 
 not taken in 3-our default. 
 
 Newton, C. J. The plea is good, if he give names in certain to 
 those who took the goods ; for the persons are unknown to him, and 
 for such a taking the law excuses him. 
 
 Wherefore Prisot alleged their names, sc. Tho. T. and W. 
 
 Markam. Said T. & W., whom we carried with us into the chamber 
 did not carry away the goods. 
 
 Newton, C. J. That is a negative pregnant ; one, that they did not 
 cany away the goods ; the other, that the}' did not come into his chamber 
 at his request ; but the plea is good, that the said W. and T. did not 
 cany away said goods ; or else 3'ou may den} T that the said W. and 
 T. came into the said chamber at your request. 
 
 Prisot. To oust ambiguities we say that the goods were not carried 
 away in our default. 
 
 Fulthorpe, J. That is no issue. 
 
 Brown. Such an issue has been taken and entered before this time. 
 
 And afterwards Prisot pleaded the first bar, as above. 
 
 Markam. We did not cany said W. and T. with us into the chamber, 
 ready. JEt alii e contra. 
 
 Markam. Still this is perhaps a jeofail. Suppose I with my good 
 will suffer a stranger to lodge with me in the inn, and in m} T chamber, 
 which stranger robs me, and I do not know him, shall not the innkeeper 
 be charged with it? 
 
 Newton, C. J., and All the Court. No, sir, when he was not lodged 
 in 3-0111- chamber by the innkeeper, but by your own sufferance ; but if 
 he was lodged with you by the innkeeper, then the innkeeper shall be 
 charged. And suppose that your own servant who is with you in the 
 inn robs you, shall the innkeeper be charged ? Certainly not. Therefore 
 the issue is good. 
 
 THE MARSHAL'S CASE. 
 
 Common Pleas, 1455. 
 
 [Y. B. %?>Hen. VI. l,pl. 3.] 
 
 Debt was brought against the marshal of the King's Bench. And 
 the plaintiff counts on the Statute, and that one T. who was condemned 
 to the plaintiff in a certain sum in an Assize of Novel Disseizin sued a
 
 THE MARSHAL S CASE. 7 
 
 writ of Error before the King; and then the judgment was affirmed, 
 and the said T. was put in guard to the Marshal for the sum ; and that 
 he let him go at large, to his wrong and damage. 
 
 Choke. No action lies ; for he says that a great multitude of the 
 King's enemies on such a day and year came to Southwark and the}' 
 then broke open the prison of our Lord the King, and took the pris- 
 oners then therein out of the prison, to wit the said T. and others, and 
 carried them away against the will of the Marshal ; without this, that 
 he let him go at large aliter vel aliquo alio modo. 
 
 Billing and Laicon. To this plea pleaded in manner, etc. 
 
 Choke. If enemies from France or other enemies of the King were 
 here, the Marshal would he discharged ; as if the} 7 had burned a house 
 of a tenant for life, he should be discharged of waste ; or otherwise if 
 the house were burned by a sudden tempest, then he would be discharged; 
 so here. 
 
 Danby, J. In your case of the King's enemies and of the sudden 
 tempest it is right ; for then there was no remedy against any one ; but 
 it is otherwise where subjects of the King do it ; for there you may 
 have action against them. 
 
 Choke. Sir, the Captain is dead, and all the others are unknown. 
 
 Prisot, C. J. If they were subjects of the King, they could not be 
 called enemies of the King, but traitors ; for enemies are those who are 
 out of his allegiance ; but if the}- were alien enemies it would be a good 
 plea without any doubt. But if there were twelve or twenty subjects 
 of the King, and unknown, and one night they broke open the prison and 
 took them out, etc., in that case the Marshal shall be charged for his 
 negligent guard ; so here. But if it were b} r a sudden accident with 
 fire, and the prison were burned, and they escaped, perhaps it is 
 otherwise. 
 
 Choke. If a stranger comes to my house, and by his folly burns it, 
 so that other houses of my neighbor are burned, I shall not be charged 
 with burning my neighbor's house. And, sir, if a subject of the King 
 joins with enemies of the King like that, and then they come here and 
 do such a thing, it shall be taken as a thing done by the King's 
 enemy. 
 
 Prisot, C. J. In your case he shall not be taken prisoner here, and 
 [allowed] to make ransom as an enemy may ; but he shall be taken as 
 traitor to the King. 
 
 Choke. Then we say that there were 4,000 Scots and other enemies 
 of the King with the other traitors, etc. 
 
 Danby, J. Then you ought to allege the matter more specially, and 
 some of their names. Et adjoumatur. 
 
 Broke's Abridgment, Detinue, 27 [1469]. Account. Jenney. If 
 I bail goods to } t ou and you are robbed of them, that shall excuse you. 
 Danby, C. J. If he receives them to keep as his own goods, then it is 
 a good excuse ; and otherwise not.
 
 8 THE SHEPHEED'S CASE. 
 
 THE SHEPHERD'S CASE. 
 King's Bench, 1487. 
 [Y. B.I Hen. VII. 11, pi. 9.] 
 
 The case was such. A man had a hundred lambs to keep, and negli- 
 gently through his default they were destroyed bj* his sufferance. 
 
 Read. It seems that the action does not lie ; for action on the Case 
 does not lie for a nonfeasance, for the party shall have a writ of Cov- 
 enant for it. For if one has cloths to keep and they are motheaten or 
 rotted, no action on the Case lies, but action of Detinue. 
 
 Wood. It seems to me that the action well lies ; for suppose one 
 takes upon himself to carry glass or pots, and negligently breaks them, 
 I shall have action on my Case, etc. 
 
 Keble said that nonfeasance shall not give rise to action on the Case ; 
 for before the Statute of Laborers if a servant who was hired would 
 not do service to his master no action la}' for his nonfeasance, etc. 
 
 And it was argued, that if any act be done b}- the party, then action 
 will lie well enough. As if I bail a chest with obligations, and he 
 breaks into it, or bail a horse to ride ten leagues and he rides twent}', 
 action on the case lies ; or in this case if the party had driven the 
 lambs into the water action on the case would lie. 
 
 Townsend, J. When the party undertook to keep the lambs, and 
 afterwards allowed them to be destroyed by his default, since he had 
 taken them and executed his bargain, and had them in his custody, and 
 then did not attend to them, action lies. For here is his act, sc. his 
 agreement with the undertaking, and this afterwards is broken on his 
 part, and this shall give rise to the action. And suppose a horse be 
 bailed to a man to keep, and afterwards he does not give him suste- 
 nance, whereby he dies, action on the case lies. Or if a carrier takes my 
 goods to carry, and afterwards he loses or breaks them, action lies to 
 make him answer for it, because he has not executed his bargain, and 
 has taken upon him to do the thing. But if a covenant were made with 
 me to keep my horse or to carry my goods, and it was not done, now 
 action of Covenant lies, and no other action ; for in those cases he never 
 executed his promise. 
 
 Y. B. 10 Hen. VII. 26, pi. 3 [1495]. Keble {arguendo). I bail 
 deeds and evidences to a man to guard generally. Now if his own 
 o-oods and the evidences are stolen, he shall be excused towards the 
 party, as I understand, for this keeping is chargeable to him to all in- 
 tents as reason may expound, as I shall keep my own goods, etc. . . . 
 
 Fineux, J. To the contrary, and denied the case of bailment of 
 goods, and said that the bailee should be charged as he understood, 
 though his own goods were stolen. 
 
 Fisher. To the same intent ; and said as an innkeeper has the keep- 
 ing of the goods ; he shall be charged notwithstanding they are stolen, 
 and he has no remedy over ; so here.
 
 ANONYMOUS. 9 
 
 Doctor and Student, c. 38 [1518]. It is commonly bolden in the 
 laws of England, if a common carrier go b}* the ways that be danger- 
 ous for robbing, or drive by night, or in other inconvenient time, and 
 be robbed ; or if he overcharge a horse whereby he falleth into the 
 water, or otherwise, so that the stuff is hurt or impaired ; that he 
 shall stand eharged for his misdemeanor : and if he would percase re- 
 fuse to carry it, unless promise were made unto him that he shall not 
 be charged for no misdemeanor that should be in him, the promise were 
 void, for it were against reason and against good manners, and so it is 
 in all other cases like. 1 
 
 Fitzherbert, Natura Brevium, 94 d [1534]. If a smith prick my 
 horse with a nail, etc., I shall have my Action on the Case against him, 
 without any warranty by the smith to do it well. . . . For it is the duty 
 of eveiy artificer to exercise his art rightly and truly as he ought. 
 
 Dale. 8 [1553]. Note by Browne, J., and Portman, J. As clear 
 law ; if a common carrier takes a pack of stuff from a man to carry it to 
 D. and while in a common inn the pack is taken and stolen, the owner 
 for this shall have an action against the innkeeper for the stuff and 
 the carrier shall not ; for they are not the goods of the carrier, nor 
 shall he be charged with them inasmuch as he was by law compellable to 
 carry them ; and it is not like where one takes goods to carrj 7 generally, 
 for if he be robbed, it shall be charged to the carrier for his general 
 taking, to which he was not compellable, and so he shall have action over 
 in respect of his liability. And 2 H. IV. the master shall have action 
 for his goods robbed from his servant in an inn, and although there was 
 not a direct writ for the master in the register in this case, still by the 
 statute the clerks agree to make a writ for him ; and if it pass the 
 Chancery it is well enough. Hales, J., ace. 
 
 ANONYMOUS. 
 Common Pleas, 1558. 
 
 [Moore, 78, pi. 207.] 
 
 One came to an inn, and the innkeeper said to him, " here are per- 
 sons resorting to this house, and I know nothing about their behav- 
 ior ; therefore take the key of such a chamber and put your goods there 
 at your own risk, for I will take no responsibility for them ; " and after-, 
 wards the goods were stolen. The party brought action on the Case' 
 against the innkeeper. 
 
 Wray. The innkeeper is responsible by the law for all the goods 
 which come to his inn ; and by the law he cannot discharge himself by 
 such words. 
 
 1 Noy (*1634), Maxims, *92, repeats this. — Ed.
 
 10 MOSLEY V. FOSSET. 
 
 Harper. We will demur. 
 
 Browne, J. Then we will quickly make an end of it. 
 
 Harper. My client has instructed me in this way, and I have no 
 more to sa}\ 
 
 Browne, J. You have the more to pa}' ; the innkeeper may take 
 issue, that the goods were not stolen by his negligence. 
 
 ANONYMOUS. 
 Queen's Bench, 1589. 
 
 [1 Harvard Manuscript Reports, 3a.'] 
 
 It was held by all the Justices in the Queen's Bench, that if a man bail 
 certain cloths to a tailor to make a robe of them, who does so, and then 
 it is stolen out of his shop, still he shall be accountable for it ; the same 
 is law of a carrier who has anything for his labor. But it is otherwise 
 of him who has nothing for keeping it, but keeps it of his good will. 
 
 WOODLIFE'S CASE. 
 Queen's Bench, 1597. 
 
 [Moore, 462.] 
 
 In account upon merchandise delivered for merchandising, the de- 
 fendant said that he was robbed of this merchandise, and of divers 
 other goods and chattels of his own. 
 
 Popham, C. J. It seems a good plea. 
 
 Gawdy, J., e contra. It is no plea for a carrier, because he is paid 
 for the carriage. 
 
 Popham, J. But it is a good plea for a factor, servant, and the 
 
 like. 1 
 
 MOSLEY v. FOSSET. 
 Queen's Bench, 1598. 
 
 [Moore, 543.] 
 
 Action on the case, and declares that the defendant took from the 
 plaintiff a gelding to agist him for 2s. a week, and the defendant 
 
 i The same case is reported in 1 Rolle's Abridgment, 2, as follows : " If a man 
 deliver goods to a common carrier to carry, and the carrier is robbed of them, still 
 he shall be charged with them, because he had hire for them, and so implicitly took 
 upon him the safe delivery of the goods ; and therefore he shall answer for the value 
 of them if he be robbed." — Ed.
 
 southcote's case. 11 
 
 was to keep him safely and redeliver when he should be asked 
 to do so : and alleges that he so negligently kept him that he was 
 taken by persons unknown. The defendant demurred, and the Jus- 
 tices were divided, two against two: Popham, C. J., and Fenner, J., 
 that the action does not lie without alleging request for redelivery, and 
 also alleging how the horse was taken away, dead, or lost. Gawdy and 
 Clench, JJ., e contra, because the action is founded on the negligence 
 and the special assumpsit to keep safely. But all agree that without 
 such special assumpsit the action does not lie. 
 
 SOUTHCOTE'S CASE. 
 
 Queen's Bench, 1600. 
 
 [4 Coke, 83 &.] 
 
 Southcote brought Detinue against Bennet for certain goods, and 
 declared, that he delivered them to the defendant to keep safe ; the 
 defendant confessed the delivery, and pleaded in bar that after the 
 delivery one J. S. stole them feloniously out of his possession : the plain- 
 tiff replied, that the said J. S. was the defendant's servant retained in his 
 service, and demanded judgment, etc. And thereupon the defendant 
 demurred in law, and judgment was given for the plaintiff: 1 and the 
 reason and cause of their judgment was, because the plaintiff delivered 
 the goods to be safe kept, and the defendant had took it upon him 
 by the acceptance upon such delivery, aud therefore he ought to keep 
 them at his peril, although in such case he should have nothing for his 
 safe keeping. So if A delivers goods to B generally to be kept by 
 him, and B accepts them without having anything for it, if the goods 
 are stole from him, yet he shall be charged in Detinue ; for to be 
 kept and to be kept safe, is all one. But if A accepts goods of B 
 to keep them as he would keep his own proper goods, there, if the 
 goods are stolen, he shall not answer for them : or if goods are 
 pawned or pledged to him for money, and the goods are stolen, he 
 shall not answer for them, for there he doth not undertake to keep 
 them but as he keeps his own ; for he has a propert}- in them and 
 not a custody only, and therefore he shall not be charged as it is 
 adjudged in 29 Ass. 28. But if before the stealing he who pawned 
 them tendered the money, and the other refused, then there is fault 
 in him ; and then the stealing after such tender, as it is there held, 
 shall not discharge him ; so if A delivers to B a chest locked to keep, 
 and he himself carries awa} r the key, in that case if the goods are 
 stolen, B shall not be charged, for A did not trust B with them, nor did 
 B undertake to keep them, as it is adjudged in 8 E. II. Detinue, 59. 
 
 1 Per Gawdy et Clench, JJ., caeteris absentibus : see s. c. Cro. Eliz. 815. — Ed.
 
 12 MORSE V. SLUE. 
 
 So the doubt which was conceived upon sundry differing opinions in 
 our books in 29 Ass. 28. 3 H. VII. 4, 6 H. VII. 12, 10 H. VII. 26 
 of Keble and Fineux, are well reconciled, vide Bract, lib. 2, fol. 62 b. 
 But in accompt it is a good plea before the auditors for the factor, 
 that he was robbed, as appears by the books in 12 E. III. Accompt, 
 111, 41 E. III. 3, and 9 E. IV. 40. For if a factor (although he has 
 wages and salary) does all that which he by his industry can do, he 
 shall be discharged, and he takes nothing upon him, but his duty is as 
 a servant to merchandise the best that he can, and a servant is bound 
 to perform the command of his master : but a ferryman, common 
 innkeeper, or carrier, who takes hire, ought to keep the goods in their 
 custody safely, and shall not be discharged if they are stolen by 
 thieves, vide 22 Ass. 41 Br. Action sur le Case, 78. And the Court 
 held the replication idle and vain, for non refert by whom the defend- 
 ant was robbed, vide 33 H. VI. 31a. b. If traitors break a prison, it 
 shall not discharge the gaoler ; otherwise of the King's enemies of 
 another kingdom ; for in the one case he may have his remedy and 
 recompense, and in the other not. Nota reader, it is good policy for 
 him who takes any goods to keep, to take them in a special manner, 
 scil. to keep them as he keeps his own goods, or to keep them the best 
 he can at the peril of the party ; or if the} - happen to be stolen or 
 purloined, that he shall not answer for them ; for he who accepteth 
 them, ought to take them in such or the like manner, or otherwise 
 he may be charged b} r his general acceptance. So if goods are de- 
 livered to one to be delivered over, it is good policy to provide for 
 himself in such special manner, for doubt of being charged upon his 
 general acceptance, which implies that he takes upon him to do it. 
 
 MORSE v. SLUE. 
 
 King's Bench, 1671-72. 
 
 [2 Keb. 866, 3 Keb. 72, 112, 135 : 1 Vent. 190, 238 : T. Raym. 220 : 2 Lev. 69 : 1 Mod. 85.] 1 
 
 An action upon the case was brought Irv the Plaintiff against the 
 Defendant ; and he declared, That whereas, according to the law and 
 custom of England, masters and governors of ships which go from 
 London beyond sea and take upon them to carry goods beyond sea, are 
 bound to keep safe by day and night the same goods, without loss or 
 substraction, ita quod pro defectu of them, they may not come to any 
 damage ; and whereas the 15 of May last, the defendant was master of a 
 certain ship called the William and John, then riding at the Port of 
 London, and the plaintiff had caused to be laden on board her three 
 trunks, and therein 400 pair of silk stockings and 174 pounds of silk, 
 
 1 The declaration and the special verdict are taken from the report by Ventris ; the 
 rest of the case is as reported by Keble. — Ed.
 
 MORSE V. SLUE. 13 
 
 by him to be transported for a reasonable reward of freight to be paid, 
 and he then and there did receive thern, and ought to have transported 
 them, etc., but he did so negligently keep them, that in default of suffi- 
 cientcare and custody of him and his servants, 17 May, the same were 
 totally lost out of the said ship. 1 
 
 Upon Not guilt}' pleaded, a special verdict was found, viz. : 
 
 That the ship lay in the River of Thames, in the Port of London, in 
 the Parish of Stepney, in the County of Middlesex, prout, etc. That 
 the goods were delivered by the plaintiff on board the ship, prout, etc., 
 to be transported to Cadiz in Spain. That the goods being on board, 
 there were a sufficient number of men for to look after and attend her, left 
 in her. That in the night came eleven persons on pretence of pressing 
 of seamen for the King's service, and by force seized on these men 
 (which were four or five, found to be sufficient as before) and took the 
 goods. That the master was to have wages from the owners, and the 
 mariners from the master. That she was of the burthen of 150 tons, etc. 
 
 So the question was, upon a trial at bar, whether the master were 
 chargeable upon this matter. 
 
 Holt, for the Plaintiff. The master receives these goods generally to 
 keep, as 4 Co. 83, Southcot's Case ; Co. Lit. 89 ; and only guardian 
 in socage who hath the custody by law, and factor who is servant at the 
 master's dispose, and so cannot take care, are exempt. 
 
 2d. The master is to have a reward for his keeping and therefore 
 the proper person against whom the action should be is he. This is 
 the reason (2 Cro. 188, Jelly and Clerke) of a Carrier, hoj'man, and 
 innkeeper: thus Moore, 876, pi. 1229, and in Hob. 18, Rich and Need- 
 ham's Case. And though the master hath his salary from the owners, 
 yet the contract for freight is made by the master in his own name with 
 the merchant, and the master is to do that which is consequence of it, 
 to keep the goods. And were he a servant (Doctor & Student, 137), 
 if he contract in his own name (Dyer, 230, 2 Cro. 250, Yelv. 137, pi. 
 194) he is the principal debtor. Also in the Civil Law exercitor navis 
 takes no care of freight, therefore this master is but a servant, and the 
 action against him only exercitorial because the owner took all the care 
 to lade and freight wine ; as Plowd. 827. But the exercitor now is per 
 aversionem the master who takes care of all. 
 
 3d. The master of the ship hath a remedy over against the wrong- 
 doers, as Lit. Co. 54, on permissive waste. So gaoler (33 Hen. VI. 1) 
 on traitors breaking prison. Also the master he may have trespass or 
 an appeal of robbery, and on a fresh suit (Keil. 70) he shall have resti- 
 tution, and the damages recovered by the master shall bar the owners ; 
 so Haydon and Smyth, 13 Co. 69. Also the mischief is great if no 
 action lie, by reason of the great trust merchants put in the master, and 
 and therefore he need not prove any particular defaults (as de lege Nau- 
 tica, Plowd. 3, 15, 29, and in Antonius Fogassa, 822), though the 
 
 1 There appears to have heen a second count in case as against a mere bailee, for 
 negligence in not guarding the goods. 2 Keb. 866.— Ed.
 
 14 MORSE V. SLUE. 
 
 injuries happen without the master's default, miles fatale divum 
 accideret, Lex Mercatoria, 103. Also the bills of lading show this, 
 " that the goods well received are to be redelivered, the dangers of the 
 sea only excepted," which cannot be foreseen nor avoided ; and this 
 differs from piracy, which (as Loccenius, 121, and 3 Inst. 112) is a 
 danger at sea or common enemies (and Loccenius de jure wtaritimo, 140, 
 Strecka de mercatura, 448). Also here is a neglect in the master hav- 
 ing no greater guard than four ; which is found to be the usual number, 
 but not by time out of mind, or by custom or prescription. Also the 
 men that robbed were permitted to enter, but it was found they pretended 
 to be press masters. 
 
 Winnington, for the Defendant. 1st. That here is no such neglect 
 as to ground an action upon ; the declaration being on the custom of 
 England, as against innkeeper, carrier, etc. (Register, 105, and F. N. B. 
 94 b), yet in neither is there any precedent against master of the ship 
 nor other, but what is grounded on wilful or legal neglect. And this 
 nonfeasance and want of sufficient numbers cannot be a neglect in law 
 (as 8 Co. 33, Calye's Case, 4, resolved; 22 Hen. VI. 21 and 38; 2 
 Hen. IV. 7b; Dyer, 158 and 266, Spencer's Case ; and Hil. 32 Eliz. 1, 
 Roll. 3 and Moore, 462, pi. 650, Woodlif's Case) ; for he that loseth 
 these goods is not to pay the defendant anything, but to the owners of 
 the ship, whose servant the master is pro hac vice; and in Hob. 17 a 
 reward is expressly averred to be given to the hoyman, and the master's 
 possession is the owners'. Also here is a custom found that four was 
 the usual number, which in verdict is sufficient without saying time out 
 of mind (Lit. Co. 182). Also (Wellwood's Abridgment) the duty of the 
 master of the ship is only to look to the goods, but not to answer for them. 
 
 2d. Supposing a neglect on which the merchant should have remedy, 
 it lyeth not against the master but against the part owners, here being 
 no charter-party found ; whereby if the master be partner he is liable, 
 but else the master is a bare servant, and sueth owners for salary. . . . 
 
 3d. Here is not guilty found as to the point of neglect on which the 
 later part of the declaration is as a special action upon the Case ; but 
 it's left on the common custom, as Carrier, etc. Sed adjoumatur. 
 
 Tuesday, Jan. 28. Wallop, for the Plaintiff. At the common law 
 on the general bailment it 's against the defendant. 2. As a public 
 carrier. And 3. as a master of a ship. As to the first is inferred that 
 de custodia tenetur strictly (4 Co. 83, Southcot's Case ; 1 Inst. 89) ; 
 and the like of a simple depositorius (in Inst., lib. 3, cap. ; so Bract. 
 99, and Grotius, lib. 2, cap. 10, § 13, de Jure Belli) whose office is 
 merely gratuitous. 
 
 2d. As of public profession, as he hath privilege so he hath trust and 
 obligation, which is the reason the Civil Law hold them strictlier to it 
 (Pecchius, 36), as an innkeeper (Ccmpones Nautaeet Tabularii / Hob. 
 18 ; Cro. Jac. 330, Rich v. Kneeland). And that the defendant is but 
 a servant doth not appear by his receiving salary. For 
 
 3d. he is master of a ship, and a judicial officer of universal note 
 (Loccenius, lib. 2, cap. ) ; he hath care of the whole ship, and by
 
 MORSE V. SLUE. 15 
 
 the Laws of Oleron may pawn the ship (as Hob. 2, Bridgman's Case), 
 which is more than an ordinary servant. Also he transacts all without 
 notice of the owners, especially where there is no charter-part}' as here 
 (Pecehius, 126) ; ad magistrum respiciuat contrakentes. That against 
 the owners is dativa actio, not ex contractu unius (see Pecehius, 132) ; 
 the owners are but as fidejussors, and the master is the principal {Lex 
 Mercatoria, 14, and Wellwood, 87, Abridgment of Sea Laws), lie 
 hath his office by public law, not by a private command (2 Hen.V. cap. 0). 
 A sworn officer, and may impose pecuniary or corporal punishments on 
 mariners, as steward of a manor ; the master acts officii praecepto, a 
 procurator, but as delegate the merchant may charge the owners or 
 (1 Inst. 385) the master at election or the owners on insufficiency of 
 the master. Quoad habitum et proprietatem the ship belongs to 
 owners, but quoad exercitium it belongs to the master, as cure is 
 divided between parson and vicar ; and the salary is but as a fee of an 
 officer (2 Inst. 463), though (1 Inst. 233) removable at will. 2. By the 
 law of merchants the defendant ought to be charged. The 51 Rhodian 
 Laws in Morison do include exercitores as well as the master; them 
 actione exercitoria, him actione civili. The master may by his neglect 
 bind himself and the owner to the merchant, but not contrary. The 
 second and third law of Oleron obliges the master to answer for neglects 
 (Bronchurst de reg. juris, 58 ; 1 Cro. 353) of crassa or lata culpa or de 
 culpa levissima, and the having the usual number is not diligentia 
 exactissima (Bronch. 61). 
 
 Molloy, for the Defendant. Freight was by Cape Merchant generally, 
 he that hired a dead vessel : there the owner ran no risk. 2. A Cape 
 Merchant special, which is now usual to take in by tonnage. 3. There 
 was an under-freighter, which is the case in question with bills of lading 
 (Van Luen's Digest). And in both those cases the owners are answer- 
 able. 4. On Cotton, 63, there were exercitors that of themselves 
 undertook. All the first and last sort are obsolete, but the second and 
 third now used. And the master is chosen but as a servant for his 
 skill, and is answerable for his neglects only ; and if he be in no fault 
 he is discharged. And the merchant shall not be in better condition 
 against the master than the owners have for the ship's furniture (9 
 Edw. IV. 40 ; Lane, 68 ; 2 Cro. 266). Also the Statute 32 Hen. VIII. 
 cap. 4, that gives the Admiral concurrent jurisdiction herein, shows the. 
 delivery special in this case, therefore called merchant adventurers, and 
 the master cannot be presumed to keep the merchant's goods safer than 
 his own (2 Bulst. 209; Keil. 77; Doctor & Student, 38). Also the 
 master hath no benefit by this delivery (4 Co. 48 ; Dyer, 239) ; there- 
 fore he that hath the benefit shall answer, which is the owner's (18 
 Hen. VI 25 in 4 Inst. 146 ; Digest, de exercitoria actione, L. 1, § 3 ; 
 Registre, 100; Worrall and Bradshaw's Case, 9 Jac. 1 ). There is elec- 
 
 1 Reported in Harvard MS. Reports, 9 Jac. ; ibid. 2-22 Jac, as follows : "Between 
 Worrall and Bradsliaw it was held, that where goods are delivered to the servant of 
 a carrier to carry them, etc., action of trover does not lie against the carrier, but 
 special action on the case." — Ed.
 
 16 MORSE V. SLUE. 
 
 tion by the marine law on wilful neglect, not else ; also the ship is instead 
 of the owners (1 Roll. 530) and therefore is answerable (2 Rich. III. 2 ; 
 Stat. 54). Taking alters the property spoiled by alien (F. N. B. 114, 
 Regist. 129), for which letters of mart are given. Also piracy (13 Jac. 
 Bellingham's Case) though illegal shall not make the master answerable, 
 but for spoliatio in navi he shall answer (as Grotius Digest, de famosis 
 libellis ; and by the Laws of Oleron, cap. 5 ; Clyrak's Coment. in French, 
 in Lincoln's Inn Library ; Tr. 24 Ed. III. tit. Bristol, no. 45, in Pruyn's 
 Records). The master is not answerable for goods stolen out of the 
 ship moored at anchor in pool where there is a sufficient number of men 
 (Digest. 33 ; 1 Roll. 560, Ferns and Smyth), but only for his own 
 faults. 
 
 2d. This is not like a common hoyman with small vessels [which] 
 are common carriers and so accounted (27 Ed. III. cap. 15) ; but not 
 ships (so Pasch. 13 Ed. IV. 19, and 1 Roll. 536). There is the like 
 difference, Hill. 19 Car. II. in Exchequer in Quo Warranto against the 
 City of London for water bailage ; it was resolved the duty was not 
 due of great ships that come from foreign parts, but only of smaller 
 vessels. And these have remedy against the count}* as other travellers 
 (22 Ass. ; Davis, in the case of the Bank) ; but not the others, being 
 (4 Inst. 147) floating castles, and none can enter into them for their 
 safety, nor can the hundred take notice of their robbeiy (7 Co. 7, San- 
 dal's Case) nor assist with naval provisions. And this will discourage 
 navigation ; and is without precedent or practice, but the master alwaj-s 
 discharged. 
 
 The Court [per Hale, C. J.] agreed the master shall not answer for 
 inevitable damage, nor the ownei*s neither without special undertaking : 
 when it 's vis cut resisti non potest. But for robbeiy the usual number 
 to guide the ship must be increased as the charge increaseth. And the 
 master is not a mere servant ; for freight is the mother of wages, and 
 one lost with the other, therefore this is mone}* paid by the merchant. 
 
 And the Court inclined strongly for the plaintiff. 
 
 Saturday, Feb. 8. 
 
 Per totam Curiam. By the civil law and lex mercatoria, the master 
 is liable so long as he is within the King's protection : And b}* our law, 
 being within the body of the county, wages beginning here. And when 
 he took in the goods he might have cautioned against them, not to take 
 them in till farther time ; as carrier that is not told what is in a box 
 taken in, is liable for money, etc., unless he cautions against money. 
 Also this differs not from a hoyman. For the master is an officer and 
 not an ordinaiy servant, but as a gaoler who is chargeable for escapes, 
 though respondeat superior for his default ; but a turnke}* is but a ser- 
 vant, not liable. Also the owner receives freight in respect of this care, 
 and whether he receives it from them or the merchant is not material. 
 Also though the guard be sufficient for the ship, yet (33 Hen. VI. 1) he 
 must have sufficient guard for the goods ; nor is this excuse of the 
 carrier unless in case of common enemies. 
 
 Judgment for the Plaintiff.
 
 COGGS V. BEENAED. 17 
 
 COGGS v. BERNARD. 
 
 Queen's Bench, 1703. 
 
 [2 Lord Raymond, 909.] 
 
 In an action upon the case the plaintiff declared, quod cum Bernard 
 the defendant, the 10th of November, 13 Will. 3, at, &c, assump- 
 sisset, salvo et secure elevare, Anglice to take up, several hogsheads 
 of brandy then in a certain cellar in D., et salvo et secure deponere, 
 Anglice to lay them down again, in a certain other cellar in Water 
 Lane, the said defendant and his servants and agents tarn negligenter 
 et iinprovide put them down again into the said other cellar, quod per 
 defectum curie ipsius the defendant, his servants and agents, one of 
 the casks was staved, and a great quantity of brandy, viz. so many 
 gallons of brandy, was spilt. After not guilty pleaded, and a verdict 
 for the plaintiff, there was a motion in arrest of judgment, for that it 
 was not alleged in the declaration that the defendant was a common 
 porter, nor averred that he had anything for his pains. And the case 
 being thought to be a case of great consequence, it was this day argued 
 seriatim by the whole court. 
 
 Gould, Justice. I think this is a good declaration. The objection 
 that has been made is, because there is not any consideration laid. 
 But I think it is good either way, and that any man that undertakes to 
 carry goods is liable to an action, be he a common carrier or whatever 
 he is, if through his neglect they are lost or come to any damage ; and 
 if a premium be laid to be given, then it is without question so. The 
 reason of the action is, the particular trust reposed in the defendant, to 
 which he has concurred by his assumption, and in the executing which 
 he has miscarried b}' his neglect. But if a man undertakes to build a 
 house, without anything to be had for his pains, an action will not lie 
 for non-performance, because it is nudum pactum. So is the 3 H. 6, 
 36. So if goods are deposited with a friend, and are stolen from him, 
 no action will lie. 29 Ass. 28. But there will be a difference in that 
 case upon the evidence, how the matter appears ; if they were stolen by 
 reason of a gross neglect in the bailee, the trust will not save him from 
 an action, otherwise if there be no gross neglect. So is Doct. & Stud. 
 129 upon that difference. The same difference is where he comes to 
 goods by finding. Doct. & Stud, nbi supra, Ow. 141. But if a man 
 takes upon him expressly to do such a fact safely and securely, if the 
 thing comes to any damage by his miscarriage, an action will lie against 
 him. If it be only a general bailment, the bailee will not be chargeable 
 without a gross neglect. So is Keilw. 160, 2 II. 7, 11, 22 Ass. 41, 
 1 R. 10. Bro. Action sur le case, 78. Southcote's Case is a hard 
 case indeed, to oblige all men, that take goods to keep, to a special 
 acceptance that they will keep them as safe as the}' would do their own, 
 which is a thing no man living that is not a lawyer could think of; and 
 indeed it appears by the report of that case in Cro. El. 815, that it was 
 adjudged by two judges only, viz. Gawdy and Clench. But in 1 Ventr. 
 
 2
 
 18 COGGS V. BERNARD. 
 
 121 there is a breach assigned upon a bond conditioned to give a true 
 account, that the defendant had not accounted for £30, the defendant 
 showed that he locked the money up in his master's warehouse, and it 
 was stole from thence, and that was held to be a good account. But 
 when a man undertakes specially to do such a thing, it is not hard to 
 charge him for his neglect, because he had the goods committed to his 
 custody upon those terms. 
 
 Powys agreed upon the neglect. 
 
 Powell. The doubt is, because it is not mentioned in the declaration 
 that the defendant had anything for his pains, nor that he was a com- 
 mon porter, which of itself imports a hire, and that he is to be paid for 
 his pains. So that the question is, whether an action will lie against a 
 man for doing the office of a friend, when there is not any particular 
 neglect shown. And I hold an action will lie, as this case is. And in 
 order to make it out, I shall first show that there are great authorities 
 for me, and none against me ; and then, secondly, I shall show the rea- 
 son and gist of this action ; and then, thirdly, I shall consider South- 
 cote's Case. 
 
 1. Those authorities in the Register, 110, a, b, of the pipe of wine, 
 and the cure of the horse, are in point, and there can be no answer given 
 them but that the}' are writs which are framed short. But a writ upon 
 the case must mention everything that is material in the case, and noth- 
 ing is to be added to it in the count but the time and such other cir- 
 cumstances. But even that objection is answered by Rast. Entr. 13, e., 
 where there is a declaration so general. The year books are full in 
 this point. 43 Ed. 3, 33, a., there is no particular act showed. There, 
 indeed, the weight is laid more upon the neglect than the contract. 
 But in 48 Ed. 3, 6, and 19 H. 6, 49, there the action is held to lie 
 upon the undertaking, and that without that it would not lie; and 
 therefore the undertaking is held to be the matter traversable, and a 
 writ is quashed for want of laying a place of the undertaking. 2 H. 7, 
 11, 7 H. 4, 14, these cases are all in point, and the action adjudged to 
 lie upon the undertaking. 
 
 2. Now, to give the reason of these cases, the gist of these actions 
 is the undertaking. The party's special assumpsit and undertaking 
 obliges him so to do the thing, that the bailor come to no damage by 
 his neglect. And the bailee in this case shall answer accidents, as if 
 the goods are stolen ; but not such accidents and casualties as happen 
 by the act of God, as fire, tempest, &c. So is it 1 Jones, 179, Palm. 
 548. For the bailee is not bound upon any undertaking against the act 
 of God. Justice Jones in that case puts the case of the 22 Ass., where 
 the ferryman overladed the boat. That is no authority, I confess, in 
 that case, for the action there is founded upon the ferryman's act, viz. 
 the overlading the boat. But it would not have lain, says he, without 
 that act ; because the ferryman, notwithstanding his undertaking, was 
 not bound to answer for storms. But that act would charge him with- 
 out any undertaking, because it was his own wrong to overlade the boat. 
 But bailees are chargeable in case of other accidents, because they have
 
 COGGS V. BERNARD. 19 
 
 a remedy against the wrong doers : as in case the goods are stolen from 
 him, an appeal of robbery will lie, wherein he may recover the goods, 
 which cannot be had against enemies, in case they are plundered by 
 them ; and therefore in that case he shall not be answerable. But it 
 is objected, that here is no consideration to ground the action upon. 
 But as to this, the difference is between being obliged to do the thing, 
 and answering for things which he has taken into his custody upon such 
 an undertaking. An action, indeed, will not lie for not doing the thing, 
 for want of a sufficient consideration ; but yet if the bailee will take the 
 goods into his custody, he shall be answerable for them ; for the taking 
 the goods into his custody is his own act. And this action is founded 
 upon the warrant}', upon which I have been contented to trust you with 
 the goods, which without such a warranty I would not have done. And 
 a man ma}* warrant a thing without an}' consideration. And therefore, 
 when I have reposed a trust in you, upon your undertaking, if I suffer 
 when I have so relied upon you, I shall have my action. Like the case 
 of the Countess of Salop. An action will not lie against a tenant at 
 will generally, if the house be burnt down. But if the action had been 
 founded upon a special undertaking, as that in consideration the lessor 
 would let him live in the house, he promised to deliver up the house 
 to him again in as good repair as it was then, the action would have 
 lain upon that special undertaking. But there the action was laid 
 generally. 
 
 3. Southcote's Case is a strong authority, and the reason of it comes 
 home to this, because the general bailment is there taken to be an 
 undertaking to deliver the goods at all events, and so the judgment is 
 founded upon the undertaking. But I cannot think that a general 
 bailment is an undertaking to keep the goods safely at all events. 
 That is hard. Coke reports the case upon that reason, but makes a 
 difference, where a man undertakes specially to keep goods as he will 
 keep his own. Let us consider the reason of the case. For nothing is 
 law that is not reason. Upon consideration of the authorities there 
 cited, I find no such difference. In 9 Ed. 4, 40, b, there is such an 
 opinion by Danby. The case in 3 H. 7, 4, was of a special bailment, 
 so that that case cannot go very far in the matter. 6 H. 7, 12, there 
 is such an opinion, by the by. And this is all the foundation of 
 Southcote's Case. But there are cases there cited which are stronger 
 against it, as 10 H. 7, 26, 29 Ass. 28, the case of a pawn. My lord 
 Coke would distinguish the case of a pawn from a bailment, because 
 the pawnee has a special property in the pawn ; but that will make no 
 difference, because he has a special property in the thing bailed to him 
 to keep. 8 Ed. 2, Fitzh. Detinue, 59, the case of goods bailed to a man, 
 locked up in a chest, and stolen ; and for the reason of that case, sure it 
 would be hard that a man that takes goods into his custody to keep for 
 a friend, purely out of kindness to his friend, should be chargeable at all 
 events. But then it is answered to that, that the bailee might take them 
 specially. There are many lawyers don't know that difference, or how- 
 ever it may be with them, half mankind never heard of it. So for these
 
 20 COGGS V. BEKNAED. 
 
 reasons, I think a general bailment is not, nor cannot be taken to be, a 
 special undertaking to keep the goods bailed safely against all events. 
 But if a man does undertake specially to keep goods safely, that is a 
 warranty, and will oblige the bailee to keep them safely against perils, 
 where he has his remedy over, but not against such where he has no 
 remedy over. 
 
 Holt, Chief Justice. The case is shortly this. This defendant under- 
 takes to remove goods from one cellar to another, and there lay them 
 down safely, and he managed them so negligently, that for want of care 
 in him some of the goods were spoiled. Upon not guilty pleaded, there 
 has been a verdict for the plaintiff, and that upon full evidence, the 
 cause being tried before me at Guildhall. There has been a motion in ! 
 arrest of judgment, that the declaration is insufficient, because the de- 
 fendant is neither laid to be a common porter, nor that he is to have 
 any reward for his labor. So that the defendant is not chargeable by 
 his trade, and a private person cannot be charged in an action without 
 a reward. 
 
 I have had a great consideration of this case, and because some of 
 the books make the action lie upon the reward, and some upon the 
 promise, at first I made a great question, whether this declaration was 
 good. But upon consideration, as this declaration is, I think the action 
 will well lie. In order to show the grounds upon which a man shall be 
 charged with goods put into his custody, 1 must show the several sorts 
 of bailments. And there are six sorts of bailments. The first sort of 
 bailment is, a bare naked bailment of goods, delivered by one man to 
 another to keep for the use of the bailor ; and this I call a deposition, 
 and it is that sort of bailment which is mentioned in Southcote's Case. 
 The second sort is, when goods or chattels that are useful are lent to a 
 friend gratis, to be used by him ; and this is called commodatwm, be- 
 cause the thing is to be restored in specie. The third sort is, when 
 goods are left with the bailee to be used by him for hire ; this is called 
 locatio et conductio, and the lender is called locator, and the borrower 
 conductor. The fourth sort is, when goods or chattels are delivered to 
 another as a pawn, to be a security to him for mone} - borrowed of him 
 by the bailor ; and this is called in Latin vadium, and in English a 
 pawn or a pledge. The fifth sort is, when goods or chattels are deliv- 
 ered to be carried, or something is to be done about them for a reward 
 to be paid by the person who delivers them to the bailee, who is to do 
 the thing about them. The sixth sort is, when there is a delivery of 
 goods or chattels to somebody, who is to carry them, or do something 
 about them gratis, without any reward for such his w r ork or caniape, 
 which is this present case. I mention these things, not so much that 
 they are all of them so necessary in order to maintain the proposition 
 which is to be proved, as to clear the reason of the obligation which 
 is upon persons in cases of trust. 
 
 As to the first sort, where a man takes goods in his custody to keep 
 for the use of the bailor, I shall consider for what things such a bailee 
 is answerable. He is not answerable if they are stole without any fault
 
 COGGS V. BERNARD. 21 
 
 in him, neither will a common neglect make him chargeable, but he 
 must be guilty of some gross neglect. There is, I confess, a great 
 authority against me, where it is held that a general delivery will 
 chaige the bailee to answer for the goods if they are stolen, unless the 
 goods are specially accepted, to keep them only as you will keep your 
 own. But my lord Coke has improved the case in his report of it, for 
 he will have it that there is no difference between a special acceptance 
 to keep safeby, and an acceptance generally to keep. But there is no 
 reason nor justice in such a case of a general bailment, and where the 
 bailee is not to have any reward, but keeps the goods merely for the 
 use of the bailor, to charge him without some default in him. For if he 
 keeps the goods in such a case with an ordinary care, he has performed 
 the trust reposed in him. But according to this doctrine the bailee 
 must answer for the wrongs of other people, which he is not, nor cannot 
 be, sufficiently armed against. If the law be so, there must be some 
 just and honest reason for it, or else some universal settled rule of law, 
 upon which it is grounded ; and therefore it is incumbent upon them 
 that advance this doctrine, to show an undisturbed rule and practice of 
 the law according to this position. But to show that the tenor of the 
 law was always otherwise, I shall give a history of the authorities in 
 the books in this matter, and by them show that there never was any 
 such resolution given before Southcote's Case. The 29 Ass. 28 is the 
 first case in the books upon that learning, and there the opinion is, that 
 the bailee is not chargeable if the goods are stole. As for 8 Edw. 2, 
 Fitz. Detinue, 59, where goods were locked in a chest and left with the 
 bailee, and the owner took away the key, and the goods were stolen, 
 and it was held that the bailee should not answer for the goods. That 
 case, they say, differs, because the bailor did not trust the bailee with 
 them. But I cannot see the reason of that difference, nor why the 
 bailee should not be charged with goods in a chest, as well as with 
 goods out of a chest. For the bailee has as little power over them 
 when they are out of a chest, as to any benefit he might have by them, 
 as when the} - are in a chest ; and he has as great power to defend them 
 in one case as in the other. The case of 9 Edw. 4, 40, b, was but a 
 debate at bar. For Danby was but a counsel then, though he had 
 been Chief Justice in the beginning of Ed. 4, yet he was removed, and 
 restored again upon the restitution of Hen. 6, as appears by Dugdale's 
 Chronica Series. So that what he said cannot be taken to be any 
 authorit}', for he spoke only for his client ; and Genney for his client 
 said the contrary. The case in 3 Hen. 7, 4, is but a sudden opinion, 
 and that but by half the court ; and }'et that is the only ground for this 
 opinion of my lord Coke, which besides he has improved. But the 
 practice has been always at Guildhall to disallow that to be a sufficient 
 evidence to charge the bailee. And it was practised so before my time, 
 all Chief Justice Pemberton's time, and ever since, against the opinion 
 of that case. When I read Southcote's Case heretofore, I was not so 
 discerning as my brother Powrs tells us he was, to disallow that case 
 at first, and came not to be of this opinion till I had well considered
 
 22 COGGS V. BERNARD. 
 
 and digested that matter. Though I must confess reason is strong 
 against the case to charge a man for doing such a friendly act for his 
 friend, but so far is the law from being so unreasonable, that such a 
 bailee is the least chargeable for neglect of an}\ For if he keeps the 
 goods bailed to him but as he keeps his own, though he keeps his own 
 but negligently, yet he is not chargeable for them, for the keeping them 
 as he keeps his own is an argument of his honesty. A fortiori, he shall 
 not be charged where they are stolen without any neglect in him. Agree- 
 able to this is Bracton, lib. 3, c. 2, 99, b, J. S., apud quem res depo- 
 nitur, re obligatur, et de ea re, quani accepit, restituenda tenetur, et 
 etiam ad id, si quid in re deposita dolo commiserit ; culpoe autem nomine 
 non tenetur, scilicet desidise vel neglige n tire, quia qui negligenti amieo 
 rem custodiendam tradit, sibi ipsi et propria fatuitati hoc debet impu- 
 tare. As suppose the bailee is an idle, careless, drunken fellow, and 
 comes home drunk, and leaves all his doors open, and by reason thereof 
 the goods happen to be stolen with his own ; yet he shall not be charged, 
 because it is the bailor's own folly to trust such an idle fellow. So that 
 this sort of bailee is the least responsible for neglects, and under the 
 least obligation of an}- one, being bound to no other care of the bailed 
 goods than he takes of his own. This Bracton I have cited is, I confess, 
 an old author, but in this his doctrine is agreeable to reason, and to 
 what the law is in other countries. The civil law is so, as you have it 
 in Justinian's Inst. lib. 3, tit. 15. There the law goes farther, for there 
 it is said, Ex eo solo tenetur, si quid dolo commiserit : culpa? autem 
 nomine, id est, desidiae ac negligentiae, non tenetur. Itaque securus 
 est qui parum diligenter custoditam rem furto amiserit, quia qui negli- 
 genti amico rem custodiendam tradit, non ei, sed suae facilitati id im- 
 putare debet. So that a bailee is not chargeable without an apparent 
 gross neglect. And if there is such a gross neglect, it is looked upon 
 as an evidence of fraud. Nay, suppose the bailee undertakes safely and 
 securely to keep the goods, in express words, yet even that won't charge 
 him with all sorts of neglects. For if such a promise were put into 
 writing, it would not charge so far, even then. Hob. 34, a covenant, 
 that the covenantee shall have, occupy, and enjoy certain lands, does 
 not bind against the acts of wrong doers. 3 Cro. 214, ace. 2 Cro. 425, 
 ace. upon a promise for quiet enjoyment. And if a promise will not 
 charge a man against wrong doers, when put in writing, it is hard 
 it should do more so when spoken. Doct. & Stud. 130 is in point, 
 that though a bailee do promise to redeliver goods safely, yet if he 
 have nothing for the keeping of them, he will not be answerable for 
 the acts of a wrong doer. So that there is neither sufficient reason nor 
 authority to support the opinion in Southcote's Case ; if the bailee be 
 guilty of gross negligence, he will be chargeable, but not for airy ordi- 
 nary neglect. As to the second sort of bailment, viz. commodatum or 
 lending gratis, the borrower is bound to the strictest care and diligence, 
 to keep the goods so as to restore them back again to the lender, be- 
 cause the bailee has a benefit b_y the use of them, so as if the bailee be 
 guilty of the least neglect, he will be answerable ; as if a man should
 
 COGGS V. BERNARD. 23 
 
 lend another a horse, to go westward, or for a month ; if the bailee go 
 northward, or keep the horse above a month, if any accident happen to 
 the horse in the northern journey, or after the expiration of the month, 
 the bailee will be chargeable ; because he has made use of the horse 
 contrary to the trust he was lent to him under, and it may be if the 
 horse had been used no otherwise than he was lent, that accident would 
 not have befallen him. This is mentioned in Bracton, ubi supra; his 
 words are, Is autem cui res aliqua utenda datur, re obligatur, quae com. 
 modata est, sed magna differentia est inter mutuum et commodatum ; 
 quia is qui rem mutuam accepit, ad ipsam restituendam tenetur, vel ejus 
 pretium, si forte incendio, ruina, naufragio, aut latronum vel hostium in- 
 cursu, consuinpta fuerit, vel deperdita, subtracta vel ablata. Et qui rem 
 utendam accepit, non sufflcit ad rei custodiam, quod talem diligentiam ad- 
 hibeat, qualem suis rebus propriis adhibere solet, si alius earn diligentius 
 potuit custodire ; ad vim autem majorem, vel casus fortuitos non tenetur 
 quis, nisi culpa sua intervenerit. Ut si rem sibi commodatam domi, se- 
 cuni detulerit cum peregre profectus fuerit, et illam incursu hostium vel 
 praedonum, vel naufragio amiserit non est dubium quin ad rei restitu- 
 tionem teneatur. I cite this author, though I confess he is an old one, 
 because his opinion is reasonable, and very much to my present purpose, 
 and there is no authority in the law to the contrary. But if the bailee 
 put this horse in his stable, and he were stolen from thence, the bailee 
 shall not be answerable for him. But if he or his servant leave the 
 house or stable doors open, and the thieves take the opportunity of that, 
 and steal the horse, he will be chargeable ; because the neglect gave the 
 thieves the occasion to steal the horse. Bracton says, the bailee must 
 use the utmost care, but yet he shall not be chargeable, where there is 
 such a force as he cannot resist. 
 
 As to the third sort of bailment, scilicet locatio or lending for hire, 
 in this case the bailee is also bound to take the utmost care, and to 
 return the goods when the time of the hiring is expired. And here 
 again I must recur to my old author, fol. 62, b. Qui pro usu vestimen- 
 torum auri vel argenti, vel alterius ornamenti, vel jumenti, mercedem 
 dederit vel promiserit, talis ab eo desideratur custodia, qualem diligen- 
 tissimus paterfamilias suis rebus adliibet, quam si praestiterit, et rem 
 aliquo casu amiserit, ad rem restituendam non tenebitur. Nee sufflcit 
 aliquem talem diligentiam adhibere, qualem suis rebus propriis adhiberet, 
 nisi talem adhibuerit, de qua superius dictum est. From whence it 
 appears that if goods are let out for a reward, the hirer is bound to 
 the utmost diligence, such as the most diligent father of a family uses ; 
 and if he uses that, he shall be discharged. But every man, how dili- 
 gent soever he be, being liable to the accident of robbers, though a 
 diligent man is not so liable as a careless man, the bailee shall not 
 be answerable in this case, if the goods are stolen. 
 
 As to the fourth sort of bailment, viz. vadium, or a pawn, in this I 
 shall consider two things ; first, what property the pawnee has in the 
 pawn or pledge, and seeondl}' for what neglects he shall make satisfac- 
 tion. As to the first, he has a special property, for the pawn is a
 
 24 COGGS V. BERNARD. 
 
 securing to the pawnee that he shall be repaid his debt, and to compel 
 the pawnor to pa}- him. But if the pawn be such as it will be the worse 
 for using, the pawnee cannot use it, as clothes, &c. ; but if it be such 
 as will be never the worse, as if jewels for the purpose were pawned to 
 a lady, she might use them. But then she must do it at her peril, for 
 whereas if she keeps them locked up in her cabinet, if her cabinet should 
 be broke open and the jewels taken from thence, she would be excused ; 
 if she wears them abroad, and is there robbed of them, she will be an- 
 swerable. And the reason is, because the pawn is in the nature of a 
 deposit, and as such is not liable to be used. And to this effect is 
 Ovv. 123. But if the pawn be of such a nature, as the pawnee is at 
 an}- charge about the thing pawned, to maintain it, as a horse, cow, 
 &c, then the pawnee may use the horse in a reasonable manner, or 
 milk the cow, &c, in recompense for the meat. As to the second 
 point, Bracton, 99, b, gives you the answer. Creditor, qui pignus 
 accepit, re obligatur, et ad illam restituendam tenetur ; et cum hujus- 
 modi res in pignus data sit utriusque gratia, scilicet debitoris, quo magis 
 ei pecunia crederetur, et creditoris quo magis ei in tuto sit creditum, 
 sufficit ad ejus rei custodiam diligentiam exactam adhibere, quam si 
 praestiterit, et rem casu amiserit, securus esse possit, nee impedietur 
 creditum petere. In effect, if a creditor takes a pawn, he is bound to 
 restore it upon the payment of the debt ; but yet it is sufficient, if the 
 pawnee use true diligence, and he will be indemnified in so doing, and 
 notwithstanding the loss, yet he shall resort to the pawnor for his debt. 
 Agreeable to this is 29 Ass. 28, and Southcote's Case is. But indeed 
 the reason given in Southcote's Case is, because the pawnee has a special 
 property in the pawn. But that is not the reason of the case ; and 
 there is another reason given for it in the book of Assize, which is in- 
 deed the true reason of all these cases, that the law requires nothing 
 extraordinary of the pawnee, but only that he shall use an ordinary care 
 for restoring the goods. But indeed, if the money for which the goods 
 were pawned be tendered to the pawnee before the}- are lost, then the 
 pawnee shall be answerable for them ; because the pawnee, by detain- 
 ing them after the tender of the money, is a wrong doer, and it is a 
 wrongful detainer of the goods, and the special property of the pawnee 
 is determined. And a man that keeps goods by wrong must be answer- 
 able for them at all events, for the detaining of them by him is the rea- 
 son of the loss. Upon the same difference as the law is in relation to 
 pawns, it will be found to stand in relation to goods found. 
 
 As to the fifth sort of bailment, viz. a delivery to carry or otherwise 
 manage, for a reward to be paid to the bailee, those cases are of two 
 sorts ; either a delivery to one that exercises a public employment, or a 
 delivery to a private person. First, if it be to a person of the first sort, 
 and he is to have a reward, he is bound to answer for the goods at all 
 events. And this is the case of the common carrier, common hoyman, 
 master of a ship, &c, which case of a master of a ship was first ad- 
 judged 26 Car. 2, in the case of Mors v. Slew. Raym. 220. 1 Vent. 
 190, 238. The law charges this person, thus intrusted to carry goods,
 
 COGGS V. BERNARD. 25 
 
 against all events but acts of God, and of the enemies of the king. For 
 tliough the force be never so great, as if an irresistible multitude of 
 people should rob him, nevertheless he is chargeable. And this is a 
 politic establishment, contrived by the policy of the law for the safety 
 of all persons, the necessity of whose affairs oblige them to trust these 
 sorts of persons, that they maj- be safe in their ways of dealing ; for else 
 these carriers might have an opportunity of undoing all persons that 
 had any dealings with them, by combining with thieves, &c, and yet 
 doing it in such a clandestine manner as would not be possible to be 
 discovered. And this is the reason the law is founded upon in that 
 point. The second sort are bailies, factors, and such like. And though 
 a bailie is to have a reward for his management, yet he is only to do 
 the best he can. And if he be robbed, &c, it is a good account. And 
 the reason of his being a servant is not the thing ; for he is at a dis- 
 tance from his master, and acts at discretion, receiving rents and selling 
 coin, &c. And yet if he receives his master's money, and keeps it locked 
 up with a reasonable care, he shall not be answerable for it, though it 
 be stolen. But yet this servant is not a domestic servant, nor under his 
 master's immediate care. But the true reason of the case is, it would 
 be unreasonable to charge him with a trust, farther than the nature of 
 the thing puts it in his power to perform it. But it is allowed in the 
 other cases, by reason of the necessity of the thing. The same law of 
 a factor. 
 
 As to the sixth sort of bailment, it is to be taken, that the bailee is 
 to have no reward for his pains, but yet that by his ill management 
 the goods are spoiled. Secondly, it is to be understood that there was 
 a neglect in the management. But thirdly, if it had appeared that the 
 mischief happened by any person that met the cart in the way, the bailee 
 had not been chargeable. As if a drunken man had come by in the 
 streets and had pierced the cask of brandy ; in this case the defendant 
 had not been answerable for it, because he was to have nothing for his 
 pains. Then, the bailee having undertaken to manage the goods, and 
 having managed them ill, and so by his neglect a damage has happened 
 to the bailor, which is the case in question, what will you call this? In 
 Bracton, lib. 3, 100, it is called mandatum. It is an obligation which 
 arises ex mandate It is what we call in English an acting by commis- 
 sion. And if a man acts by commission for another gratis, and in the 
 executing his commission behaves himself negligently, he is answerable. 
 Vinnius, in his commentaries upon Justinian, lib. 3, tit. 27, 684, de- 
 fines mandatum to be contractus quo aliquid gratuito gerenduin com- 
 mittitur et accipitur. This undertaking obliges the undertaker to a 
 diligent management. Bracton, ubi supra, says, contrahitur etiam 
 obligatio non solum scripto et verbis, sed et consensu, sicut in con- 
 tractibus bonoe fidei ; ut in emptionibus, venditionibus, locationibus, 
 conductionibus, societatibus, et mandatis. I don't find this word in any 
 other author of our law, besides in this place in Bracton, which is a 
 full authority, if it be not thought too old. But it is supported by 
 good reason and authority.
 
 26 COGGS V. BERNARD. 
 
 The reasons are, first, because in such a case a neglect is a deceit to 
 the bailor. For when he intrusts the bailee upon his undertaking to be 
 careful, he has put a fraud upon the plaintiff by being negligent, his pre- 
 tence of care being the persuasion that induced the plaintiff to trust him. 
 And a breach of a trust undertaken voluntarily will be a good ground 
 for an action. 1 Roll. Abr. 10. 2 Hen. 7, 11, a strong case to this 
 matter. There the case was an action against a man, who had under- 
 taken to keep an hundred sheep, for letting them be drowned by his 
 default. And there the reason of the judgment is given, because when 
 the part}' has taken upon him to keep the sheep, and after suffers them 
 to perish in his default ; inasmuch as he has taken and executed his 
 bargain, and has them in his custody, if after he does not look to them, 
 an action lies. For here is his own act, viz. his agreement and prom- 
 ise, and that after broke of his side, that shall give a sufficient cause 
 of action. 
 
 But secondly it is objected, that there is no consideration to ground 
 this promise upon, and therefore the undertaking is but nudum pactum. 
 But to this I answer, that the owner's trusting him with the goods is a 
 sufficient consideration to oblige him to a careful management. Indeed, 
 if the agreement had been executorv, to carrv these brandies from the 
 one place to the other such a da} - , the defendant had not been bound to 
 carry them. But this is a different case, for assumpsit does not only 
 signify a future agreement, but in such a case as this it signifies an 
 actual entry upon the thing, and taking the trust upon himself. And if 
 a man will do that, and miscarries in the performance of his trust, an 
 action will lie against him for that, though nobody could have compelled 
 him to do the thing. The 19 Hen. 6, 49, and the other cases cited by 
 my brothers, show that this is the difference. But in the 11 Hen. 4, 
 33, this difference is clearly put, and that is the only case concerning 
 this matter which has not been cited b}- my brothers. There the action 
 was brought against a carpenter, for that he had undertaken to build 
 the plaintiff a house within such a time, and had not done it, and it 
 was adjudged the action would not lie. But there the question was put 
 to the court, what if he had built the house unskilfully, and it is agreed 
 in that case an action would have lain. There has been a question 
 made, if I deliver goods to A., and in consideration thereof he promise 
 to redeliver them, if an action will lie for not redelivering them ; and 
 in Yelv. 4, judgment was given that the action would lie. But that 
 judgment was afterwards reversed, and according to that reversal, 
 there was judgment afterwards entered for the defendant in the like 
 case. Yelv. 128. But those cases were grumbled at, and the reversal 
 of that judgment in Yelv. 4, was said by the judges to be a bad resolu- 
 tion, and the contrary to that reversal was afterwards most solemnly 
 adjudged in 2 Cro. 667, Tr. 21 Jac. 1, in the king's bench, and that 
 judgment affirmed upon a writ of error. And yet there is no benefit 
 to the defendant, nor no consideration in that case, but the having 
 the money in his possession, and being trusted with it, and yet that 
 was held to be a good consideration. And so a bare being trusted
 
 DALE V. HALL. 27 
 
 with another man's goods, must be taken to be a sufficient considera- 
 tion, if the bailee once enter upon the trust and take the goods into his 
 possession. The declaration in the case of Mors v. Slew was drawn by 
 the greatest drawer in England in that time, and in that declaration, as 
 it was always in all such cases, it was thought most prudent to put in 
 that a reward was to be paid for the carriage. And so it has been usual 
 to put it in the writ, where the suit is by original. I have said thus 
 much in this case, because it is of great consequence that the law 
 should be settled in this point, but I don't know whether I may have 
 settled it, or may not rather have unsettled it. But however that hap- 
 pen, I have stirred these points, which wiser heads in time may settle. 
 And judgment was given for the plaintiff. 1 
 
 DALE v. HALL. 
 King's Bench, 1750. 
 
 [1 Wilson, 281.] 
 
 Action upon the case against a shipmaster or keelman who carries 
 goods for hire from port to port ; the plaintiff does not declare against 
 him as a common carrier upon the custom of the realm, but the decla- 
 ration is that the defendant at the special instance of the plaintiff under- 
 took to cany certain goods consisting of knives and other hardware 
 safe from such a port to such a port, and that in consideration thereof 
 the plaintiff undertook and promised to pay him so much money, that 
 the goods were delivered to the defendant on board his keel, and 
 that the goods were kept so negligently b} - him that they were spoiled, 
 to the plaintiff's damage. 
 
 For the defendant it was insisted at the trial, that as the plaintiff had 
 proved no particular negligence in the defendant, that he might be per- 
 mitted to give in evidence that he had taken all possible care of the 
 goods, that the rats made a leak in the keel or hoy, whereby the goods 
 were spoiled by the water coming in, that they pumped and did all they 
 could to prevent the goods being damaged ; which evidence the Judge 
 permitted to be given, and thereupon left it to the jury, who found a 
 verdict for the defendant. 
 
 Defendant argued that the breach assigned being that b}' the negli- 
 
 1 See Jones, Bailments, 104 [1781]. "A carrier is regularly answerable for neglect, 
 but not regularly for damage occasioned by the attacks of ruffians, any more than for 
 hostile violence or unavoidable misfortune ; but the great maxims of policy and good 
 government make it necessary to except from this rule the case of robbery, lest con- 
 federacies should be formed between carriers and desperate villains, with little or no 
 chance of detection. Although the Act of God, which the ancients too called Qeov 0iav 
 and Vim dioinnm, be an expression which long habit has rendered familiar to us, yet 
 perhaps on that very account it might be more proper, as well as more decent, to sub- 
 stitute in its place inevitable acccident. . . . Law, which is merely a practical science, 
 cannot use terms too popular and perspicuous." — Ed.
 
 28 FORWARD V. PITTARD. 
 
 gence of the defaulter the goods were spoiled, therefore negligence is 
 the very gist of this action, and the defendant has proved there was 
 no nesdigence. 
 
 Lee, C. J. The declaration is, that the defendant undertook for hire 
 to cany and deliver the goods safe, and the breach assigned is that 
 the}- were damaged by negligence ; this is no more than what the law 
 says. Everything is a negligence in a carrier or hoyman that the law 
 does not excuse, and he is answerable for goods the instant he receives 
 them into his custody, and in all events, unless the}' happen to be 
 damaged by the act of God, or the king's enemies; and a promise to 
 carry safely is a promise to keep safely. 
 
 Wright, J., of the same opinion. 
 
 Denison, J. The law is very clear in this case for the plaintiff; the 
 declaration upon the custom of the realm is the same in effect with the 
 present declaration. . . . 
 
 Foster, J., of the same opinion ; and a new trial was granted. 1 
 
 FORWARD v. PITTARD. 
 King's Bench, 1785. 
 [1 Term Reports, 27.] 
 
 This was an action on the case against the defendant as a common 
 carrier, for not safely carrying and delivering the plaintiff's goods. This 
 action was tried at the last summer assizes at Dorchester, before Mr. 
 Baron Perry n, when the jury found a verdict for the plaintiff, subject 
 to the opinion of the Court on the following case : — 
 
 " That the defendant was a common carrier from London to Shafts- 
 bury. That on Thursday the 14th of October, 1784, the plaintiff de- 
 livered to him on Weyhill 12 pockets of hops to be carried by him to 
 Andover, and to be by him forwarded to Shaftsbuiy by his public road 
 waggon, which travels from London through Andover to Shaftsbuiy. 
 That by the course of travelling, such waggon was not to leave Andover 
 till the Saturday evening following. That in the night of the following 
 day after the deliver} 7 of the hops, a fire broke out in a booth at the 
 distance of 100 yards from the booth in which the defendant had de- 
 posited the hops, which burnt for some time with unextinguishable 
 violence, and during that time communicated itself to the said booth in 
 which the defendant had deposited the hops, and entirely consumed 
 them without any actual negligence in the defendant. That the fire 
 was not occasioned by lightning." 
 
 JV. Bond, for the plaintiff. The question is, whether a carrier is 
 
 1 Of this case Sir William Jones says (Bailments, p. 105) : " The true reason of 
 this decision is not mentioned hy the reporter : it was in fact at least ordinary negligence 
 to let a rat do such mischief in the vessel ; and the Roman law has on this principle 
 decided that ' si fullo vestimenta polieuda acceperit eaque mures roserint, ex locato 
 tenetur, quia debuit ab hac re cavere.' " — Ed.
 
 FORWARD V. PITTARD. 29 
 
 liable for the loss of goods occasioned by fire, without any negligence 
 in him or his servants. The general proposition is, that a carrier is 
 liable in all cases, except the loss be occasioned by the act of God, or 
 the King's enemies. (Lord Raymond, 909. 1 Wils. 281.) And this 
 doctrine has lately been recognized by this Court, in the case of the 
 Company of the Trent Navigation v. Wood. (East. 25 Geo. 3. B. R.) 
 The only doubt is on the construction of the words, tl the act of God.'' 
 It is an effect immediately produced without the interposition of any 
 human cause. In Amies and Stephens (1 Stra. 128) these words were 
 held to include the case of a ship being lost by tempest. In the books, 
 under the head of " waste," there is an analogous distinction to be 
 found : if a house fall down by tempest, or be burned by lightning, it 
 is no waste ; but burning by negligence or mischance is waste. (Co. 
 Litt. 53. a. b.) Before the 6th of Anne (6 Ann. c. 31 ; 10 Ann. c. 14) an 
 action lay against any person in whose house a fire accidentally began : 
 this shows that an accidental fire was not in law considered as the act 
 of God ; but the person was punishable for negligence. Suppose a fire 
 happens in a house where there are different lodgers, each of whose lodg- 
 ings is considered as a separate house : if the fire be communicated from 
 one lodging to another, and the Court say the first fire was the act of 
 man, at what time will it be said that it ceases to be the act of man and 
 commences to be the act of God? if it were not the act of man in 
 the first house, it is impossible to draw the line. In the case of the 
 Company of the Trent Navigation and Wood, Lord Mansfield said, 
 " By the act of God is meant a natural, not merely an inevitable, 
 accident." 
 
 If it be contended for the defendant that it is here stated that there 
 was no actual negligence, that will not serve him ; for this action was 
 not founded in negligence. Lord Holt says, there are several species 
 of bailments, and different degrees of liability annexed to each : and a 
 carrier is that kind of bailee, who is answerable though there be no 
 actual negligence. 
 
 Borough, for the defendant, observed that the point in this case was 
 not before the Court in am- of the eases cited. The general question 
 here is, whether a carrier is compellable to make satisfaction for goods 
 delivered to him to carry, and destroyed by mere accident, in a case 
 where negligence is so far from being imputed to him, that it is ex- 
 pressly negatived? This action of assumpsit must be considered as an 
 action founded on what is called the custom of the realm relating to 
 carriers. And from a review of all the cases on this subject it mani- 
 festly appears that a carrier is only liable for damage and loss occasioned 
 by the acts or negligence of himself and servants, that is, for such 
 damage and loss only as human care or foresight can prevent ; and that 
 there is no implied contract between him and his employers to indemnify 
 them against unavoidable accidents. The law with respect to land car- 
 riers and water carriers is the same. Rich v. Kneeland, Cro. Jac. 330. 
 Hob. 17. 5 Burr. 2827. 
 
 In Vid. 27. The declaration, in an action against a waterman for
 
 30 FORWARD V. PITTARD. 
 
 negligently keeping his goods, states the custom relative to carriers 
 thus, " absque substractione, amissione, seu spoliatione, portare tenen- 
 tur, ita quod pro defectu dictorum corainunium portatorum seu ser- 
 vientium suorum, hujusmodi bona et catalla eis sic ut prefertur deliberata, 
 non sint perdita, amissa, seu spoliata." It then states the breach, that 
 the defendant had not delivered them, and " pro defectu bouse custodiae 
 ipsius defendentis et servientium suorum perdita et amissa fuerunt." In 
 Brownl. Red. 12. the breach in a declaration against a carrier is, " de- 
 fendens tarn negligenter et improvide custodivit et carriavit," etc. In 
 Clift. 38, 39. Mod. Intr. 91, 92. and Heme 76. the entries are to the 
 same effect. In Rich and Kneeland (Hob. 17), the custom is stated in 
 a similar way: and in the Exchequer Chamber it was resolved, " that 
 though it was laid as a custom of the realm, yet indeed it is common 
 law." On considering these cases, it is not true that tl the act of God, 
 and of the King's enemies," is an exception from the law. For an ex- 
 ception is always of something comprehended within the rule, and 
 therefore excepted out of it : but the act of God and of the King's en- 
 emies is not within the law as laid down in the books cited. 
 
 All the authorities cited by the counsel for the plaintiff are founded 
 on the dictum in Coggs v. Bernard (2 Lord Raymond, 909), where this 
 doctrine was first laid clown : but Lord Holt did not mean to state the 
 proposition in the sense in which it has been contended he did state it. 
 He did not intend to say that cases falling within the reason of what 
 are vulgarly called " acts of God," should not also be good defences for a 
 carrier. After saving (Lord Raymond. 918), " the law charges the persons, 
 thus intrusted to carry goods, against all events, hut the acts of God and 
 of the enemies of the King," he proceeds thus, " for though the force be 
 never so great, as if an irresistible multitude of people should rob him, 
 nevertheless he is chargeable. And this is a politic establishment, con- 
 trived by the policy of the law for the safety of all persons, the necessity 
 of whose affairs oblige them to trust these sorts of persons, that the} - may 
 be safe in their ways of dealing ; for else these carriers might have an 
 opportunity of undoing all persons who had any dealings with them, by 
 combining with thieves, etc., and vet doing it in such a clandestine 
 manner, as would not be possible to be discovered." As Lord Holt 
 therefore states the responsibility of carriers in case of robbery to take 
 its origin from a ground of policy, he could not mean to say that a car- 
 rier was also liable in cases of accidents, where neither combination or 
 negligence can possibly exist. 
 
 It appears from the Doctor and Student (Dial. 2. c. 38. p. 270) that, 
 at the time that book was written, the carrier was held liable for rob- 
 beries which diligence and foresight might prevent. And what is there 
 said agrees precisely with the custom ; and does not bear hard on 
 the carrier. If he will travel by night, and is robbed, he has no remedy 
 against the hundred ; for then he is not protected by the statute of 
 Winlon, and he ought to be answerable to the employer. If he travel 
 by day and is robbed he has a remedy. Now the carrier may not per- 
 haps be worth suing ; and the employer may bring the action against
 
 FORWARD V. PITTARD. 31 
 
 the hundred in his own name ; which action he would be deprived of, if 
 the carrier travelled by night. 
 
 There is not a single authority in all the old books which says that a 
 carrier is responsible for mere accidents. He only engages against 
 subtraction, spoil, and loss, occasioned by the neglect of himself or 
 his servants. These words plainly point at acts to be done, and omis- 
 sion of care and diligence. But in the present ease there is no act 
 done ; and there cannot be said to be any omission of care and dili- 
 gence, since they could not have prevented the calamity. 
 
 Lord Holt, in Coggs v. Bernard, seems to have traced, with great at- 
 tention, the different species of bailments. He cites many passages 
 from Bracton, who has nearly copied them from Justinian. So that it 
 is probable that the custom relating to carriers took its origin from the 
 civil law as to bailments. Now it is observable that in no one case of 
 bailment is the bailee answerable for an accident: he is only liable for 
 want of diligence. The only difference in this respect between the civil 
 and the English law is, that the former (Justin, lib. 3. 15. S. 2, 3, 4. 
 Tit. 35. S. 5) distinguishes between the different degrees of diligence 
 required in the different species of bailment ; which the latter does 
 not. 
 
 In all the cases to be found in our books, may be traced the true 
 ground of liability, negligence. If the law were not as is now contended 
 for, the question of negligence could never have arisen ; and the case of 
 robbery could not have borne an} - argument ; whereas the case of Mors 
 v. Slue (1 Vent. 190. 238) came on repeatedly before the Court, and cre- 
 ated veiy considerable doubts. 
 
 In the case of Dale v. Hall (1 Wils. 281), and the proprietors of the 
 Trent Navigation v. Wood, there were clear facts of negligence. In the 
 first, the rats gnawed a hole in the hoy, which undoubtedly might have 
 been prevented. And in the other, each of the judges, in giving his 
 opinion, said there was negligence. 
 
 In the year books (22 Ass. 41) there is a case of an action against a 
 waterman for overloading his boat so that the plaintiff's horse was 
 drowned. This case is recognized in Williams v. Lloyd (W. Jones, 
 180), where it is said " it was there agreed that if he had not surcharged 
 the boat, although the horse was drowned, no action lies, notwithstand- 
 ing the assumpsit: but if he surcharge the boat, otherwise ; for there is 
 default and negligence in the party." The Court in 22 Ass. 41, said, 
 " it seems that you trespassed when you surcharged the boat, by which 
 the horse perished." The same case is to be found in 1 Ro. Abr. 10. 
 pi. 18. Bro. Tit. Action sur le Case, 78. And it is also recognized in 
 Williams v. Hide and Ux. Palm. 548. 
 
 In Winch. 26. To an action against a carrier, there is a special plea 
 that the inn in which the goods were deposited was burned by fire, and 
 that the plaintiff's goods were at the same time destroyed, without the 
 default or neglect of the defendant or his servants. To this the plain- 
 tiff demurred, not generally but specially, " that the plea amounted to 
 the general issue."
 
 32 FORWARD V. PITTARD. 
 
 In all actions founded in negligence, the negligence is alleged and 
 tried, as a fact ; as in actions against a farrier, smith, coachman, etc. 
 It is the constant course in such actions to leave the question of neg- 
 ligence to the jury. It appears in Dalston v. Janson (5 Mod. 90) that 
 the defendant formerly used to plead particularly to the neglect. In 43 
 Edw. 3. 33. Clerk's Assist. 99. Mod. Intr. 95. and Brown. Red. 101. 
 which were actions founded in negligence, the negligence is traversed. 
 Now a traverse can be only of matter of fact. And here negligence is 
 expressly negatived by the case. 
 
 However, if the Court should be of opinion that the carrier is an- 
 swerable for every loss, unless occasioned by the act of God, or the 
 King's enemies, he then contended that, as the act of God was a good 
 ground of defence, this accident though not within the words, was within 
 the reason, of that ground. It cannot be said that misfortunes occasioned 
 b}* lightning, rain, wind, etc., are the immediate acts of the Almight} - ; 
 they are permitted but not directed by him. The reason why these ac- 
 cidents are not held to charge a carrier is that they are not under the 
 control of the contracting party ; and therefore cannot affect the con- 
 tract, inasmuch as he engages only against those events which by 
 possibility he may prevent. Lord Bacon, in his Law Tracts, com- 
 menting on this maxim, Reg. 5. " necessitas inducit privilegium quoad 
 jura privata," says, "the law charges no man with default where the 
 act is compulsory and not voluntary, and where there is not a consent 
 and election ; therefore, if either there be an impossibility for a man to 
 do otherwise, or so great a perturbation of the judgment and reason, as 
 in presumption of law man's nature cannot overcome, such necessity 
 carrieth a privilege in itself." Necessity, he says, is of three sorts ; and 
 under the third he adds. " If a fire be taken in a street, I ma}' justify 
 pulling down the walls or house of another man to save the row from 
 the spreading of the fire." Now in the present case, if any person-, in 
 order to stop the progress of the flames, had insisted on pulling down 
 the booth wherein the hops were deposited, and in doing this the hops 
 had been damaged, the carrier would not have been liable to make good 
 such damage ; for it would have been unlawful for him to have pre- 
 vented the pulling down the booth. 
 
 It is expressly found in the present case that the fire burnt with un- 
 extingnishable violence. The breaking out of the fire was an event 
 which God only could foresee. And the course it would take was as 
 little to be discovered by human penetration. 
 
 Bond, in reply. There are several strong cases where there could 
 not be any negligence. It is not sufficient in these cases to negative 
 any negligence; for every thing is negligence which the law does not 
 excuse (1 Wils. 282). And the question here is, is this a case which 
 the law does excuse? In Goffe v. Clinkard (cited in Wils. 282.) there 
 was all possible care on the part of the defendants. The judgment in 
 the case of (4 Burr. 2298) Gibbon v. Peyton and another, which was an 
 action against a stage-coachman for not delivering money sent, is ex- 
 tremely strong ; there Lord Mansfield said (4 Burr. 2300), " a common
 
 FORWARD V. PITTARD. 33 
 
 carrier, in respect of the premium he is to receive, runs the risk of 
 them, and must make good the loss, though it happen without any fault 
 iu him ; the reward making him answerable for their safe delivery." 
 
 That a carrier was liable in the case of a robbery was first held in 
 9 Ed. 4. pi. 40. 
 
 A bailee only cngnges to take care of his goods as his own, and is not 
 answerable for a robbery ; but a carrier insures. 1 Ventr. 190, 238. 
 Sir T. Raym. 220. S. C. 1 Mod. 85. 
 
 In Barclay and Heygena (E. 24 G. 3. B. R,), which was an action 
 against a master of a ship to recover the value of some goods put on 
 board his ship in order to be carried to St. Sebastian; it was proved 
 that an irresistible force broke into the ship in the river Thames, and 
 stole the goods ; yet the defendant was held answerable. In Sutton 
 and Mitchel (at the sittings at Guildhall after Tr. 25 G. 3. Vide 1 T. R. 
 18), the question was not disputed as fat- as to the value of the ship and 
 freight. 
 
 There is no distinction between that case and a land carrier. And 
 there can be no hardship in the Court's determining in favour of the 
 plaintiff; for when the law is once known and established, the parties 
 may contract according to the terms which it prescribes. 
 
 As to neo-liuence being a matter of fact ; that is answered by the de- 
 cision in the Company of the Trent Navigation against Wood. 
 
 Lord Mansfield. There is a nicety of distinction between the act 
 of God and inevitable necessity. In these cases actual negligence is 
 not necessary to support the action. Cur. adv. vult. 
 
 Afterwards Lord Mansfield delivered the unanimous opinion of the 
 Court. 
 
 After stating the case — The question is, whether the common ear- 
 lier is liable in this case of fire? It appears from all the cases 
 for one hundred years back, that there are events for which the 
 carrier is liable independent of his contract. By the nature of his 
 contract, he is liable for all due care and diligence ; and for any neg- 
 ligence he is suable on his contract. But there is a further degree of 
 responsibility' by the custom of the realm, that is, by the common law ; 
 a carrier is in the nature of an insurer. It is laid down that he is liable 
 for every accident, except by the act of God, or the King's enemies- 
 Now what is the act of God? I consider it to mean something in op- 
 position to the act of man : for ever} 7 thing is the act of God that hap- 
 pens by his permission ; every thing, by his knowledge. But to prevent 
 litigation, collusion, and the necessity of going into circumstances im- 
 - possible to be unravelled, the law presumes against the carrier, unless 
 he shows it was done by the King's enemies, or by such act as could 
 not happen by the intervention of man, as storms, lightning, and 
 tempests. 
 
 If an armed force come to rob the carrier of the goods, he is liable : 
 and a reason is given in the books, which is a bad one, viz. that he 
 ought to have a sufficient force to repel it: but that would be impossible 
 in some cases, as for instance in the riots in the year 1780. The true 
 
 3
 
 34 FORWARD V. PITTARD. 
 
 reason is, for fear it may give room for collusion, that the master may 
 contrive to be robbed on purpose, and share the spoil. 
 
 In this case, it does not appear but that the fire arose from the act of 
 some man or other. It certainly did arise from some act of man ; for it 
 is expressly stated not to have happened by lightning. The carrier 
 therefore in this case is liable, inasmuch as he is liable for inevitable 
 accident. 
 
 Judgment for the plaintiff.
 
 PUBLIC DUTY OF CAERIEES. 35 
 
 CHAPTEE I. 
 
 PUBLIC DUTY OF CAERIEES. 
 
 Section I. Public Calling. 
 
 Y. B. 21 Hen. VI. 55, pi. 12 (1443). Paston, J. If I am riding 
 along the highway and come to a town in which a smith lives, who has 
 material enough to shoe 1113- horse ; if my horse has lost his shoes, and 
 I at a fit time request him to shoe the horse and offer him enough for 
 his labor, and he refuses, whereby my horse is afterwards lost for want 
 of shoes, I say that in this same case I shall have action of trespass 
 on the case on his default. 
 
 Y. B. 39 Hen. VI. 18, pi. 24 (1460). Moile, J., said, If I come to 
 an innkeeper to lodge with him, and he will not lodge me, I shall have 
 on my case an action of trespass against him ; and in the same way if I 
 come to a victualler to buy victual, and he will not sell, I shall have an 
 action of trespass on my case against him ; and still in such cases if he 
 will bring a writ of debt against me on such duty, I shall have my law. 
 
 Prisot, C. J. It is true in those cases that the defendant wages his 
 law ; but the victualler or innkeeper is not held to sell you his victual 
 except at his will, nor the innkeeper to lodge you against his will, but 
 it lies in their election. 
 
 Quodnota; q u cere de ceo. 
 
 Danbv, J., said that an innkeeper is not bound to give bread to his 
 guest's horse until he be paid in cash ; for the law does not compel him 
 to put trust in his guest for payment. 
 
 Y. B. 22 Ed. IV. 49, pi. 15 (1483). Brian, J. I know well, if I put 
 a robe with a tailor to be made, or if I come to a common inn or a 
 common smith with my horse, in all cases of the sort I may have my 
 robe lying in the tailor's shop as long as I please [without its being sub- 
 ject to distraint] ; for he is compelled by the law to do it, and he may 
 by the law detain until he be satisfied for making it. In the same way 
 my horse shall be in the common inn for whatever time I please, for the 
 license is given by the law, and the innkeeper ma} - retain until he be 
 paid. . . . But where the law gives license for a time certain, there it 
 is otherwise ; as if a man continues in a tavern beyond the proper hour, 
 there all his coming shall be tortious, for the law will not have common 
 taverns haunted except in due time and season. 
 
 Y. B. 10 Hen. VII. 8, pi. 14 (1494). Hussey, C. J., said that a 
 victualler shall be compelled to sell his victual if the vendee has tendered 
 him ready payment, otherwise not. Quod Brian, C. J., affirmauit.
 
 36 ALLNUTT v. INGLIS. 
 
 Y. B. 14 Hen. VII. 22, pi. 4 (1499). Higham (arguendo). If I 
 come to an innkeeper and pray to be lodged with him, and he says 
 that at that time he will not, but if I come at another time he will with 
 pleasure, I shall have an action on nry case, because it was his duty to 
 lodge me, and b} T the law he was bound to do it. 
 
 Keilway 50 pi. 4 (1503). Note that it was agreed by the Court, that 
 where a smith declines to shoe my horse, or an innkeeper refuses to give 
 me entertainment at his inn, I shall have an action on the case, notwith- 
 standing no act is done ; l for it does not sound in covenant. . . . Note 
 that in this case a man shall have no action against innkeeper, but shall 
 make complaint to the ruler, by 5 Ed. IV. 2 ; contra, 14 Hen. VII. 22. 
 
 JACKSON v. ROGERS. 
 
 King's Bench, 1683. 
 
 [2 Shower, 327.] 
 
 Action on the case, for that whereas the defendant is a common car- 
 rier from London to Lymmington et abinde retrorsum, and setting it 
 forth as the custom of England, that he is bound to cany goods, and 
 that the plaintiff brought him such a pack, he refused to cany them, 
 though offered his hire. 
 
 And held by Jefferies, C. J., that the action is maintainable, as well 
 as it is against an innkeeper for refusing a guest, or a smith on the road 
 who refuses to shoe my horse, being tendered satisfaction for the same. 
 
 Note, That it was alleged and proved that he had convenience to 
 carry the same ; and the plaintiff had a verdict. 
 
 ALLNUTT v. INGLIS. 
 King's Bench, 1810. 
 
 [12 East, 527.] 
 
 Lord Ellenborough, C. J. 2 The question on this record is whether 
 the London Dock Compairy have a right to insist upon receiving wines 
 into their warehouses for a hire and reward arbitrary and at their will 
 and pleasure, or whether they were bound to receive them there for a 
 reasonable reward only. There is no doubt that the general principle 
 is favored both in law and justice, that every man may fix what price he 
 pleases upon his own property or the use of it : but if, for a particular 
 purpose, the public have a right to resort to his premises and make use 
 of them, and he have a monopoly in them for that purpose, if he will 
 
 1 " Because he has made profession of a trade which is for the public g-ood, and has 
 thereby exposed and vested an interest of himself in all the king's subjects that will era- 
 ploy him in the way of his trade.'' Holt, C J., in Lane >■. Cotton. 12 Mod. 4S4. — Ed. 
 
 - This opinion only is given ; it sufficiently states tin' ease. — Ed.
 
 ALLNUTT V. INGLIS. 37 
 
 take the benefit of that monopoly, he must as an equivalent perform the 
 duty attached to it on reasonable terms. The question then is, whether 
 circumstanced as this company is by the combination of the warehous- 
 ing act with the act by which they were originally constituted, and with 
 the actually existing state of things in the port of London, whereby they 
 alone have the warehousing of these wines, they be not, according to 
 the doctrine of Lord Hale, obliged to limit themselves to a reasonable 
 compensation for such warehousing? And according to him, wherever 
 the accident of time casts upon a party the benefit of having a legal 
 monopoly of landing goods in a public port, as where he is the owner 
 of the only wharf authorized to receive goods which happens to be 
 built in a port newly erected, he is confined to take reasonable com- 
 pensation onl} - for the use of the wharf. Lord Hale puts the case either 
 way ; where the king or a subject have a public wharf to which all 
 persons must come who come to that port to unlade their goods, either 
 " because they are the wharfs only licensed by the queen, or because 
 there is no other wharf in that port, as it may fall out : in that case 
 (he says) there cannot be taken arbitrary and excessive duties for 
 cranage, wharfage, &c. : neither can they be enhanced to an immoderate 
 rate ; but the duties must be reasonable and moderate, though settled 
 b}* the king's license or charter." And then he assigns this reason, " for 
 now the wharf and crane and other conveniences are affected with a 
 public intei'est, and the} T cease to be juris privati only." Then were the 
 company's warehouses juris privati only at this time? The legislature 
 had said that these goods should only be warehoused there ; and the act 
 was passed not merely for the benefit of the company, but for the good 
 of trade. The first clause (43 G. 3, c. 132, the general warehousing 
 act) says that it would greatly tend to the encouragement of the trade 
 and commerce of G. B., and to the accommodation of merchants and 
 others, if certain goods were permitted to be entered and landed and 
 secured in the port of London without payment of duties at the time 
 of the first entry : and then it says that it shall be lawful for the im- 
 porter of certain goods enumerated in table A. to secure the same in 
 the West India dock warehouses : and then by s. 2 other goods enumer- 
 ated in table B. may in like manner be secured in the London dock 
 warehouses. And there are no other places at present lawfully author- 
 ized for the warehousing of wines (such as were imported in this case) 
 except these warehouses within the London dock premises, or such 
 others as are in the hands of this company. But if those other ware- 
 houses were licensed in other hands, it would not cease to be a monopoly 
 of the privilege of bonding there, if the right of the public were still 
 narrowed and restricted to bond their goods in those particular ware- 
 houses, though the}' might be in the hands of one or two others besides 
 the company's. Here then the company's warehouses were invested 
 with the monopoly of a public privilege, and therefore they must by law 
 confine themselves to take reasonable rates for the use of them for that 
 purpose. If the crown should hereafter think it advisable to extend 
 the privilege more generally to other persons and places, so far as that
 
 38 LAWKENCE V. PULLMAN PALACE CAR CO. 
 
 the public will not be restrained from exercising a choice of ware- 
 houses for the purpose, the company may be enfranchised from the re- 
 striction which attaches upon a monopoly : but at present, while the 
 public are so restricted to warehouse their goods with them for the 
 purpose of bonding, they must submit to that restriction ; and it is 
 enough that there exists in the place and for the commodity in question 
 a virtual monopoly of the warehousing for this purpose, on which the 
 principle of law attaches, as laid down by Lord Hale in the passage 
 referred to, which includes the good sense as well as the law of the 
 subject. Whether the company be bound to continue to apply their 
 warehouses to this purpose may be a nice question, and I will not say 
 to what extent it may go ; but as long as their warehouses are the only 
 places which can be resorted to for this purpose, they are bound to let 
 the trade have the use of them for a reasonable hire and reward. 1 
 
 LAWRENCE v. PULLMAN PALACE CAR CO. 
 
 Supreme Judicial Court of Massachusetts, 1887. 
 
 [144 Mass. 1.] 
 
 Devens, J. 2 The gist of the plaintiff's claim is that he was wrong- 
 fully refused accommodation in the sleeping car of the defendant, in 
 coming from Baltimore to New York, by the defendant's servants ; and 
 that, on declining to leave the car, he was ejected therefrom. His 
 argument assumes that it was for the defendant to determine under 
 what circumstances a passenger should be allowed to purchase a berth, 
 and, incidentally, the other accommodations afforded by the sleeping 
 car. An examination of the contract with the Pennsylvania Railroad 
 Company, by virtue of which the cars owned by the defendant were 
 conveyed over its railroad, shows that, while these cars were to be fur- 
 nished by the defendant corporation, they were so furnished to be used 
 by the railroad company ' l for the transportation of passengers ; " that 
 its employees were to be governed by the rules and regulations of the 
 railroad company, such as it might adopt, from time to time, for the 
 government of its own employees. While, therefore, the defendant 
 company was to collect the fares for the accommodations furnished by 
 its cars, keep them in proper order, and attend upon the passengers, it 
 was for the railroad company to determine who should be entitled to 
 enjoy the accommodations of these cars, and by what regulation this 
 use of the cars should be governed. The defendant company could not 
 certainly furnish a berth in its cars until the person requesting it had 
 become entitled to transportation by the railroad company as a pas- 
 senger, and he must also be entitled to the transportation for such 
 routes, distances, or under such circumstances, as the railroad company 
 
 1 Grose, Le Blanc, and Batlet, JJ., delivered concurring opinions. — Ed. 
 
 2 The opinion only is given ; it sufficiently states the case. — Ed.
 
 LAWRENCE V. PULLMAN PALACE CAR CO. 39 
 
 should determine to be those under which the defendant company would 
 be authorized to furnish him with its accommodations. The defendant 
 company could onl} r contract with a passenger when he was of such a 
 class that the railroad company permitted the contract to be made. 
 
 The railroad company had classified its trains, fixing the terms upon 
 which persons should become entitled to transportation in the sleeping 
 cars, and the cars in which such transportation would be afforded. It 
 was its regulation that, between Baltimore and New York this accom- 
 modation should only be furnished to those holding a ticket over the 
 whole route. It does not appear that this was an unreasonable rule, 
 but, whether it was so or not, it was the regulation of the railroad com- 
 pan}-, and not of the defendant. The evidence was, " that the ordinary 
 train conductors of the Pennsylvania Railroad Company have full and 
 entire authority over the porters and conductors of the Pullman cars, 
 in regard to the matter of determining who shall ride in the cars, and 
 under what circumstances, and in regard to every other thing, except" 
 the details of care, etc. The defendant's servant, the plaintiff having 
 entered the sleeping car, informed him that his " split tickets," as they 
 are termed, were not such as would entitle him to purchase a berth, 
 and that he could sell only to those holding " through passage tickets, 
 intact, to the point to which sleeping accommodations were desired." 
 The plaintiff was in no wa}' disturbed until the train conductor (who 
 was not the defendant's servant) came into the car, informed the plain- 
 tiff that his tickets were not such as to entitle him to purchase the 
 sleeping-car ticket, and several times urged the plaintiff to leave the 
 sleeping car, which the plaintiff refused to do. Whether accommoda- 
 tion was rightly refused to the plaintiff or not in the sleeping car, the 
 refusal was the act of the railroad company's servant, and not of the 
 defendant's, whose duty it was to be guided by the train conductor. 
 
 The ejection of the plaintiff was also the act of the railroad compam*, 
 and not of the defendant. It is the contention of the plaintiff that, 
 even if he might be ejected from the car, it was done in an improper 
 manner. The plaintiff testified that he was waiting for a "show of 
 force," after his repeated refusals to leave the car. This exhibition of 
 force was made by the train conductor, who put his hand upon him, 
 when the plaintiff rose and yielded thereto. The defendant's conductor 
 took hold of the plaintiff's arm when he rose, and aided the plaintiff in 
 crossing the platform of the cars, but the evidence does not show that 
 he used or exercised an}- force whatever. Even if he had used force 
 upon the plaintiff, he was not doing the business of the defendant com- 
 pany ; he was assisting the train conductor in the duty he was perform- 
 ing as servant of the railroad company. To conduct him across from 
 one car to another in the manner described by the plaintiff himself, after 
 he had repeatedly refused to leave the car, affords no evidence of any 
 removal in an improper manner. The act of the defendant's servant 
 was in every way calculated to assist the plaintiff in his transit from 
 one car to another. 
 
 Nor is the fact important that the car into which the plaintiff was
 
 40 CHESAPEAKE AND POT. TEL. CO. V. BAL. AND OHIO TEL. 
 
 CO. 
 
 passed subsequently became cold, even if it were possible to hold the 
 defendant responsible for the act of its servant. So" far as appears by 
 the evidence, there is no reason to believe that, when the plaintiff en- 
 tered the car, it was not in fit condition to receive passengers ; and, by 
 the contract, the management of it and the duty of furnishing fuel were 
 entirety with the railroad company, and not with the defendant. 
 
 Judgment on the verdict. 1 
 
 CHESAPEAKE AND POTOMAC TELEPHONE CO. v. BAL- 
 TIMORE AND OHIO TELEGRAPH CO. 
 
 Court of Appeals, Maryland, 1887. 
 
 [66 Maryland, 399.] 
 
 Alvey, C. J. 2 This was an application b}- the appellee, a telegraph 
 company, to the Court below for a mandamus, which was accordingly 
 ordered, against the appellant, another telegraph company, but doing 
 a general telephone business. 
 
 The appellant appears to be an auxiliary compairy, operating the 
 Telephone Exchange under the patents known as the Bell patents. 
 Those patents, formerly held by the National Bell Telephone Cora- 
 pany, are now held by the American Bell Telephone Company, a cor- 
 poration created under the law of the State of Massachusetts. The 
 patents, with the contracts relating thereto, were assigned by the 
 former to the latter company, [trior to the 23rd of May, 1882, and it 
 is under a contract, of the date just mentioned, that the appellant 
 acquired a right to use the patented devices in the operation of its 
 system of telephonic exchanges. 
 
 In the agreed statement of facts, it is admitted that all the tele- 
 phones used by the Chesapeake and Potomac Telephone Company (a 
 company to which the appellant is an auxiliary organization), and also 
 all the telephones used by the appellant in its Exchange in the City of 
 Baltimore, and elsewhere in the State, are the property of the Ameri- 
 can Bell Telephone Company. It is alleged by the appellee and 
 admitted b}" the appellant, that the offices of the Western Union Tele- 
 graph Company of Baltimore City are connected with the Telephone 
 Exchange of the appellant, and that when a subscriber to the Tele- 
 phone Exchange wishes to send a message b} r way of the lines of the 
 Western Union Telegraph Company, the subscriber calls up the Tele- 
 phone Exchange, and the agent there connects him with the office of 
 the Western Union Telegraph Company, and the subscriber thereupon 
 telephones his message over the lines of the appellant, to the Western 
 Union Telegraph office ; and a like process is repeated when a message 
 is received by the Western Union Telegraph Company for a subscriber 
 to the Telephone. Exchange of the appellant. The appellee is a com- 
 
 1 See Kevin v. P. P. Car Co., 106 111. 222 ; Searles v. Car Co., 45 Fed. 330. — Ed. 
 
 2 Part of the opinion only is given. — Ed.
 
 CHESAPEAKE AND POT. TEL. CO. V. BAL. AND OHIO TEL. CO. 41 
 
 peting company, in the general telegraph business, with the Western 
 Union Telegraph Company. And being such, it made application to 
 the appellant to have a telephone instrument placed in its receiving 
 room in Baltimore, and that the same might be connected with ihe 
 Central Exchange of the appellant in that city; so that the appellee 
 might be placed upon the same and equal footing with the Western 
 Union Telegraph Company, in conducting its business. This request 
 was refused, unless the connection be accepted under certain condi- 
 tions and restrictions, to be specially embodied in a contract between 
 the two companies, and which conditions and restrictions do not apply 
 in the case of the Western Union Telegraph Company. 
 
 It appears that there were conflicting claims existing as to priority 
 of invention, and alleged infringement of patent rights, which were 
 involved in a controversy between the Western Union Telegraph Com- 
 pany and others, and the National Bell Telephone Company, to whose 
 rights the American Bell Telephone Company succeeded ; and in order 
 to adjust those conflicting pretensions, the contract of the 10th of Nov., 
 1879, was entered into by the several parties concerned. The contract 
 is veiy elaborate, and contains a great variety of provisions. By this 
 agreement, with certain exceptions, the National Bell Telephone Corn- 
 pan}- w r as to acquire and become owner of all the patents relating to 
 telephones, or patents for the transmission of articulate speech by 
 means of electricity. But while it was expressly stipulated (Art. 13, 
 el. 1) that the right to connect district or exchange systems, and the 
 right to use telephones on all lines, should remain exclusively with the 
 National Bell Telephone Company (subsequently the American Bell 
 Telephone Company), and those licensed b} - it for the purpose, it was 
 in terms provided that " such connecting and other lines are not to 
 be used for the transmission of general business messages, market 
 quotations, or news, for sale or publication, in competition with the 
 business of the Western Union Telegraph Company, or with that of 
 the Gold and Stock Telegraph Company. And the party of the sec- 
 ond part [National Bell Teleph. Co.], so far as it lawfully and prop- 
 erly can prevent it, will not permit the transmission of such general 
 business messages, market quotations, or news, for sale or publication, 
 over lines owned by it, or by corporations in which it owns a controll- 
 ing interest, nor license the use of its telephones, or patents, for the 
 transmission of such general business messages, market quotations, or 
 news, for sale or publication, in competition with such telegraph busi- 
 ness of the Western Union Telegraph Company, or that of the Gold 
 and Stock Telegraph Company." The contract of the 23rd of May, 
 1882, under which the appellant derives its right to the use of the 
 patented instruments, was made in subordination to the prior contract 
 of the 10th of Nov., 1879, and contains a provision to conform to the 
 restrictions and conditions just quoted. In that subordinate contract 
 it is provided that "no telegraph company, unless specially permitted 
 by the licensor, can be a subscriber, or use the system to collect and 
 deliver messages from and to its customers," &c.
 
 42 CHESAPEAKE AND POT. TEL. CO. V. BAL. AND OHIO TEL. CO. 
 
 These contracts are pleaded and relied on by the appellant as afford- 
 ing a full justification for exacting from the appellee a condition in the 
 contract of subscription to the Exchange, that the latter should observe 
 the restrictions in favor of the Western Union Telegraph Company. 
 The appellant contends that these restrictive conditions in the con- 
 tracts recited are binding upon it, and that it is not at liberty to furnish 
 to the appellant, being a telegraph company, the instruments applied 
 for and place them in connection with the Exchange, unless it be sub- 
 ject to the restrictive conditions prescribed. And if this be so, the 
 Court below was in error in ordering the mandamus to issue. But is 
 the contention of the appellant well founded, in view of the nature of 
 the service that it has undertaken to perform ? 
 
 The appellant is in the exercise of a public employment, and has 
 assumed the duty of serving the public while in that employment. In 
 this case, the appellant is an incorporated body, but it makes no differ- 
 ence whether the party owning and operating a telegraph line or a tele- 
 phone exchange be a corporation or an individual, the duty imposed, 
 in respect to the public, is the same. It is the nature of the service 
 undertaken to be performed that creates the duty to the public, and in 
 which the public have an interest, and not simply the body that may 
 be invested with power. The telegraph and telephone are important 
 instruments of commerce, and their service as such has become indis- 
 pensable to the commercial and business public. The}- are public 
 vehicles of intelligence, and they who own or control them can no more 
 refuse to perform impartially the functions that they have assumed to 
 discharge, than a railway company, as a common carrier, can rightfully 
 refuse to perform its duty to the public. They may make and estab- 
 lish all reasonable and proper rules and regulations for the government 
 of their offices and those who deal with them, but they have no power 
 to discriminate, and while offering read}' to serve some, refuse to serve 
 others. The law requires them to be impartial, and to serve all alike, 
 upon compliance with their reasonable rules and regulations. This the 
 statute expressly requires in respect to telegraph lines, and, as we have 
 seen, the same provision is made applicable to telephone lines and 
 exchanges. The law declares that it shall be the duty of any person 
 or corporation owning and operating any telegraph line within this 
 State (which, as we have seen, includes a telephone exchange) "to 
 receive dispatches from and for any telegraph lines, associations, or 
 companies, and from and for any individual," and to transmit the 
 same in the manner established by the rules and regulations of the 
 office, " and in the order in which the}- are received, with impartiality 
 and good faith." And such being the plain duty of those owning or 
 operating telegraph lines, or telephone lines and exchanges, within this 
 State, they cannot be exonerated from the performance of that duty, 
 by any conditions or restrictions imposed by contract with the owner 
 of the invention applied in the exercise of the employment. The duty 
 prescribed by law is paramount to that prescribed by contract. 
 
 Nor can it be any longer controverted that the Legislature of the
 
 PEOPLE V. BUDD. 43 
 
 State has full power to regulate and control, within reasonable limits 
 at least, public employments and property used in connection there- 
 with. As we have said, the telegraph and telephone both being instru- 
 ments in constant use in conducting the commerce, and the affairs, 
 both public and private, of the country, their operation, therefore, in 
 doing a general business, is a public employment, and the instruments 
 and appliances used are property devoted to public use, and in which 
 the public have an interest. And such being the case, the owner of 
 the property thus devoted to public use, must submit to have that use 
 and employment regulated by public authority for the common good. 
 This is the principle settled by the case of Munn vs. Illinois, 94" U. 8., 
 113, and which has been followed by subsequent cases. In the recent 
 case of Hockett vs. State, 105 Ind., 250, where the eases upon this 
 subject are largely collected, it was held, applying the principle of 
 Munn vs. Illinois, that it was competent to the State to limit the price 
 which telephone companies might charge for their patented facilities 
 afforded to their customers. And if the price of the service can be 
 lawfully regulated by State authority, there is no perceptible reason for 
 denying such authority for the regulation of the service as to the par- 
 ties to whom facilities should be furnished. 1 
 
 PEOPLE v. BUDD. 
 Court of Appeals, New York, 1889. 
 
 [117 iV. Y. 1: 22 N. E. 670.] 
 
 Andrews, J. 2 The main question upon this record is whether the 
 legislation fixing the maximum charge for elevating grain, contained 
 in the act (chapter 581, Laws 1888), is valid and constitutional. 
 The act, in its first section, fixes the maximum charge for receiving, 
 weighing, and discharging grain by means of floating and stationary 
 elevators and warehouses in this state at five-eighths of one cent a 
 bushel, and for trimming and shoveling to the leg of the elevator, 
 in the process of handling grain by means of elevators, " lake ves- 
 sels, or propellers, the ocean vessels or steamships, and canal boats," 
 shall, the section declares, only be required to pay the actual cost. 
 The second section makes a violation of the act a misdemeanor, 
 punishable by fine of not less than 8250. The third section gives a 
 civil remedy to a party injured by a violation of the act. The fourth 
 section excludes from the operation of the act any village, town, 
 or city having less than 130,000 population. The defendant, the 
 
 1 See to the same effect State v. Telephone Co., 23 Fed. 539 ; Delaware, &c. Tel. 
 Co. v. State, 50 Fed. 677 ; Hockett v. State, 105 Ind. 250 ; Telephone Co. v. Bradbury, 
 106 Ind. 1 ; Telephone Co. v. Falley, 118 Ind. 194 ; 19 N. E. 604 ; Louisville Transfer 
 Co. v. Tel. Co., 1 Ky. Law J. 144; State v. Tel. Co., 17 Neb. 126; State v. Tel. Co., 
 36 Oh. St. 296 ; Bell Tel. Co. v. Com. (Pa.), 3 Atl. 825 ; Tel. Co. v. Tel. Co., 61 Vt. 
 241, 17 Atl. 1071. But see Tel. Co. v. Tel. Co., 49 Conn. 352. — Ed. 
 
 2 Part of the opinion is omitted. — Ed.
 
 44 PEOPLE V. BUDD. 
 
 manager of a stationary elevator in the city of Buffalo, on the 19th 
 day of September, 1888, exacted from the Lehigh Valley Transpor- 
 tation Company, for elevating, raising, and discharging a cargo of 
 corn from a lake propeller at his elevator, the sum of one cent a 
 bushel, and for shoveling to the leg of the elevator the carrier was 
 charged and compelled to pay $4 for each thousand bushels. The 
 shoveling of grain to the leg of an elevator at the port of Buffalo is 
 now performed, pursuant to an arrangement made since the passage 
 of the act of 1888, by a body of men known as the Shovelers' Union, 
 who pay the elevator 81.75 a thousand bushels for the use of the 
 steam-shovel, a part of the machinery connected with the elevator, 
 operated by steam, and who for their services, and the expense of the 
 steam-shovel, charge the carrier for each thousand bushels of grain 
 shoveled the sum of $4. The defendant was indicted for a violation 
 of the act of 1888. The indictment contains a single count, charging 
 a violation of the first section in two particulars, viz., in exacting 
 more than the statute rate for elevating the cargo, and exacting more 
 than the actual cost for shoveling the grain to the leg of the 
 elevator. . . . 
 
 The question is whether the power of the legislature to regulate 
 charges for the use of property, and the rendition of services con- 
 nected with it, depend in every case upon the circumstance that the 
 owner of the property has a legal monopoly or privilege to use the 
 property for the particular purpose, or has some special protection 
 from the government, or some peculiar benefit in the prosecution of 
 his business. Lord Hale, in the treatises Ue Portibus Maris and 
 De Jure Maris, so largely quoted from in the opinions in the Munn 
 Case, 1 used the language that when private property is " affected 
 with a public interest it ceases to be juris privati only," in assign- 
 ing the reason why ferries and public wharves should be under public 
 regulation, and only reasonable tolls charged. The right to establish 
 a ferry was a franchise, and no man could set up a ferry, although 
 he owned the soil and landing places on both sides of the stream, 
 without a charter from the king, or a prescription time out of mind. 
 The franchise to establish ferries was a royal prerogative, and the 
 grant of the king was necessary to authorize a subject to establish a 
 public ferry, even on his own premises. When we recur to the 
 origin and purpose of this prerogative, it will be seen that it was 
 vested in the king as a means by which a business in which the whole 
 community were interested could be regulated. In other words, it 
 was simply one mode of exercising a prerogative of government — 
 that is to say, through the sovereign instead of through Parliament 
 — in a matter of public concern. This and similar prerogatives were 
 vested in the king for public purposes, and not for his private ad- 
 vantage or emolument. Lord Kenyon in Rorke v. Dayrell, 4 Term 
 R. 410, said: " The prerogatives [of the crown] are not given for the 
 
 i Munn v. Illinois, 94 U. S. ll» —Ed.
 
 PEOPLE V. BUDD. 45 
 
 personal advantage of the king, but they are allowed to exist because 
 they are beneficial to the subject; " and it is said in Chitty on Prerog- 
 atives (page 4) : " The splendor, rights, and power of the crown 
 were attached to it for the benefit of the people, and not for the pri- 
 vate gratification of the subject." And Lord Hale, in one of the 
 passages referred to, in stating the reason why a man may not set up 
 a ferry without a charter from the king, says: "Because it doth in 
 consequence tend to a common charge, and is become a thing of 
 public interest and use, and every man for his passage pays a toll 
 which is a common charge, and every ferry ought to be under a 
 public regulation." The right to take tolls for wharfage in a public 
 port was also a franchise, and tolls, as Lord Hale says, could not be 
 taken without lawful title by charter or prescription. De Port. Mar. 
 77. But the king, if he maintained a public wharf, was under the 
 same obligation as a subject to exact only reasonable tolls, nor could 
 the king authorize unreasonable tolls to be taken by a subject. 
 The language of Lord Hale is explicit upon both these points: " If 
 the king or subject have a public wharf into which all persons that 
 come to that port must come to unload their goods, as for the pur- 
 pose, because they are the wharves only licensed by the queen, 
 according to the statute of 1 Eliz. c. 11, or because there is no other 
 wharf in that port, as it may fall out when a port is newly erected, 
 in that case there cannot be taken arbitrary and excessive duties for 
 cranage, wharfage, passage, etc. Neither can they be enhanced to 
 an immoderate degree, but the duties must be reasonable and moder- 
 ate, though settled by the king's license or charter." 
 
 The contention that the right to regulate the charges of ferrymen or 
 wharfingers was founded on the fact that tolls could not be taken 
 without the king's license does not seem to us to be sound. It 
 rested on the broader basis of public interest, and the license was the 
 method by which persons exercising these functions were subjected 
 to governmental supervision. The king, in whom the franchise of 
 wharfage was vested as a royal prerogative, was himself, as has been 
 shown, subject to the same rule as the subject, and could only exact 
 reasonable wharfage, nor could he by express license authorize the 
 taking of more. The language of Lord Hale, that private property 
 may be affected by a public interest, cannot justly, we think, lie 
 restricted as meaning only property clothed with a public character 
 by special grant or charter of the sovereign. The control which by 
 common law and by statute is exercised over common carriers is 
 conclusive upon the point that the right of the legislature to regu- 
 late the charges for services in connection with the use of property 
 does not in every case depend upon the question of legal monopoly. 
 From the earliest period of the common law it has been held that 
 common carriers were bound to carry for a reasonable compensation. 
 They were not at liberty to charge whatever sum they pleased, and, 
 even where the price of carriage was fixed by the contract or conven- 
 tion of the parties, the r"itract was not enforceable beyond the point
 
 46 PEOPLE V. BUDD. 
 
 of reasonable compensation. From time to time statutes have been 
 enacted in England and in this country fixing the sum which should 
 be charged by carriers for the transportation of passengers and prop- 
 erty, and the validity of such legislation has not been questioned. 
 But the business of common carriers until recent times was conducted 
 almost exclusively by individuals for private emolument, and was open 
 to every one who chose to engage in it. The state conferred no fran- 
 chise, and extended to common carriers no benefit or protection, 
 except that general protection which the law affords to all persons 
 and property within its jurisdiction. The extraordinary obligations 
 imposed upon carriers, and the subjection of the business to public 
 regulation, were based on the character of the business; or, in the 
 language of Sir William Jones, upon the consideration " that the 
 calling is a public employment." Jones, Bailm. App. It is only 
 a public employment in the sense of the language of Lord Hale, 
 that it was " affected with a public interest," and the imposition of 
 the character of a public business upon the business of a common 
 carrier was made because public policy was deemed to require that it 
 should be under public regulation. The principle of the common 
 law, that common carriers must serve the public for a reasonable 
 compensation, became a part of the law of this state, and from the 
 adoption of the constitution has been part of our municipal law. It 
 is competent for the legislature to change the rule of reasonable com- 
 pensation, as the matter was left by the common law, and prescribe a 
 fixed and definite compensation for the services of common carriers. 
 This principle was declared in the Munn Case, which was cited with 
 approval on this point in Sawyer v. Davis, 136 Mass. 239. It accords 
 with the language of Chief Justice Shaw in Com. v. Alger, 7 Cush. 
 53: " Wherever there is a general right on the part of the public, 
 and a general duty on the part of a land-owner or any other person 
 to respect such right, we think it is competent for the legislature, 
 by a specific enactment, to prescribe a precise, practical rule for 
 declaring, establishing, and securing such right, and enforcing 
 respect for it." The practice of the legislature in this and other 
 states to prescribe a maximum rate for the transportation of persons 
 or property on railroads is justified upon this principle. Where the 
 right of the legislature to regulate the fares or charges on railroads 
 is received by the charter of incorporation, or the charter was granted 
 subject to the general right of alteration or repeal by the legislature, 
 the power of the legislature in such cases to prescribe the rate of 
 compensation is a part of the contract, and the exercise of the power 
 does not depend upon any general legislative authority to regulate 
 the charges of common carriers. But the cases are uniform that 
 where there is no reservation in the charter the legislature may 
 nevertheless interfere, and prescribe or limit the charges of railroad 
 corporations. The Granger Cases, 94 U. S. 113; Dow v. Beidelman, 
 125 U. S. 680; Earl, J.", in People v. Railroad Co., 70 N. Y. 569; 
 RuGER, C. J., in Railroad Co. v. Railroad Co., Ill N. Y. 132.
 
 PEOPLE V. BUDD. 47 
 
 The power of regulation in these cases does not turn upon the fact 
 that the entities affected by the legislation are corporations deriving 
 their existence from the state, but upon the fact that the corporations 
 are common carriers, and therefore subject to legislative control. 
 The state, in constituting a corporation, may prescribe or limit its 
 powers, and reserve such control as it sees (it, and the body accepting 
 the charter takes it subject to such limitations and reservations, and 
 is bound by them. The considerations upon which a corporation 
 holds its franchise are the duties and obligations imposed by the act 
 of incorporation. But when a corporation is created it has the same 
 rights and the same duties, within the scope marked out for its 
 action, that a natural person has. Its property is secured to it by the 
 same constitutional guaranties, and in the management of its prop- 
 erty and business is subject to regulation by the legislature to the 
 same extent only as natural persons, except as the power may be 
 extended by its charter. The mere fact of a corporate character 
 does not extend the power of legislative regulation. For illustration, 
 it could not justly be contended that the act of 1888 would be a valid 
 exercise of legislative power as to corporations organized for the pur- 
 pose of elevating grain, although invalid as to private persons con- 
 ducting the same business. The conceded power of legislation over 
 common carriers is adverse to the claim that the police power does 
 not in any case include the power to fix the price of the use of private 
 property, and of services conuected with such use, unless there is a 
 legal monopoty, or special governmental privileges or protection have 
 been bestowed. It is said that the control which the legislature is 
 permitted to exercise over the business of common carriers is a sur- 
 vival of that class of legislation which in former times extended to 
 the details of personal conduct, and assumed to regulate the private 
 affairs and business of men in the minutest particulars. This is 
 true. But it has survived because it was entitled to survive. By 
 reason of the changed conditions of society, and a truer appreciation 
 of the proper functions of government, many things have fallen out of 
 the range of the police power as formerly recognized, the regulation 
 of which by legislation would now be regarded as invading personal 
 liberty. But society could not safely surrender the power to regulate 
 by law the business of common carriers. Its value has been infinitely 
 increased by the conditions of modern commerce, under which the 
 carrying trade of the country is, to a great extent, absorbed by cor- 
 porations, and, as a check upon the greed of these consolidated in- 
 terests, the legislative power of regulation is demanded by the most 
 imperative public interests. The same principle upon which the con- 
 trol of common carriers rests has enabled the state to regulate in the 
 public interest the charges of telephone and telegraph companies, and 
 to make the telephone and telegraph, those important agencies of 
 commerce, subservient to the wants and necessities of society. 
 These regulations in no way interfere with a rational liberty, — 
 liberty regulated by law.
 
 48 PEOPLE V. BUDD. 
 
 There are elements of publicity in the business of elevating grain 
 which peculiarly affect it with a public iuterest. They are found in 
 the nature and extent of the business, its relation to the commerce 
 of the state and country, and the practical monopoly enjoyed by those 
 enlaced in it. The extent of the business is shown by the facts to 
 which we have referred. A. large proportion of the surplus cereals 
 of the country passes through the elevators at Buffalo, and finds its 
 way through the Erie Canal and Hudson River to the seaboard at 
 New York, from whence they are distributed to the markets of the 
 world. The business of elevating grain is an incident to the busi- 
 ness of transportation. The elevators are indispensable instrumen- 
 talities in the business of the common carrier. It is scarcely too 
 much to say that, in a broad sense, the elevators perform the work of 
 carriers. They are located upon or adjacent to the waters of the state, 
 and transfer from the lake vessels to the canal-boats, or from the 
 canal-boats to the ocean vessels, the cargo of grain, and thereby 
 perform an essential service in transportation. It is by means of 
 the elevators that transportation of grain by water from the upper 
 lakes to the seaboard is rendered possible. It needs no argument to 
 show that the business of elevating grain has a vital relation to com- 
 merce in one of its most important aspects. Every excessive charge 
 made in the course of the transportation of grain is a tax on com- 
 merce, and the public have a deep interest that no exorbitant charges 
 shall be exacted at any point upon the business of transportation. 
 The state of New York, in the construction of the Erie Canal, ex- 
 hibited its profound appreciation of the public interest involved in 
 the encouragement of commerce. The legislature of the state, in 
 entering upon the work of constructing a water-way between Lake 
 Erie and the Atlantic Ocean, sets forth in the preamble of the orig- 
 inating act of 1817 its reasons for that great undertaking. " It 
 will," the preamble says, "promote agriculture, manufactures, and 
 commerce, mitigate the calamities of war, and enhance the bless- 
 ings of peace, consolidate the Union, and advance the prosperity 
 and elevate the character of the United States." In the construction 
 and enlargement of the canal the state has expended vast sums of 
 money, raised by taxation; and finally, to still further promote the 
 interests of commerce, it has made the canal a free highway, and 
 maintains it by a direct tax upon the people of the state. The wise 
 forecast and statesmanship of the projectors of this work have been 
 amply demonstrated by experience. It has largely contributed to the 
 power and influence of the state, promoted the prosperity of the 
 people, and to it, more perhaps than to any other single cause, is it 
 owing that the city of New York has become the commercial centre 
 of the Union. 
 
 Whatever impairs the usefulness of the canal as a highway of com- 
 merce involves the public interest. The people of New York are 
 greatly interested to prevent any undue exactions in the business of 
 transportation which shall enhance the cost of the necessaries of life,
 
 PEOPLE V. BUDD. 49 
 
 or force the trade in grain into channels outside of our state. In 
 Hooker v. Vandewater, 4 Denio, 34U, the court was called upon 
 to consider the validity of an agreement between certain transporta- 
 tion lines on the canal to keep up the price of freights. The court 
 held the agreement to be illegal, and Jewett, J., in pronouncing the 
 judgment of the court, said : " That the raising of the price of freights 
 for the transportation of merchandise or passengers upon our canals 
 is a matter of public concern, and in which the public have a deep 
 interest, does not admit of doubt. It is a familiar maxim that com- 
 petition is the life of trade. It follows that whatever destroys, or 
 even relaxes, competition in trade is injurious, if not fatal, to it." 
 The same question came up a second time in Stanton v. Allen, 5 
 Denio, 434, and was decided the same way. In the course of its 
 opinion the court said: "As these canals are the property of the 
 state, constructed at great expense, as facilities to trade and com- 
 merce, and to foster and encourage agriculture, and are, at the same 
 time, a munificent source of revenue, whatever concerns their employ- 
 ment and usefulness deeply involves the interests of the whole state." 
 The fostering and protection of commerce was, even in ancient 
 times, a favorite object of English law (Chit. Prerog. 102); and 
 this author states that the " superintendence and care of commerce, 
 on the success of which so materially depends the wealth and pros- 
 perity of the nation, are in various cases allotted to the king by the 
 constitution," and many governmental powers vested in the sovereign 
 in England have since our Revolution devolved on the legislatures 
 of the states. The statutes of England in earlier time were full of 
 oppressive commercial regulations, now, happily, to a great extent 
 abrogated; but that the interests of commerce are matters of public 
 concern all states and governments have fully recognized. 
 
 The third element of publicity which tends to distinguish the 
 business of elevating grain from general commercial pursuits is the 
 practical monopoly which is or may be connected with its prosecu- 
 tion. In the city of Buffalo the elevators are located at the junction 
 of the canal with Lake Erie. The owners of grain are compelled to 
 use them in transferring cargoes. The area upon which it is practi- 
 cable to erect them is limited. The structures are expensive, and the 
 circumstances afford great facility for combination among the owners 
 of elevators to fix and maintain an exorbitant tariff of charges, and 
 to bring into the combination any new elevator which may be erected, 
 and employ it or leave it unemployed, but in either case permit it to 
 share in the aggregate earnings. It is evident that if such a combi- 
 nation in fact exists the principle of free competition in trade is 
 excluded. The precise object of the combination would be to prevent 
 competition. The result of such a combination would necessarily be 
 to subject the lake vessels and canal-boats to an}' exaction which the 
 elevator owners might see fit to impose for the service of the elevator, 
 and the elevator owners would be able to levy a tribute on the com- 
 munity, the extent of which would be limited only by their discretion. 
 
 4
 
 50 PEOPLE V. BUDD. 
 
 It is upon these various circumstances that the court is called upon 
 to determine whether the legislature may interfere and regulate the 
 charges of elevators. It is purely a question of legislative power. 
 If the power to legislate exists the court has nothing to do with the 
 policy or wisdom of the interference in the particular case, or with 
 the question of the adequacy or inadequacy of the compensation 
 authorized. "This court," said Chase, C. J., in the License Tax 
 Cases, 5 Wall. 469, " can know nothing of public policy, except 
 from the constitution and the laws, and the course of administration 
 and decision. It has no legislative powers. It cannot amend or 
 modify any legislative acts. It cannot examine questions as expe- 
 dient or inexpedient, as politic or impolitic. Considerations of that 
 sort must, in general, be addressed to the legislature. Questions 
 of policy determined there are concluded here." Can it be said, in 
 view of the exceptional circumstances, that the business of elevating 
 grain is not " affected with a public interest," within the language of 
 Lord Hale, or that the case does not fall within the principle which 
 permits the legislature to regulate the business of common carriers, 
 ferrymen, innkeepers, hackmen, and the interest on the use of money? 
 It seems to us that speculative, if not fanciful, reasons have been 
 assigned to account for the right of legislative regulation in these 
 and other cases. It is said that the right to regulate the charges of 
 hackmen springs from the fact that they are assigned stands in the 
 public streets; that the legislature may regulate the toll on ferries 
 because the right to establish a ferry is a franchise, and therefore 
 the business is subject to regulation; that the right to regulate wharf- 
 age rested upon the permission of the sovereign to extend wharves 
 into the beds of navigable streams, the title to which was in the 
 sovereign ; that the right to regulate the interest on the use of money 
 sprung from the fact that taking interest was originally illegal at 
 common law, and that where the right was granted by statute it was 
 taken subject to regulation by law. The plain reason, we think, why 
 the charges of hackmen and ferrymen were made subject to public 
 regulation is that they were common carriers. The reason assigned 
 for the right to regulate wharfage in England overlooks the fact that 
 the title to the beds of navigable streams was frequently vested in a 
 subject, and was his private property, subject to certain public 
 rights, as the right of navigation, and no distinction as to the power 
 of public regulation is suggested in the ancient books between 
 wharves built upon the beds of navigable waters, the title to which 
 was in the sovereign, and wharves erected upon navigable streams, 
 the beds of which belonged to a subject. The obligation of the 
 owner of the only wharf in a newly erected port to charge only reas- 
 onable wharfage is placed by Lord Hale on the ground of a virtual, 
 as distinguished from a legal, monopoly. The reason assigned for 
 the right to regulate interest takes no account of the fact that the 
 prohibition by the ancient common law to take interest at all was a 
 regulation, and this manifestly did not rest upon any benefit con-
 
 PEOPLE V. BUDD. 51 
 
 ferred on the lenders of money. It was a regulation springing from 
 a supposed public interest, and was peculiarly oppressive on a certain 
 class. A law prohibiting the taking of interest on the use of money 
 would now be deemed a violation of a right of property. But the 
 material point is that the prohibition, as well as the regulation, of 
 interest, was based upon public policy, and the present conceded right 
 of regulation does not have its foundation in any grant or privilege 
 conferred by the sovereign. The attempts made to place the right 
 of public regulation in these cases upon the ground of special priv- 
 ilege conferred by the public on those affected cannot, we think, be 
 supported. The underlying principle is that business of certain 
 kinds holds such a peculiar relation to the public interests that there 
 is superinduced upon it the right of public regulation. "We rest the 
 power of the legislature to control and regulate elevator charges 
 on the nature and extent of the business, the existence of a virtual 
 monopoly, the benefit derived from the canal, creating the business 
 and making it possible, the interest to trade and commerce, the rela- 
 tion of the business to the prosperity and welfare of the state, and 
 the practice of legislation in analogous cases. These circumstances 
 collectively create an exceptional case, and justify legislative 
 regulation. 
 
 The case of Munii v. Illinois has been frequently cited with ap- 
 proval by courts in other states. Nash v. Page, 80 Ky. 539; Hockett 
 v. State, 105 Ind. 250; Telephone Co. v. Telegraph Co., 6G Md. 399; 
 Davis v. State, 68 Ala. 58. In Nash v. Page it was held, upon the 
 doctrine of the Munu Case, that warehousemen, for the public sale 
 and purchase of tobacco in Louisville, exercised a public business, 
 and assumed obligations to serve the entire public, and could not 
 exclude persons from buying or selling tobacco in their warehouses 
 who were not members of the board of trade. In Hockett v. State 
 it was held that the relations which telephone companies have assumed 
 towards the public imposed public obligations, and that all the in- 
 struments and appliances used by telephone companies in the prose- 
 cution of the business were, in legal contemplation, devoted to public 
 use. In Telegraph Co. v. Telephone Co. legislation prohibiting 
 discrimination in the business of telegraphing was upheld on the 
 doctrine of the Munn Case. The criticism to which the Munn Case 
 has been subjected has proceeded mainly on a limited and strict 
 construction and definition of the police power. The ordinary sub- 
 jects upon which it operates are well understood. It is most fre- 
 'quuntly exerted in the maintenance of public order, the protection of 
 the public health and public morals, and in regulating mutual rights 
 of property, and the use of property, so as to prevent uses by one of 
 his property to the injury of the property of another. These are 
 instances of its exercise, but they do not bound the sphere of its 
 operation. In the King Case, 110 N. Y. 418, it was given a much 
 broader scope, and was held to be efficient to prevent discrimination 
 on the ground of race and color in places opened for public enter-
 
 52 PEOPLE V. BUDD. 
 
 tainment. In that case the owner of the skating-rink derived no 
 special privilege or protection from the state. The public held no 
 right, in any legal sense, to resort to his premises. His permission, 
 except for the public interest involved, was revocable as to the whole 
 community or any individual citizen. But it was held that so long 
 as he devote'd his place to purposes of public entertainment he sub- 
 jected it to public regulations. There is little reason, under our 
 system of government, for placing a close and narrow interpretation 
 on the police power, or in restricting its scope so as to hamper the 
 legislative power in dealing with the varying necessities of society, 
 and the new circumstances as they arise, calling for legislative inter- 
 vention in the public interest. Life, liberty, and property have a 
 substantial protection against serious invasion by the legislature in 
 the traditions of the English-speaking race, and a pervading public 
 sentiment which is quick to resent any substantial encroachment upon 
 personal freedom or the rights of property. In no country is the 
 force of public opinion so direct and imperative as in this. The 
 legislature may transgress the principles of the Constitution. It 
 has done so in the past, and it may be expected that it will some- 
 times do so in the future. But unconstitutional enactments have 
 generally been the result of haste or inadvertence, or of transient and 
 unusual conditions in times of public excitement which have been 
 felt and responded to in the halls of legislation. The framers of the 
 government wisely interposed the judicial power, and invested it 
 with the prerogative of bringing every legislative act to the test of 
 the Constitution. But no serious invasion of constitutional guaran- 
 ties by the legislature can for a long time withstand the searching 
 influence of public opinion, which sooner or later is sure to come to 
 the side of law and order and justice, however much for a time it may 
 have been swayed by passion or prejudice, or whatever aberration 
 may have marked its course. So, also, in that wide range of legis- 
 lative powers over persons and property which lie outside of the pro- 
 hibitions of the Constitution, and which inhere of necessity in the 
 very idea of government, by which persons and property may be 
 affected without transgressing constitutional guaranties, there is a 
 restraining and corrective power in public opinion which is a safe- 
 guard of tremendous force against unwise and impolitic legislation, 
 hampering individual enterprise, and checking the healthful stimulus 
 of self-interest, which are the life-blood of commercial progress. 
 The police power may be used for illegitimate ends, although no 
 court can say that the fundamental law has been violated. There is 
 a remedy at the polls, and it is an efficient remedy if, at the bottom, 
 the legislation under it is oppressive and unjust. The remedy by 
 taking away the power of the legislature to act at will would, indeed, 
 be radical and complete. But the moment the police power is de- 
 stroyed or curbed by fixed and rigid rules a danger is introduced into 
 our system which would, we think, be far greater than results from 
 an occasional departure by the legislature from correct principles of
 
 PEOPLE V. BUDD. 53 
 
 government. We here conclude our examination of the important 
 question presented by this case. The division of opinion in this 
 and other courts is evidence of the difficulty which surrounds it. 
 But it is ever to be remembered that a statute must stand so long :i> 
 any reasonable doubt can be indulged in favor of its constitution- 
 ality. We are of opinion that the statute of 1888 is constitutional, 
 as a whole, and that although it may comprehend cases which, stand- 
 ing alone, might not justify legislative interference, yet they must be 
 governed by the general rule enacted by the legislature. The judg- 
 ment should be affirmed. 
 
 Ruger, C. J., and Earl, Danforth, and Finch, JJ., concur. 
 
 Peckham, J., dissenting. 1 I contend that, within the subject now 
 under review, the meaning of the phrase, " devoting one's prop- 
 erty to a public use," ... is that such devotion or dedication is 
 made when by reason of it the public thereafter have a legal right to 
 resort to the property, and to use it for a reasonable compensation, 
 or for such as the law provides, or else where some privilege or right 
 is granted by the government, in which case the right of limitation 
 is based upon and is really a part consideration for the grant. In 
 the one case the legal right to resort to and use the property by the 
 public, so long as the owner chooses to remain in the business, 
 springs from this dedication, and it is the criterion that is to decide 
 the question whether the property has or has not been thus dedicated ; 
 and this right does not spring into existence merely because the 
 business is such as interests a great number of the public, or because 
 it is of large extent, or because there is no other property at that 
 place which is or conveniently may be devoted to the same kind of 
 business; while, in the other case, the right of limitation exists 
 because some privilege or franchise has been granted to the owner 
 by the sovereign power, an acceptance of which carries with it the 
 burden of submitting to the demand for the service. As has been 
 said, the right to regulate places of public amusement, such as thea- 
 tres and the like, comes from another branch of the police power, 
 and, as I believe, does not extend to the power to limit prices. The 
 right to make use of the owner's property, by reason of a dedication, 
 has been held to have been created in the exceptional cases of a com- 
 mon carrier, the keeper of a common inn, and a common or public 
 wharfinger, and perhaps in some others. These are exceptional 
 cases, for they trench upon the well-grounded principle that no man 
 can be compelled to enter into business relations with another unless 
 the party carrying on the business shall have received some privilege, 
 right, or franchise from the sovereign power, when such compulsion 
 may be annexed to the grant. The principle should not be 
 extended. . . . 
 
 There can be no legal objection to the power to direct the weight 
 of a loaf of bread, for that is a mere police regulation, interfering 
 
 1 Part of this opinion is omitted. — Ed.
 
 54 PEOPLE V. BUDD. 
 
 with no man's real liberty, and it is the same as if the length of a 
 yard were declared by law, or the weight of a ton. But I deny the 
 right of any legislature in this country to limit the price for which 
 an individual baker shall sell his bread per loaf, or the price per ton 
 for which a coal dealer shall sell his coal, or the price which a tailor 
 shall charge for his coat, or the shoemaker for his shoes. A common 
 carrier exercises, it has been stated, a kind of public office, and 
 when a man devotes himself to such a calling, and holds himself out 
 to the public as a common carrier, he thereby grants to the public 
 such an interest in his business that each individual has the legal 
 right to demand the carriage of his property by the carrier upon pay- 
 ment or tender of a reasonable compensation for carriage, in the 
 absence of a legal regulation thereof. Allen v. Sackrider, 37 N. Y. 
 341. He thus becomes a common carrier because of this dedication 
 to the general public, and this legal right of the public to demand 
 this service springs from such dedication. The same is true of a 
 public wharfinger or the keeper of a common inn. They were all 
 called " common " in their several occupations, and were common 
 because they held themselves out as such to the public, and, as was 
 said in some of the old books, entered into a general contract with 
 the whole public to do the work, and hence arose the right of the 
 public to call upon them to fulfil this contract. No such right of 
 access to the premises of defendants exists, and no such right to 
 demand the use of their property can be, or, as I understand, is 
 pretended. But unless the innkeeper was the keeper of a common 
 inn, or the carrier a common one, or the wharfinger was a public one, 
 no matter what the extent of their business, or how large a number 
 of the public were entertained by them, as the public had no right of 
 resort to their premises, or to demand transportation for or the care 
 of their goods, or entertainment at their house, the right of regulation 
 did not exist as to the compensation they should receive. The cases 
 are, as has been said, exceptions to the general rule that no man can 
 be compelled to have business relations with another. . . . 
 
 The disposition of legislatures to interfere in the ordinary con- 
 cerns of the individual, as evidenced by the laws enacted by parlia- 
 ments and legislatures from the earliest times, and the futility of 
 such interference to accomplish the purposes intended, have been the 
 subject of remark by some of the ablest of English-speaking observ- 
 ers. Buckle, in his History of Civilization in England, in speaking 
 of the course of English legislation, says: "Every great reform 
 which has been effected has consisted, not in doing something new, 
 but in undoing something old. The most valuable additions made 
 to legislation have been enactments destructive of preceding legisla- 
 tion, and the best laws which have been passed have been those by 
 which some former laws have been repealed." And again: " We find 
 laws to regulate wages; laws to regulate prices; laws to regulate 
 profits; laws to regulate the interest of money; custom-house arrange- 
 ments of the most vexatious kind, aided by a complicated scheme,
 
 PEOPLE V. BUDD. 55 
 
 which was well called the ' slidiug-scale, ' — a scheme of such per- 
 verse ingenuity that the duties constantly varied on the same article, 
 and no man could calculate beforehand what he would have to pay. 
 A system was organized, and strictly enforced, of interference with 
 markets, interference with manufacturers, interference with machin- 
 ery, interference even with shops. In other words, the industrious 
 classes were robbed in order that industry might thrive.'' Volume 
 I. pp. 199, 200, etc. The legislation under review is of the same 
 general nature. To uphold legislation of this character is to provide 
 the most frequent opportunity for arraying class against class; and, 
 in addition to the ordinary competition that exists throughout all 
 industries, a new competition will be introduced, that of competition 
 for the possession of the government, so that legislative aid may be 
 given to the class in possession thereof in its contests with rival 
 classes or interests in all sections and corners of the industrial world. 
 We shall have a recurrence of legislation which, it has been sup- 
 posed, had been outgrown not only as illegal, but as wholly useless 
 for any good effect, and only powerful for evil. Contests of such a 
 nature are productive only of harm. The only safety for all is to 
 uphold, in their full vigor, the healthful restrictions of our Constitu- 
 tion, which provide for the liberty of the citizen, and erect a safe- 
 guard against legislative encroachments thereon, whether exerted 
 to-day in favor of what is termed the "laboring interests," or to- 
 morrow in favor of the capitalists. Both classes are under its pro- 
 tection, and neither can interfere with the liberty of the citizen, with- 
 out a violation of the fundamental law. In my opinion, the court 
 should not strain after holding such specie3 of legislation constitu- 
 tional. It is so plain an effort to interfere with what seems to me the 
 most sacred rights of property and the individual liberty of contract 
 that no special intendment in its favor should be indulged in. It will 
 not, as seems to me plain, even achieve the purposes of its authors. 
 I believe it vain to suppose that it can be other than of the most 
 ephemeral nature, at its best, or that it will have any real virtue in 
 altering the general laws of trade, while, on the other hand, it may 
 ruin or very greatly impair the value of the property of wholly inno- 
 cent persons. If the compensation limited by the act is not sufficient 
 to permit the average rate of profit upon the capital invested, it will 
 result either in its evasion, or else the work will not be done, and the 
 capital employed will seek other channels where such average rate 
 can be realized, or the property will become of little or no value. 
 If the compensation be sufficient, the same result aimed at would 
 soon follow from the general laws of trade, from the law of supply 
 and demand, and the general cost of labor and materials. 
 
 Every one having the same right to build an elevator or warehouse 
 that these defendants have, and upon its completion to employ it in 
 the same business, if the rate of profit is above the average, capital, 
 if allowed absolute freedom and legal protection, will flow into the 
 business until there is enough invested to do all or more than all the
 
 56 PEOPLE V. BUDD. 
 
 work offered, and then, by the competition of capital, the rate of 
 compensation would come down to the average. Such, at least, 
 would be the tendency, and it could only be averted by combination 
 among the owners of the property, which could not be long sustained 
 in the face of perfect freedom to all to invest in such undertakings. 
 That they are expensive, and require the outlay of a large amount of 
 money to build and maintain them, and that the warehouses now 
 existing may have an advantage in location, does not, as has been 
 shown, make them a monopoly, but simply tends to make the inevi- 
 table result a trifle more slow in its approach than in other cases 
 requiring a smaller outlay. If it be said that there is already a super- 
 abundance of elevators, more than can be or are used, and that some 
 of them lie idle while others do the work, and they all share in the 
 profit, if the profit exceed what the owners of the grain or those 
 engaged in its transportation can afford to pay, the result will then 
 be that the persons so engaged will cease from that kind of work, or 
 else the owners of the elevators will reduce their charges. This re- 
 duction of charges will most surely take place before the owners of 
 the elevators would allow the business to pass out of existence, pro- 
 vided the compensation after such reduction would enable them to 
 realize the average rate of profit for their capital; while, if it would 
 not, it would be conclusive proof that the business of transportation 
 of grain or other commodities, where the boats were to be loaded or 
 unloaded by elevators, could no longer be conducted with profit to all 
 parties, and some new way would have to be discovered and put in 
 practice; for capital will not seek investment or employment where 
 the average rate of profit cannot be commanded, and men will not 
 continue to transport grain or any other commodity at a loss, or upon 
 such terms that they cannot earn a livelihood. If this is the case in 
 the transportation of grain by the canal, owing to the competition of 
 railroads and their ability to transport it cheaply and rapidly then 
 that fact must be faced. Such a business cannot be maintained for 
 any length of time by legislation, at the expense either of capital or 
 of the transporter. Each must earn the average profit in the same 
 general line of business, or the business must, from economical 
 reasons, cease. The legislation under consideration is not only 
 vicious in its nature, communistic in its tendency, and, in my belief, 
 wholly inefficient to permanently obtain the result aimed at, but, for 
 the reasons already given, it is an illegal effort to interfere with the 
 lawful privilege of the individual to seek and obtain such compen- 
 sation as he can for the use of his own property, where he neither 
 asks nor receives from the sovereign power any special right or 
 immunity not given to and possessed by every other citizen, and 
 where he has not devoted his property to any public use, within the 
 meaning of the law. The orders of the general and special terms 
 of the Supreme Court should therefore be reversed, and the relators 
 discharged. 
 
 Gray, J., concurs.
 
 BUDD V. NEW YORK. 57 
 
 A writ of error was brought in the Supreme Court of the United 
 States. Mr. Justice Blatcuford delivered the opinion of the court. 1 
 
 This court, in Munrt v. Illinois, the opinion being delivered by Chief 
 Justice Waite, and there being a published dissent by only two justices, 
 considered carefully the question of the repugnancy of the Illinois 
 statute to the Fourteenth Amendment. It said, that under the powers 
 of government inherent in every sovereignty, "the government regu- 
 lates the conduct of its citizens one towards another, and the manner 
 in which each shall use his own property, when such regulation be- 
 comes necessary for the public good ;" and that, "in their exercise it 
 has been customary in England from time immemorial, and in this 
 country from its first colonization, to regulate ferries, common carriers, 
 hackmen, bakers, millers, wharfingers, innkeepers, etc., and in so 
 doing to fix a maximum of charge to be made for services rendered, 
 accommodations furnished, and articles sold." It was added: "To 
 this day, statutes are to be found in many of the States upon some or 
 all these subjects ; and we think it has never yet been successfully 
 contended that such legislation came within any of the constitutional 
 prohibitions against interference with private property." It announced 
 as its conclusions that, down to the time of the adoption of the Four- 
 teenth Amendment, it was not supposed that statutes regulating the 
 use, or even the price of the use, of private property necessarily de- 
 prived an owner of his property without due process of law ; that, 
 when private property was devoted to a public use, it was subject to 
 public regulation ; that Munn and Scott, in conducting the business of 
 their warehouse, pursued a public employment and exercised a sort of 
 public office, in the same sense as did a common carrier, miller, ferry- 
 man, innkeeper, wharfinger, baker, cartman or hackney coachman ; 
 that they stood in the very gateway of commerce and took toll from 
 all who passed ; that their business tended "to a common charge," 
 and had become a thing of public interest and use ; that the toll on the 
 grain was a common charge ; and that, according to Lord Chief Justice 
 Hale, every such warehouseman " ought to be under a public regula- 
 tion, viz." that he " take but reasonable toll." 
 
 This court further held in Munn v. Illinois, that the business in 
 question was one in which the whole public had a direct and positive 
 interest; that the statute of Illinois simply extended the law so as to 
 meet a new development of commercial progress ; that there was no 
 attempt to compel the owners of the warehouses to grant the public an 
 interest in their property, but to declare their obligations if they used 
 it in that particular manner ; that it mattered not that Munn and Scott 
 had built their warehouses and established their business before the 
 regulations complained of were adopted ; that, the property being 
 clothed with a public interest, what was a reasonable compensation for 
 its use was not a judicial, but a legislative question ; that, in countries 
 where the common law prevailed, it had been customary from time 
 
 1 An extract from the opinion only is given. — Ed. 
 
 N
 
 58 BUDD V. NEW YORK. 
 
 immemorial for the legislature to declare what should be a reasonable 
 compensation under such circumstances, or to fix a maximum beyond 
 which any charge made would be unreasonable ; that the warehouses 
 of Munn and Scott were situated in Illinois and their business was 
 carried on exclusively in that State ; that the warehouses were no more 
 necessariby a part of commerce itself than the dray or the cart by 
 which, but for them, grain would be transferred from one railroad 
 station to another ; that their regulation was a thing of domestic con- 
 cern ; that, until Congress acted in reference to their interstate rela 
 tions, the State might exercise all the powers of government over 
 them, even though in so doing it might operate indirectly upon com- 
 merce outside its immediate jurisdiction ; and that the provision of § 9 
 of article 1 of the Constitution of the United States operated only as 
 a limitation of the powers of Congress, and did not affect the States in 
 the regulation of their domestic affairs. The final conclusion of the 
 court was, that the Act of Illinois was not repugnant to the Constitu- 
 tion of the United States; and the judgment was affirmed. 
 
 In Sluicing Fund Cases, 99 U. S. 700, 747, Mr. Justice Bradley, 
 who was one of the justices who concurred in the opinion of the court 
 in Munn v. Illinois, speaking of that case, said: " The inquiry there 
 was as to the extent of the police power in cases where the public 
 interest is affected ; and we held that when an employment or business 
 becomes a matter of such public interest and importance as to create 
 a common charge or burden upon the citizen ; in other words, when it 
 becomes a practical monopoly, to which the citizen is compelled to 
 resort, and by means of which a tribute can be exacted from the com- 
 munity*, it is subject to regulation by the legislative power." Although 
 this was said in a dissenting opinion in Sinking Fund Cases, it shows 
 what Mr. Justice Bradley regarded as the principle of the decision in 
 Munn v. Illinois. 
 
 In Spring Valley Water Works v. Schottler, 110 U. S. 347, 354, 
 this court said : -'That it is within the power of the government to 
 regulate the prices at which water shall be sold by one who enjoys a 
 virtual monopol}* of the sale, we do not doubt. That question is 
 settled by what was decided on full consideration in Munn v. Illinois, 
 94 U. S. 113. As was said in that case, such regulations do not de- 
 prive a person of his propert}* without due process of law." 
 
 In Wabash &c. Railway Co. v. Illinois, 118 U. S. 557, 569, Mr. 
 Justice Miller, who had concurred in the judgment in Munn v. Illinois, 
 referred, in delivering the opinion of the court, to that case, and said: 
 " That case presented the question of a private citizen, or unincorpo- 
 rated partnership, engaged in the warehousing business in Chicago, 
 free from any claim of right or contract under an Act of Incorporation 
 of an}* State whatever, and free from the question of continuous trans- 
 portation through several States. And in that case the court was pre- 
 sented with the question, which it decided, whether any one engaged 
 in a public business, in which all the public had a right to require his
 
 BUDD V. NEW YORK. 59 
 
 service, could be regulated by Acts of the Legislature in the exercise of 
 this public function and public dut} - , so far as to limit the amount of 
 charges that should be made for such services." 
 
 In Dow v. Beidelman, 125 U. S. 680, 686, it was said bj' Mr. Justice 
 Gray, in delivering the opinion of the court, that in Munn v. Illin ris 
 the court, after affirming the doctrine that by the common law carriers 
 or other persons exercising a public employment could not charge 
 more than a reasonable compensation for their services, and that it is 
 within the power of the legislature " to declare what shall be a reason- 
 able compensation for such services, or perhaps, more properly speak- 
 ing, to fix a maximum beyond which any charge made would be un- 
 reasonable," said that to limit the rate of charges for services rendered 
 in the public employment, or for the use of property in which the pub- 
 lic has an interest, was only changing a regulation which existed be- 
 fore, and established no new principle in the law, but only gave a new 
 effect to an old one. 
 
 In Chicago &c. Railway Co. v. Minnesota, 134 U. S. 418, 4G1, it 
 was said by Mr. Justice Bradley, in his dissenting opinion, in which 
 Mr. Justice Gray and Mr. Justice Lamar concurred, that the decision 
 of the court in that case practically overruled Munn v. Illinois; but 
 the opinion of the court did not say so, nor did it refer to Mann v. 
 Illinois; and we are of opinion that the decision in the case in 134 
 U. S. is, as will be hereafter shown, quite distinguishable from the present 
 cases. 
 
 It is thus apparent that this court has adhered to the decision in 
 Munn v. Illinois and to the doctrines announced in the opinion of the 
 court in that case ; and those doctrines have since been repeatedly en- 
 forced in the decisions of the courts of the States. 
 
 In Railway v. Railway, 30 Ohio St. G04, 616, in 1877, it was said, 
 citing Munn v. Illinois : " When the owner of property devotes it to 
 a public use, he, in effect, grants to the public an interest in such use, 
 and must, to the extent of the use, submit to be controlled by the pub- 
 lic, for the common good, as long as he maintains the use." That was 
 a decision by the Supreme Court Commission of Ohio. 
 
 In State v. Gas Company, 34 Ohio St. 57*2, 582, in 1878, Munn v. 
 Illinois was cited with approval, as holding that where the owner of 
 property devotes it to a use in which the public have an interest, he in 
 effect grants to the public an interest in such use, and must, to the 
 extent of that interest, submit to be controlled by the public, for the 
 common good, so long as he maintains the use; and the court added 
 that in Munn v. Illinois the principle was applied to warehousemen 
 engaged in receiving and storing grain ; that it was held that their 
 rates of charges were subject to legislative regulation ; and that the 
 principle applied with greater force to corporations when they were 
 invested with franchises to be exercised to subserve the public interest. 
 
 The Supreme Court of Illinois, in Ruggles v. People, 91 Illinois, 
 256, 262, in 1878, cited Munn v. People, 69 Illinois, 80, which was
 
 (JO BUDD V. NEW YORK. 
 
 affirmed in Munn v. Illinois, as holding that it was competent for the 
 General Assembly to fix the maximum charges b} r individuals keeping 
 public warehouses for storing, handling and shipping grain, and that, 
 too, when such persons had derived no special privileges from the 
 State, but were, as citizens of the State, exercising the business of 
 storing and handling grain for individuals. 
 
 The Supreme Court of Alabama, in Davis v. The State, 68 Ala- 
 bama, 58, in 1880, held that a statute declaring it unlawful, within 
 certain counties, to transport or move, after sunset and before sunrise 
 of the succeeding day, any cotton in the seed, but permitting the owner 
 or purchaser to remove it from the field to a place of storage, was not 
 unconstitutional. Against the argument that the statute was such a 
 despotic interference with the rights of private propert}- as to be tan- 
 tamount, in its practical effect, to a deprivation of ownership " without 
 due process of law," the court said that the statute sought only to 
 regulate and control the transportation of cotton in one particular con- 
 dition of it, and was a mere police regulation, to which there was no 
 constitutional objection, citing Munn v. Illinois. It added, that the 
 object of the statute was to regulate traffic in the staple agricultural 
 product of the State, so as to prevent a prevalent evil, which, in the 
 opinion of the law-making power, might do much to demoralize agri- 
 cultural labor and to destroy the legitimate profits of agricultural pur- 
 suits, to the public detriment, at least within the specified territory. 
 
 In Baker v. The State, 54 "Wisconsin, 368, 373, in 1882, Munn v. 
 Illinois was cited with approval by the Supreme Court of Wisconsin, 
 as holding that the Legislature of Illinois had power to regulate public 
 warehouses, and the warehousing and inspection of grain within that 
 State, and to enforce its regulations by penalties, and that such legis- 
 lation was not in conflict with an}' provision of the Federal Constitution. 
 
 The Court of Appeals of Kentucky, in 1882, in Nash v. Page, 80 
 Kentucky, 539, 545, cited Munn v. Illinois, as applicable to the case 
 of the proprietors of tobacco warehouses in the city of Louisville, and 
 held that the character of the business of the tobacco warehousemen 
 was that of a public employment, such as made them subject, in their 
 charges and their mode of conducting business, to legislative regulation 
 and control, as having a practical monopoly of the sales of tobacco at 
 auction. 
 
 In 1884, the Supreme Court of Pennsylvania, in Girard Storage Co. 
 v. Southwark Co., 105 Penn. St. 248, 252, cited Munn v. Illinois as 
 involving the rights of a prnvate person, and said that the principle 
 involved in the ruling of this court was, that where the owner of such 
 property as a warehouse devoted it to a use in which the public had an 
 interest, he in effect granted to the public an interest in such use, and 
 must, therefore, to the extent thereof, submit to be controlled by the 
 public for the common good, as long as he maintained that use. 
 
 In Sawyer v. Davis, 136 Mass. 239. in 1884, the Supreme Judicial 
 Court of Massachusetts said that nothing is better established than the
 
 BUDD V. NEW YORK. 61 
 
 power of the legislature to make what are called police regulations, 
 declaring in what manner property shall be used and enjoyed and busi- 
 ness carried on, with a view to the good order and benefit of the com- 
 munity, even though they may interfere to some extent with the full 
 enjoyment of private property, and although no compensation is given 
 to a person so inconvenienced ; and Munn v. Illinois was cited as 
 holding that the rules of the common law which had from time to time 
 been established, declaring or limiting the right to use or enjoy prop- 
 erty, might themselves be changed as occasion might require. 
 
 The Supreme Court of Indiana, in 1885, in Brechbill v. Randall, 
 102 Indiana, 528, held that a statute was valid which required persons 
 selling patent rights to file with the clerk of the county a copy of the 
 patent, with an affidavit of genuineness and authority to sell, on the 
 ground that the State had power to make police regulations for the pro- 
 tection of its citizens against fraud and imposition ; and the court 
 cited Munn v. Illinois as authority. 
 
 The Supreme Court of Nebraska, in 1885, in Webster Telephone 
 Case, 17 Nebraska, 12(5, held that when a corporation or person as- 
 sumed and undertook to supply a public demand, made necessary by 
 the requirements of the commerce of the country, such as a public tele- 
 phone, such demand must be supplied to all alike, without discrimina- 
 tion ; and Munn v. Illinois was cited by the prevailing part}' and by 
 the court. The defendant was a corporation, and had assumed to act 
 in a capacity which was to a great extent public, and had undertaken 
 to satisfy a public want or necessity, although it did not possess any 
 special privileges by statute or any monopoly of business in a given 
 territory ; yet it was held that, from the very nature and character of 
 its business, it had a monopoly of the business which it transacted. 
 The court said that no statute had been deemed necessary to aid the 
 courts in holding that where a person or company undertook to supply 
 a public demand, which was " affected with a public interest," it must 
 supply all alike who occupied a like situation, and not discriminate in 
 favor of or against any. 
 
 In Stone v. Yazoo & Miss. Valley R. Co., 62 Mississippi, G07, G39, 
 the Supreme Court of Mississippi, in 1885, cited Munn v. Illinois as 
 deciding that the regulation of warehouses for the storage of grain, 
 owned by private individuals, and situated in Illinois, was a thing of 
 domestic concern and pertained to the State, and as affirming the right 
 of the State to regulate the business of one engaged in a public emplo}*- 
 ment therein, although that business consisted in storing and trans- 
 ferring immense quantities of grain in its transit from the fields of 
 production to the markets of the world. 
 
 In Hockett v. The State, 105 Indiana, 250, 258, in 1885, the Su- 
 preme Court of Indiana held that a statute of the State which pre- 
 scribed the maximum price which a telephone company should charge 
 for the use of its telephones was constitutional, and that in legal con- 
 templation all the instruments and appliances used by a telephone
 
 62 BUDD V. NEW YORK. 
 
 company in the transaction of its business were devoted to a public 
 use, and the property thus devoted became a legitimate subject of 
 legislative regulation. It cited Munn v. Illinois as a leading case in 
 support of that proposition, and said that although that case had been 
 the subject of comment and criticism, its authority as a precedent re- 
 mained unshaken. This doctrine was confirmed in Central Union 
 Telephone, Co. v. Bradbury, 106 Indiana, 1, in the same year, and in 
 Central Union Telephone Co. v. The State, 118 Indiana, 194, 207, in 
 1888, in which latter case Munn v. Illinois was cited b} T the court. 
 
 In Chesap>eake & Potomac Telephone Co. v. Balto. & Ohio Tele- 
 graph Co., 66 Maryland, 399, 414, in 1886, it was held that the tele- 
 graph and the telephone were public vehicles of intelligence, and those 
 who owned or controlled them could no more refuse to perform im- 
 partially the functions which they had assumed to discharge than a 
 railway company, as a common carrier, could rightfully refuse to per- 
 forin its duty to the public; and that the legislature of the State had 
 full power to regulate the services of telephone companies, as to the 
 parties to whom facilities should be furnished. The court cited Munn 
 v. Illinois, and said that it could no longer be controverted that the 
 legislature of a State had full power to regulate and control, at least 
 within reasonable limits, public employments and property used in 
 connection therewith ; that the operation of the telegraph and the tele- 
 phone in doing a general business was a public employment, and the 
 instruments and appliances used were property devoted to a public use 
 and in which the public had an interest ; and that, such being the case, 
 the owner of the property thus devoted to public use must submit to 
 have that use and emplojment regulated by public authority for the 
 common good. 
 
 In the Court of Chancery of New Jersey, in 1889, in Delaware, &c. 
 Railroad Co. v. Central Stock -Yard Co., 45 N. J. Eq. 50, GO, it was 
 held that the legislature had power to declare what services warehouse- 
 men should render to the public, and to fix the compensation that 
 might be demanded for such services ; and the court cited Maun v. 
 Illinois as properly holding that warehouses for the storage of grain 
 must be regarded as so far public in their nature as to be subject to 
 legislative control, and that when a citizen devoted his property to a 
 use in which the public had an interest, he in effect granted to the 
 public an interest in that use, and rendered himself subject to control, 
 in that use, by the bod\ T politic. 
 
 In Zanesville v. Gas-Light Company, 47 Ohio St. 1. in 1889. it was 
 said by the Supreme Court of Ohio, that the principle was well estab- 
 lished, that where the owner of property devotes it to a use in which 
 the public have an interest, he in effect grants to the public an interest 
 in such use, and must to the extent of that interest submit to be con- 
 trolled by the public for the common good, as long as he maintains 
 the use; and that such was the point of the decision in Munn v. 
 Illinois.
 
 PORTLAND NATURAL GAS AND OIL CO. V. STATE. 63 
 
 We must regard the principle maintained in Munn v. Illinois as 
 firmly established, and we think it covers the present cases. 
 
 Judgment affirmed. 
 
 Brewer, J., gave a dissenting opinion, in which Field, J., and 
 Brown, J., concurred. 
 
 PORTLAND NATURAL GAS AND OIL CO. v. STATE. 
 
 Supreme Court of Indiana, 1893. 
 
 [135 Ind. 54: 34 iV. E. 81 S. J 
 
 Coffey, J. This was an action by the appellee against the appel- 
 lant to compel the latter, by mandamus, to supply the residence of 
 the relator with natural gas to be used as lights and fuel. It appears 
 from the complaint that the appellant is a corporation duly organized 
 under the laws of this state for the purpose, among others, of supply- 
 ing to those within its reach natural gas to be used for lights and 
 fuel. By permission of the common council, it has laid its pipes for 
 that purpose in the streets and alleys of the city of Portland, in this 
 state, and has pipes laid in Walnut Street of that city. The relator 
 resides on Walnut Street, on the line of one of the appellant's main 
 pipes. His house is properly and safely plumbed for the purpose of 
 obtaining natural gas. In May, 1890, the relator demanded of the 
 appellant gas service, and tendered to it the usual and proper charges 
 for such service; but it refused, by its officers, to furnish the gas 
 demanded, whereupon this suit was brought to compel it to furnish 
 the gas desired by the relator. The court overruled a demurrer to 
 the complaint. . . . 
 
 The vital question in the case relates to the right of the relator to 
 compel the appellant, by mandamus, to supply his dwelling-house 
 with natural gas for lights and fuel. There are cases which hold that 
 in the absence of a contract, express or implied, and where the 
 charter of the company contains no provision upon the subject, a gas 
 company is under no more obligation to continue to supply its cus- 
 tomers than the vendor of other merchandise, — among which is the 
 case of Com. v. Lowell Gaslight Co., 12 Allen, 75. But we think 
 that the better reason, as well as the weight of authority, is against 
 this holding. Mr. Beach, in his work on Private Corporations 
 (Volume II., § 835), says: "Gas companies, being engaged in a 
 business of a public character, are charged with the performance of 
 public duties. Their use of the streets, whose fee is held by the 
 municipal corporation in trust for the benefit of the public, has been 
 likened to the exercise of the power of eminent domain. Accordingly 
 a gas company is bound to supply gas to premises with which its 
 pipes are connected." Mr. Cook, in his work on Stock and Stock-
 
 64 PEOPLE V. CHICAGO AND ALTON RAILROAD. 
 
 holders and Corporation Law (section 674), says: "Gas companies, 
 also, are somewhat public in their nature, and owe a duty to supply 
 gas to all." To the same effect are the following adjudicated cases: 
 State v. Columbus Gaslight & Coke Co., 34 Ohio St. 572; New 
 Orleaus Gaslight Co. v. Louisiana Light & Heat Producing, etc., 
 Co., 115 U. S. 650; People v. Manhattan Gaslight Co., 45 Barb. 
 136; Gibbs v. Gas Co., 130 U. S. 396; Williams v. Gas Co., 52 
 Mich. 499 ; Gaslight Co. v. Richardson, 63 Barb. 437. Our general 
 assembly, recognizing the fact that natural gas companies were, in 
 a sense, public corporations, conferred upon them the right of emi- 
 nent domain by an act approved February 20, 1889 (Acts 1889, p. 
 22). It has often been held that mandamus is the proper proceed- 
 ing by which to compel a gas company to furnish gas to those entitled 
 to receive it. 8 Amer. & Eug. Enc. Law, pp. 1284-1289; People v. 
 Manhattan Gaslight Co., supra; Williams v. Gas Co., supra; Gas- 
 light Co. v. Richardson, supra. In view of these authorities, we are 
 constrained to hold that a natural gas company, occupying the streets 
 of a town or city with its mains, owes it as a duty to furnish those 
 who own or occupy the houses abutting on such street, where such 
 owners or occupiers make the necessary arrangements to receive it, 
 and comply with the reasonable regulations of such company, such 
 gas as they may require, and that, where it refuses or neglects to 
 perform such duty, it may be compelled to do so by writ of man- 
 d 'a id us. As to the sufficiency of an answer averring that the com- 
 pany had not a sufficient supply to furnish all those demanding gas, 
 we intimate no opinion, as no such defence was interposed in this 
 case. It follows that the complaint in this case states a cause of 
 action against the appellant, and that the court did not err in over- 
 ruling the demurrer thereto. Judgment affirmed. 1 
 
 PEOPLE v. CHICAGO AND ALTON RAILROAD. 
 
 Supreme Court of Illinois, 1889. 
 
 [130 III. 175: 22 A. E. 857.] 
 
 Bailey, J. This was a petition for a mandamus, brought by the 
 people of the state of Illinois, on the relation of the attornej'-general, 
 against the Chicago & Alton Railroad Company, to compel said com- 
 pany to establish and maintain a station for the receipt and discharge 
 of passengers and freight at Upper Alton, in Madison County. 2 . . . 
 
 To the petition the defendant interposed a general demurrer, which 
 was sustained by the court, and the attorney-general electing to abide 
 by his petition, final judgment was entered in favor of the defendant. 
 From that judgment the petitioners have appealed to this court. 
 
 1 Ace. Coy v. Gas Co.. 146 Ind. 655 ; 46 N. E. 17. 
 
 2 The recital of the petition is omitted. — Ed.
 
 PEOPLE V. CHICAGO AND ALTON KAILROAD. 65 
 
 There is, so far as we have been able to discover, no provision of 
 any statute which can be appealed to in support of the prayer of the 
 petition. Neither in the defendant's charter nor in any other act of 
 the general assembly does there seem to be any attempt to prescribe 
 the rules by which the defendant is to be governed in the location of 
 its freight and passenger stations, or to confer upon the Circuit Court 
 the power to interpose and direct as to their location. It i.> plain 
 that the act of 1877, the only one to which we are referred in this 
 connection, can have no application. That act provides "that all 
 railroad companies in this state, carrying passengers or freight, shall, 
 and they are hereby required to, build and maintain depots for the 
 comfort of passengers, and for the protection of shippers of freight, 
 where such railroad companies are in the practice of receiving and 
 delivering passengers and freight, at all towns and villages on the 
 line of their roads having a population of five hundred or more." 
 2 Starr & C. St. 1924. While it is true that Upper Alton is a town 
 having a population of more than 500, it affirmatively appears that 
 it is not a place where the defendant has been in the practice of re- 
 ceiving and delivering passengers and freight, and so is not within 
 the provisions of said act. The petition seeks to have the defendant 
 compelled to establish a station where none has heretofore existed, 
 while the statute merely requires the erection of suitable depot 
 buildings at places where the railway company has already located its 
 stations, and is in the practice of receiving and discharging passen- 
 gers and freight. In point of fact, the attorney-general, in his argu- 
 ment upon the rehearing, admits that there is no statute upon which 
 his prayer for a mandamus can be based; the position now taken by 
 him being that upon the facts alleged in the petition and admitted 
 by the demurrer, the legal duty on the part of the defendant to 
 establish a freight and passenger station on its lino of railway in the 
 town of Upper Alton arises by virtue of the principles of the common 
 law. 
 
 It is undoubtedly the rule that railway companies, in the absence of 
 statutory provisions limiting and restricting their powers, are vested 
 with a very broad discretion in the matter of locating, constructing, 
 and operating their railways, and of locating and maintaining their 
 freight and passenger stations. This discretion, however, is not 
 absolute, but is subject to the condition that it must be exercised 
 in good faith, and with a due regard to the necessities and conven- 
 ience of the public. Railway companies, though private corporations, 
 are engaged in a business in which the public have an interest, aud 
 «in which such companies are public servants, and amenable as such. 
 This doctrine has been repeatedly announced by this and other 
 courts. Thus, in Marsh v. Railroad Co., 64 111. 414, which was a 
 bill for the specific performance of a contract by which the railway 
 company agreed to locate its passenger and freight depots at a par- 
 ticular point in a certain town, and at no other point in said town, 
 
 5
 
 66 PEOPLE V. CHICAGO AND ALTON RAILROAD. 
 
 we said: "This is not a case which concerns merely the private inter- 
 ests of two suitors. It is a matter where the public interest is in- 
 volved. Railroad compauies are incorporated by authority of law, 
 not for the promotion of mere private ends, but in view of the public 
 good they subserve. It is the circumstance of public use which 
 justifies the exercise on their behalf of the right of eminent domain 
 in the taking of private property for the purpose of their construction. 
 They have come to be almost a public necessity; the general welfare 
 being largely dependent upon these modes of intercommunication, 
 and the manner of carrying on their operations." In the same case, 
 in holding that the contract there in question ought not to be specifi- 
 cally enforced, we further said: "Railroad compauies, in order to 
 fulfil one of the ends of their creation, — the promotion of the public 
 welfare, — should be left free to establish and re-establish their depots 
 wheresoever the accommodation of the wants of the public may 
 require." 
 
 In Railway Co. v. People, 120 111. 200, which was a petition for a 
 mandamus to compel the railway company to repair, generally, a 
 certain portion of its road, and to increase its passenger trains 
 thereon, we said: "There can be no doubt of the duty of a railway 
 company to keep its road in a reasonable state of repair, and in a safe 
 condition. Nor is there any doubt of its duty to so operate it as to 
 afford adequate facilities for the transaction of such business as may 
 be offered it, or at least reasonably be expected. . . . The company, 
 however, is given, as it should be, a very large discretion in deter- 
 mining all questions relating to the equipment and operation of its 
 road; hence courts, as a general rule, will not interfere with the 
 management of railways in these respects, except where the act sought 
 to be enforced is specific, and the right to its performance in the 
 manner proposed is clear and undoubted." 
 
 It is in recognition of the paramount duty of railway companies to 
 establish and maintain their depots at such points, and in such man- 
 ner, as to subserve the public necessities and convenience that it has 
 been held by all the courts, with very few exceptions, that contracts 
 materially limiting their power to locate and relocate their depots are 
 against public policy, and therefore void. Railroad Co. v. Mathers, 
 71 111. 592; Railroad Co. v. Mathers, 104 111. 257; Bestor v. Wathen, 
 60 111. 138; Linder v. Carpenter, 62 111. 309; Railroad Co. v. Ryan, 
 11 Kas. 602; Railroad Co. v. Seely, 45 Mo. 212; Holladay v. Patter- 
 son, 5 Or. 177; Tayl. Corp. § 162, and authorities cited. 
 
 We have now to consider whether in the light of the principles 
 above laid down, a right to the relief prayed for is sufficiently shown 
 by the petition. There can be no doubt that the act sought to be 
 enforced (the establishment and maintenance of a freight and passen- 
 ger station on the defendant's line of railway at a convenient point 
 within the town of Upper Alton) is sufficiently specific to be enforced 
 by mandamus; and it only remains to be seen whether the right to
 
 PEOPLE V. CHICAGO AND ALTON RAILROAD. 67 
 
 have its performance enforced is shown to be clear and undoubted. 
 It should be observed that there is no controversy as to the facts ; the 
 allegations of the petition beiug, for all the purposes of this appeal, 
 conclusively admitted by the demurrer. 
 
 The petition undertakes to show the public importance and neces- 
 sity of the station asked for in two ways: First, by alleging the 
 facts and circumstances which tend to prove it; and, second///, by 
 directly averring it. It cannot be doubted, we think, that the facts 
 alleged make out a clear and strong case of public necessity. They 
 show that Upper Alton is a town of over 1,800 inhabitants, situated 
 on the line of the defendant's railway about midway between two 
 other stations seven miles apart. The residents of the town and 
 vicinity are shown to be possessed of at least the ordinary inclination 
 to travel by railway, and it is averred that many of them have 
 occasion and desire to travel by the defendant's railway between 
 Upper Alton and other points on the line of said railway. Various 
 manufacturing and other business enterprises are shown to be carried 
 on within the town, creating a necessity for the use of said railway 
 for the transportation of manufactured articles, merchandise, and other 
 freights. To avail themselves of transportation upon trains which 
 pass by their doors, the inhabitants of Upper Alton are compelled to 
 go and transport their freights by other conveyances to a neighboring 
 town about three and one-half miles away. Then, as we have already 
 said, the petition directly avers, and the demurrer admits, that the 
 accommodation of the public living in and near said town requires, 
 and long has required, the establishment of a passenger and freight 
 depot on the line of its road within said town. Unless, then, there 
 is some explanation for the course pursued by the defendant which 
 the record does not give, w r e cannot escape the conviction that its 
 conduct in the premises exhibits an entire want of good faith in its 
 efforts to perform its public functions as a common carrier, and an 
 unwarrantable disregard of the public interests and necessities. It 
 cannot be admitted that the discretion vested in the defendant in the 
 matter of establishing and maintaining its freight and passenger sta- 
 tions extends so far as to justify such manifest and admitted disre- 
 gard of its duties to the public. 
 
 We are of the opinion that the petition shows a clear and undoubted 
 right on the part of the public to the establishment and maintenance 
 of a freight and passenger station on the line of the defendant's rail- 
 way in the town of Upper Alton, and it therefore follows that the 
 demurrer to the petition should have been overruled.
 
 68 MOBILE & OHIO RAILROAD V. PEOPLE. 
 
 MOBILE & OHIO RAILROAD v. PEOPLE. 
 Supreme Court of Illinois, 1890. 
 
 [132 III. 559 : 24 N. E. 643.] 
 
 Scholfield, J. 1 Railway stations for the receipt and discbarge of 
 passengers and freight are for the mutual profit and convenience of 
 the company and the public. Their location at points most desirable 
 for the convenience of travel and business is alike indispensable to 
 the efficient operation of the road and the enjoyment of it as a high- 
 way by the public. Necessarily, therefore, the company cannot be 
 compelled, on the one hand, to locate stations at points where the 
 cost of maintaining them will exceed the profits resulting therefrom 
 to the company, nor allowed, on the other hand, to locate them so far 
 apart as to practically deny to communities on the line of the road 
 reasonable access to its use. The duty to maintain or continue sta- 
 tions must, manifestly, rest upon the same principle, and a company 
 cannot, therefore, be compelled to maintain or continue a station at a 
 point where the welfare of the company and the country in general 
 require that it should be changed to some other point. And so we 
 have held that a railway company cannot bind itself by contract 
 with individuals to locate and maintain stations at particular points, 
 or to not locate and maintain them at other points. Bestor v. 
 Wathen, GO 111. 138; Linder v. Carpenter, 62 111. 309; Marsh v. 
 Railroad Co., 64 111. 414; Railroad Co. v. Mathers, 71 111. 592; Same 
 Case again in 104 111. 257; Snell v. Pells, 113 111. 145. The power 
 of election in the location of the line of the railway referred to in 
 People v. Louisville & N. R. Co., 120 111. 48, results from the fran- 
 chise granted by the charter to exercise the right of eminent domain, 
 and is therefore totally different from the power of locating stations, 
 which, from its very nature, is a continuing one. And so we said in 
 Marsh v. Railroad Co., supra, where a bill had been filed for the spe- 
 cific performance of a contract to locate and maintain a station at a 
 particular part: "Railroad companies, in order to fulfil one of the 
 ends of their creation — the promotion of the public welfare — 
 should be left free to establish and re-establish their depots whereso- 
 ever the accommodation of the wants of the public may require." 
 And so, again, we said in Railroad Co. v. Mathers, supra: "When- 
 ever the public convenience requires that a station on a railroad 
 should be established at a particular point, and it can be done without 
 detriment to the interests of the stockholders of the company, the 
 law authorizes it to be established there, and no contract between a 
 board of directors and individuals can be allowed to prohibit it." 
 And in the very recent case of People v. Chicago & A. R. Co., 130 
 111. 175, where we awarded a mandamus commanding the location and 
 
 1 Part of the opinion only is given. — Ed.
 
 NORTHERN PACIFIC RAILROAD V. WASHINGTON. 69 
 
 maintaining of a station at a point where no station had before been 
 located and maintained, we said: "It is undoubtedly the rule that 
 railway companies, in the absence of statutory provisions limiting 
 and restricting their powers are vested with a very broad discretion 
 in the matter of locating, constructing, and operating their railway-, 
 and of locating and maintaining their freight and passenger stations. 
 This discretion, however, is not absolute, but is subject to the con- 
 dition that it must be exercised in good faith, and with a due regard 
 to the necessities and convenience of the public." 
 
 The rule has been so often announced by this court that it is 
 unnecessary to cite the cases; that a mandamus will never be awarded 
 unless the right to have the thing done which is sought is clearly 
 established. If the right is doubtful, the writ will be refused. The 
 burden was on the relator to prove a case authorizing the issuing of 
 the writ, and in our opinion that proof has not been made. . . . 
 The judgment of the Circuit Court is reversed, and the cause is 
 remanded to that court with direction to enter judgment for the 
 respondent. 
 
 NORTHERN PACIFIC RAILROAD v. WASHINGTON. 
 Supreme Court of the United States, 1892. 
 
 [142 U. S. 492.] 
 
 A petition in the name of the Territory of Washington, at the rela- 
 tion of the prosecuting attorney for the county of Yakima and four 
 other counties in the territory, was filed in the District Court of the 
 fourth judicial district of the territory on February 20, 1885, for a 
 ma.ndamus to compel the Northern Pacific Railroad Company to 
 erect and maintain a station at Yakima City, on the Cascade branch 
 of its railroad, extending from Pasco Junction, on the Columbia 
 River, up the valley of the Yakima River and through the county of 
 Yakima, towards Puget Sound, and to stop its trains there to receive 
 and deliver freight, and to receive and let off passengers. 1 
 
 Mr. Justice Gray, after stating the case as above, delivered the 
 opinion of the Court. 
 
 A writ of mandamus to compel a railroad corporation to do a par- 
 ticular act in constructing its road or buildings, or in running its 
 trains, can be issued only when there is a specific legal duty on its 
 part to do that act, and clear proof of a breach of that duty. 
 
 If, as in Railroad v. Hall, 91 U. S. 343, the charter of a railroad 
 corporation expressly requires it to maintain its railroad as a contin- 
 uous line, it may be compelled to do so by mandamus. So if the 
 charter requires the corporation to construct its road and to run its 
 cars to a certain point on tide-water (as was held to be the case in 
 
 1 Part of the statement of the case is omitted. — Ed.
 
 70 NORTHERN PACIFIC RAILROAD V. WASHINGTON. 
 
 State v. Railroad, 29 Conn. 538), and it has so constructed its road 
 and used it for years, it may be compelled to continue to do so. 
 And mandamus will lie to compel a corporation to build a bridge in 
 accordance with an express requirement of statute. Railway v. Mis- 
 sissippi, 112 U. S. 12; People v. Railroad, 70 N. Y. 569. 
 
 But if the charter of a railroad corporation simply authorizes the 
 corporation, without requiring it, to construct and maintain a railroad 
 to a certain point, it has been held that it cannot be compelled by 
 mandamus to complete or to maintain its road to that point when it 
 would not be remunerative. Railway Co. v. Queen, 1 El. & Bl. 
 858; Id. 874; Com. v. Railroad, 12 Gray, 180; State v. Railroad, 18 
 Minn. 40. 
 
 The difficulties in the way of issuing a mandamus to compel the 
 maintenance of a railroad and the running of trains to a terminus 
 fixed by the charter itself are much increased when it is sought to 
 compel the corporation to establish or to maintain a station and to 
 stop its trains at a particular place on the line of its road. The loca- 
 tion of stations and warehouses for receiving and delivering passen- 
 gers and freight involves a comprehensive view of the interests of 
 the public, as well as of the corporation and its stockholders, and a 
 consideration of many circumstances concerning the amount of popu- 
 lation and business at, or near, or within convenient access to one 
 point or another, which are more appropriate to be determined by 
 the directors, or, in case of abuse of their discretion, by the legis- 
 lature, or by administrative boards intrusted by the legislature with 
 that duty, than by the ordinary judicial tribunals, 
 
 The defendant's charter, after authorizing and empowering it to 
 locate, construct, and maintain a continuous railroad "by the most 
 eligible route, as shall be determined hy said company," within limits 
 described in the broadest way, both as to the terminal points and as 
 to the course and direction of the road, and vesting it with "all the 
 powers, privileges, and immunities necessary to carry into effect the 
 purposes of this act as herein set forth," enacts that the road "shall be 
 constructed in a substantial and workmanlike manner, with all the 
 necessary draws, culverts, bridges, viaducts, crossings, turnouts, 
 stations, and watering places, and all other appurtenances." The 
 words last quoted are but a general expression of what would be 
 otherwise implied by law, and cover all structures of every kind 
 needed for the completion and maintenance of the railroad. They 
 cannot be construed as imposing any specific duty, or as controlling 
 the discretion in these respects of a corporation intrusted with such 
 large discretionary powers upon the more important questions of the 
 course and the termini of its road. The contrast between these gen- 
 eral words and the specific requirements, which follow in the same 
 section, that the rails shall be manufactured from American iron, 
 and that "a uniform gauge shall be established throughout the entire 
 length of the road," is significant.
 
 NORTHERN PACIFIC RAILROAD V. WASHINGTON. 71 
 
 To bold that the directors of this corporation, in determining the 
 number, place, and size of its stations and other structures, having 
 regard to the public convenience as well as to its own pecuniary 
 interests, can be controlled by the courts by writ of mandamus, would 
 be inconsistent with many decisions of high authority in analogous 
 cases. 
 
 The constitution of Colorado, of 1876, art. 15, § 4, provided that 
 "all railroads shall be public highways, and all railroad companies 
 shall be common carriers;" and that "every railroad company shall 
 have the right with its road to intersect, connect with, or cross any other 
 railroad." Section 6 of thesame article was as follows: "All individ- 
 uals, associations, and corporations shall have equal rights to have 
 persons and property transported over any railroad in this state, and 
 no undue or unreasonable discrimination shall be made in charges or 
 facilities for transportation of freight or passengers within the state, 
 and no railroad company, nor any lessee, manager, or employee 
 thereof, shall give any preference to individuals, associations, or 
 corporations in furnishing car or motive power." The General Laws 
 of Colorado, of 1877, c. 11), § 111, authorized every railroad company 
 "to cross, intersect, or connect its railways with any other railway," 
 "to receive and convey persons and property on its railway," and "to 
 erect and maintain all necessary and convenient buildings and sta- 
 tions, fixtures and machinery, for the convenience, accommodation, 
 and use of passengers, freights, and business interests, or which may 
 be necessary for the construction or operation of said railway." 
 This court held that section 6 of article 15 of the constitution of 
 Colorado was only declaratory of the common law; that the right 
 secured by section 4 to connect railroads was confined to their con- 
 nection as physical structures, and did not imply a connection of 
 business with business; and that neither the common law, nor the 
 constitution and statutes of Colorado, compelled one railroad corpora- 
 tion to establish a station or to stop its cars at its junction with the 
 railroad of another corporation, although it had established a union 
 station with the connecting railroad of a third corporation, and had 
 made provisions for the transaction there of a joint business with 
 that corporation. Chief Justice Waite, in delivering the opinion, 
 said: "No statute requires that connected roads shall adopt joint 
 stations, or that one railroad company shall stop at or make use of 
 the station of another. Each company in the state has the legal 
 right to locate its own stations, and, so far as statutory regulations 
 are concerned, is not required to use any other. A railroad company 
 is prohibited, both by the common law and by the constitution of 
 Colorado, from discriminating unreasonably in favor of or against 
 another company seeking to do business on its road; but that does 
 not necessarily imply that it must stop at the junction of one and 
 interchange business there because it has established joint depot 
 accommodations and provided facilities for doing a connecting busi-
 
 72 NORTHERN PACIFIC RAILROAD V. WASHINGTON. 
 
 ness with another company at another place. A station may be 
 established for the special accommodation of a particular customer; 
 but we have never heard it claimed that every other customer could, 
 by a suit in equity, in the absence of a statutory or contract right, 
 compel the company to establish a like station for his special accom- 
 modation at some other place. Such matters are, and always have 
 been, proper subjects for legislative consideration, unless prevented 
 by some charter contract; but, as a general rule, remedies for in- 
 justice of that kind can only be obtained from the legislature. A 
 court of chancery is not, any more than is a court of law, clothed 
 with legislative power." Atchison, T. & S. F. R. Co. v. Denver & 
 N. O. R. Co., 110 U. S. 6G7, 681, G82. 
 
 The Court of Appeals of New York, in a very recent case, refused 
 to grant a mandamus to compel a railroad corporation to construct 
 and maintain a station and warehouse of sufficient capacity to accom- 
 modate passengers and freight at a village containing 1,200 inhabi- 
 tants, and furnishing to the defendant at its station therein a large 
 freight and passenger business, although it was admitted that its 
 present building at that place was entirely inadequate; that the 
 absence of a suitable one was a matter of serious damage to large 
 numbers of persons doing business at that station ; that the railroad 
 commissioners of the state, after notice to the defendant, had adjudged 
 and recommended that it should construct a suitable building there 
 within a certain time; and that the defendant had failed to take any 
 steps in that direction, not for want of means or ability, but because 
 its directors had decided that its interests required it to postpone 
 doing so. The court, speaking by Judge Danforth, while recogniz- 
 ing that " a plainer case could hardly be presented of a deliberate 
 and intentional disregard of the public interest and the accommoda- 
 tion of the public," yet held that it was powerless to interpose, be- 
 cause the defendant, as a carrier, was under no obligation, at common 
 law, to provide warehouses for freight offered, or station-houses for 
 passengers waiting transportation, and no such duty was imposed 
 by the statutes authorizing companies to construct and maintain 
 railroads "for public use in the conveyance of persons and property," 
 and to erect and maintain all necessary and convenient buildings 
 and stations "for the accommodation and use of their passengers, 
 freight, and business," and because, under the statutes of New York, 
 the proceedings and determinations of the railroad commissioners 
 amounted to nothing more than an inquest for information, and had 
 no effect beyond advice to the railroad company and suggestion to 
 the legislature, and could not be judicially enforced. The court 
 said: " As the duty sought to be imposed upon the defendant is not 
 a specific duty prescribed by statute, either in terms or by reasonable 
 construction, the court cannot, no matter how apparent the necessity, 
 enforce its performance by mandamus. It cannot compel the erection 
 of a station-house, nor the enlargement of one." "As to that, the
 
 NORTHERN PACIFIC RAILROAD V. WASHINGTON. 73 
 
 statute imports an authority only, not a command, to be availed of 
 at the option of the company in the discretion of its directors, who 
 are empowered by statute to manage ' its affairs,' among which must 
 be classed the expenditure of money for station buildings or other 
 structures for the promotion of the convenience of the public, having 
 regard also to its own interest. With the exercise of that discretion 
 the legislature only can interfere. No doubt, as the respondent 
 urges, the court may by mandamus also act in certain cases affecting 
 corporate matters, but only where the duty concerned is specific and 
 plainly imposed upon the corporation." "Such is not the ease before 
 us. The grievance complained of is an obvious one, but the burden 
 of removing it can be imposed upon the defendant only by legisla- 
 tion. The legislature created the corporation upon the theory that 
 its functions should be exercised for the public benefit. It may add 
 other regulations to those now binding it, but the court can interfere 
 only to enforce a duty declared by law. The one presented in this 
 case is not of that character; nor can it by any fair or reasonable 
 construction be implied." People v. Railroad, 104 N. Y. 58, 66, 67. 
 
 In Com. y. Railroad, the Supreme Judicial Court of Massachusetts, 
 in holding that a railroad corporation, whose charter was subject 
 to amendment, alteration, or repeal at the pleasure of the legislature, 
 might be required by a subsequent statute to construct a station and 
 stop its trains at a particular place on its road, said: "If the direc- 
 tors of a railroad were to find it for the interest of the stockholders 
 to refuse to carry any freight or passengers except such as they might 
 take at one end of the road and carry entirely through to the other 
 end, and were to refuse to establish any way stations, or do any way 
 business for that reason, though the road passed for a long distance 
 through a populous part of the state, this would be a case manifestly 
 requiring and authorizing legislative interference under the clause 
 in question; and on the same ground, if tbey refuse to provide rea- 
 sonable accommodation for the people of any smaller locality, the 
 legislature may reasonably alter and modify the discretionary power 
 which the charter confers upon the directors, so as to make the duty 
 to provide the accommodation absolute. Whether a reasonable 
 ground for interference is presented in any particular case is for the 
 legislature to determine, and their determination on this point must 
 be conclusive." 103 Mass. 254, 258. 
 
 Upon the same principle, the Supreme Judicial Court of Maine 
 compelled a railroad corporation to build a station at a specified 
 place on its road in accordance with an order of railroad commis- 
 sioners, expressly empowered by the statutes of the state to make 
 such an order, and to apply to the court to enforce it. haws Me. 
 1871, c. 204; Commissioners v. Portland & O. R. Co., 63 Me. 270. 
 
 In Railway Co. v. Commissioners, a railway company was held by 
 Lord Chancellor Selborne, Lord Chief Justice Coleridge, and Lord 
 Justice Brett, in the English Court of Appeal, to be under no obliga-
 
 74 NORTHERN PACIFIC RAILROAD V. WASHINGTON. 
 
 tion to establish stations at any particular place or places unless it 
 thought fit to do so, and was held bound to afford improved facilities 
 for receiving, forwarding, and delivering passengers and goods at a 
 station once established and used for the purpose of traffic only so 
 far as it had been ordered to afford them by the railway commis- 
 sioners, within powers expressly conferred by Act of Parliament. 
 6 Q. B. Div. 586, 592. 
 
 The decision in State v. Railroad Co., 17 Neb. 647, cited in the 
 opinion below, proceeded upon the theory (inconsistent with the 
 judgments of this court in Atchison, T. & S. F. R. Co. v. Denver & 
 N. O. R. Co., and of the Court of Appeals of New York in People v. 
 Railroad Co., above stated) that, independently of any statute re- 
 quirements, a railroad corporation might be compelled to establish a 
 station and to stop its trains at any point on the line of its road at 
 which the court thought it reasonable that it should. 
 
 The opinions of the Supreme Court of Illinois, though going fur- 
 ther than those of most other courts in favor of issuing writs of 
 mandamus to railroad corporations, afford no countenance for grant- 
 ing the writ in the case at bar. In People v. Railroad Co., 120 111. 
 48, a mandamus was issued to compel the company to run all its 
 passenger trains to a station which it had once located and used in 
 a town made a terminal point by the charter, and which was a county 
 seat, because the corporation had no legal power to change its loca- 
 tion, and was required by statute to stop all trains at a county seat. 
 In People v. Railroad Co., 130 111. 175, in which a mandamus was 
 granted to compel a railroad company to establish and maintain a 
 station in a certain town, the petition for the w r rit alleged specific 
 facts making out a clear and strong case of public necessity, and 
 also alleged that the accommodation of the public living in or near 
 the town required, and long had required, the establishment of a 
 station on the line of the road within the town; and the decision was 
 that a demurrer to the petition admitted both the specific and the 
 general allegations, and must therefore be overruled. The court, at 
 pages 182, 183, of that case, and again in Railroad Co. v. People, 
 132 111. 559, 571, said: "It is undoubtedly the rule that railway com- 
 panies, in the absence of statutory provisions limiting and restrict- 
 ing their powers, are vested with a very broad discretion in the 
 matter of locating, constructing, and operating their railways, and 
 of locating and maintaining their freight and passenger stations. 
 This discretion, however, is not absolute, but is subject to the condi- 
 tion that it must be exercised in good faith, and with a due regard 
 to the necessities and convenience of the public." But in the latter 
 case the court also said: "The company cannot be compelled, on the 
 one hand, to locate stations at points where the cost of maintaining 
 them will exceed the profits resulting therefrom to the company, nor 
 allowed, on the other hand, to locate them so far apart as to practi- 
 cally deny to communities on the line of the road reasonable access to
 
 NORTHERN PACIFIC RAILROAD V. WASHINGTON. 75 
 
 its use. The duty to maintain or continue stations must manifestly 
 rest upon the same principle, and a company cannot, therefore, be 
 compelled to maintain or continue a station at a point when the 
 welfare of the company and the community in general requires that 
 it should be changed to some other point." Page 570. "The rule 
 has been so often announced by this court that it is unnecessary to 
 cite the cases, that a mandamus will never be awarded unless the 
 right to have the thing done which is sought is clearly established." 
 Page 572. And upon these reasons the writ was refused. 
 
 Section 691 of the Code of Washington Territory of 1881, follow- 
 ing the common law, defines the cases in which a writ of mandamus 
 may issue as "to any inferior court, corporation, board, officer, or 
 person to compel the performance of an act which the law specially 
 enjoins as a duty resulting from an office, trust, or station." By the 
 same code, in mandamus* as in civil actions, issues of fact may be 
 tried by a jury, the verdict may be either general or special, and, if 
 special, may be in answer to questions submitted by the court; and 
 material allegations of the plaintiff not denied by the answer, as well 
 as material allegations of new matter in the answer not denied in the 
 replication, are deemed admitted, but a qualified admission cannot be 
 availed of by the other party, except as qualified. Sections 103, 
 240, 242, 694, 696; Breemer v. Burgess, 2 Wash. T. 290, 296; Gil- 
 dersleeve v. Landon, 73 N. Y. 609. The replication filed in this case, 
 not being copied in the record sent up, may be assumed, as most 
 favorable to the defendant in error, to have denied all allegations of 
 new matter in the answer. 
 
 The leading facts of this case, then, as appearing by the special 
 verdict, taken in connection with the admissions, express or implied, 
 in the answer, are as follows: The defendant at one time stopped its 
 trains at Yakima City, but never built a station there, and, after com- 
 pleting its road four miles further, to North Yakima, established a 
 freight and passenger station at North Yakima, which was a town laid 
 out by the defendant on its own unimproved land, and thereupon 
 ceased to stop its trains at Yakima City. In consequence, appar- 
 ently, of this, Yakima City, which at the time of filing the petition 
 for mandamus was the most important town, in population and busi- 
 ness, in the county, rapidly dwindled, and most of its inhabitants 
 removed to North Yakima, which at the time of the verdict had be- 
 come the largest and most important town in the county. No other 
 specific facts as to North Yakima are admitted by the parties or 
 found by the jury. The defendant could build a station at Yakima 
 City, but the cost of building one would be §8,000, and the expense 
 of maintaining it $150 a month, and the earnings of the whole of 
 this division of the defendant's road are insufficient to pay its run- 
 ning expenses. The special verdict includes an express finding (which 
 appears to us to be of pure matter of fact, inferred from various cir- 
 cumstances, some of which are evidently not specifically found, and
 
 76 NORTHERN PACIFIC RAILROAD V. WASHINGTON. 
 
 to be in no sense, as assumed by the court below, a conclusion of 
 law) that there are other stations for receiving freight and passengers 
 between North Yakima and Pasco Junction, which furnish sufficient 
 facilities for the country south of North Yakima, which must include 
 Yakima City, as well as an equally explicit finding (which appears 
 to have been who'ly disregarded by the court below) that the passen- 
 ger and freight traffic of the people living in the surrounding country, 
 considering them as a community, would be better accommodated by 
 a station at North Yakima than by one at Yakima City. It also 
 appears of record that, after the verdict and before the district court 
 awarded the writ of mandamus, the county seat was removed, pur- 
 suant to an act of the territorial legislature, from Yakima City to 
 North Yakima. 
 
 The mandamus prayed for being founded on a suggestion that the 
 defendant had distinctly manifested an intention not to perform a 
 definite duty to the public, required of it by law, the petition was 
 rightly presented in the name of the territory at the relation of its 
 prosecuting attorney (Attorney-General v. Boston, 123 Mass. 4G0, 
 479; Code Wash. T. § 2171); and no demand upon the defendant 
 was necessaiy before applying for the writ (Com. v. Commissioners, 
 37 Pa. St. 237; State v. Board, 38 N. J. Law, 259; Mottu v. Prim- 
 rose, 23 Md. 482; Attorney-General v. Boston, 123 Mass. 460, 477). 
 
 Bat upon the facts found and admitted no sufficient case is made 
 for a writ of mandamus, even if the court could, under any circum- 
 stances, issue such a writ for the purpose set forth in the petition. 
 The fraudulent and wrongful intent charged against the defendant in 
 the petition is denied in the answer, and is not found by the jury. 
 The fact that the town of North Yakima was laid out by the defend- 
 ant on its own land cannot impair the right of the inhabitants of that 
 town, whenever they settled there, or of the people of the surrounding 
 country, to reasonable access to the railroad. No ground is shown 
 for requiring the defendant to maintain stations both at Yakima 
 City and at North Yakima; there are other stations furnishing suffi- 
 cient facilities for the whole country from North Yakima southward 
 to Pasco Junction; the earnings of the division of the defendant's 
 road between those points are insufficient to pay its running expenses; 
 and to order the station to be removed from North Yakima to Yakima 
 City would inconvenience a much larger part of the public than it 
 would benefit, even at the time of the return of the verdict; and, 
 before judgment in the district court, the legislature, recognizing 
 that the public interest required it, made North Yakima the county 
 seat. The question whether a mandamus should issue to protect the 
 interest of the public does not depend upon a state of facts existing 
 when the petition was filed, if that state of facts has ceased to exist 
 when the final judgment is rendered. In this regard, as observed by 
 Lord Chief Justice Jervis in Railway Co. v. Queen, already cited, 
 "there is a very great difference between an indictment for not
 
 NORTHERN PACIFIC RAILROAD V. WASHINGTON. 77 
 
 fulfilling a public duty, and a mandamus commanding the party 
 liable to fulfil it." 1 EL & Bl. 878. The court will never order a 
 railroad station to be built or maintained contrary to the public in- 
 terest. T. & P. Railway v. Marshall, 136 L. S. 393. 
 
 For the reasons above stated, the judgment of the Supreme Court 
 of the territory must be reversed, and the case remanded, with direc- 
 tions to enter judgment for the defendant, dismissing the petition; 
 and, Washington having been admitted into the Union as a state by 
 Act of Congress passed while this writ of error was pending in this 
 court, the mandate will be directed as the nature of the case requires, 
 to the Supreme Court of the state of Washington. Act Feb. 22, 1889, 
 c. 180, §§ 22, 23 (25 St. 682, 683). 
 
 Judgment reversed, and mandate accordingly. 
 
 Mr. Justice Brewer (with whom concurred Mr. Justice Field and 
 Mr. Justice Harlan) dissenting. I dissent from the opinion and 
 judgment in this case. 
 
 The question is not whether a railroad company can be compelled 
 to build a depot and stop its trains at any place where are gathered 
 two or three homes and families, nor whether courts can determine 
 at what locality in a city or town the depot shall be placed, nor even 
 whether, when there are tw r o villages contiguous, the courts may 
 determine at which of the two the company shall make its stopping- 
 place, or compel depots at both. But the case here presented is this: 
 A railroad company builds its road into a county, finds the county 
 seat already established and inhabited, the largest and most pros- 
 perous town in the county, and along the line of its road for many 
 miles. It builds its road to and through that county seat, lucre is 
 no reason of a public nature why that should not be made a stopping- 
 place. For some reason undisclosed — perhaps because that county 
 seat will not pay to the managers a bonus, or because they seek a 
 real-estate speculation in establishing a new town — it locates its 
 depot on the site of a "paper" town, the title to which it holds, contig- 
 uous to this established county seat; stops only at the one, and 
 refuses to stop at the other; and thus, for private interests, builds up 
 a new place at the expense of the old ; and for this subservience of its 
 public duty to its private interests we are told that there is in the 
 courts no redress; and this because Congress in chartering this North- 
 ern Pacific road did not name Yakima City as a stopping-place, and 
 has not in terms delegated to the courts the power to interfere in the 
 matter. 
 
 A railroad corporation has a public duty to perform as well as a 
 private interest to subserve, and I never before believed that the 
 courts would permit it to abandon the one to promote the other. 
 Nowhere in its charter is in terms expressed the duty of carrying 
 passengers and freight. Are the courts impotent to compel the per- 
 formance of this duty? Is the duty of carrying passengers and
 
 78 JONES V. NEWPORT NEWS & MISSISSIPPI VALLEY CO. 
 
 freight any more of a public duty than that of placing its depots and 
 stopping its trains at those places which will best accommodate the 
 public? If the state of Indiana incorporates a railroad to build a 
 road from New Albany through Indianapolis to South Bend, and that 
 road is built, can it be that the courts may compel the road to receive 
 passengers and transport freight, but, in the absence of a specific 
 direction from the legislature, are powerless to compel the road to stop 
 its trains and build a depot at Indianapolis? I do not so belittle the 
 power or duty of the courts. 
 
 JONES v. NEWPORT NEWS & MISSISSIPPI VALLEY CO. 
 Circuit Court of Appeals, Sixth Circuit, 1895. 
 
 [65 Fed. 736.] 
 
 Action by H. M. Jones against the Newport News & Mississippi 
 Valley Company for injury to and discontinuance of a railroad switch 
 to plaintiff's warehouse. A demurrer was sustained to that part of 
 the petition which claimed damages for discontinuance of the switch, 
 and plaintiff brings error. 
 
 Taft, Circuit Judge. 1 Plaintiff bases his claim for damages — 
 First, on the violation of an alleged common-law duty; and, second, 
 on the breach of a contract. 2 
 
 1. The proposition put forward on plaintiff's behalf is that when a 
 railroad company permits a switch connection to be made between 
 its line and the private warehouse of any person, and delivers mer- 
 chandise over it for years, it becomes part of the main line of the 
 railroad, and cannot be discontinued or removed, and this on 
 common-law principles and without the aid of a statute. It may be 
 safely assumed that the common law imposes no greater obligation 
 upon a common carrier with respect to a private individual than with 
 respect to the public. If a railroad company may exercise its dis- 
 cretion to discontinue a public station for passengers or a public ware- 
 house for freight without incurring any liability or rendering itself 
 subject to judicial control, it would seem necessarily to follow that 
 it may exercise its discretion to establish or discontinue a private 
 warehouse for one customer. 
 
 In Northern Pac. Ry. Co. v. Washington, 142 U. S. 492, it was 
 held that a mandamus would not lie to compel a railroad company to 
 establish a station and stop its trains at a town at which for a time 
 it did stop its trains and deliver its freight. 
 
 In Com. v. Fitchburg R. Co., 12 Gray, 180, it was attempted to 
 compel a railroad company to run regular passenger trains over cer- 
 
 1 The statement of facts is omitted from the opinion. — Ed. 
 3 So much of the case as relates to this claim is omitted. — Ed.
 
 JONES V. NEWPORT NEWS & MISSISSIPPI VALLEY CO. 79 
 
 tain branch lines upon which they had been run for a long time, but 
 had been discontinued because they were unremunerative. The court 
 held that mandamus would not lie because the maintenance of such 
 facilities was left to the discretion of the directors. 1 
 
 It is true that the foregoing were cases of mandamus, and that the 
 court exercises a discretion in the issuance of that writ which cannot 
 enter into its judgment in an action for damages for a breach of duty. 
 But the cases show that the reason why the writ cannot go is because 
 there is no legal right of the public at common law to have a station 
 established at any particular place along the line, or to object to a 
 discontinuance of a station after its establishment. They make it 
 clear that the directors have a discretion in the interest of the public 
 and the company to decide where stations shall be, and where they 
 shall remain, and that this discretion cannot be controlled in the 
 absence of statutory provision. Such uncontrollable discretion is 
 utterly inconsistent with the existence of a legal duty to maintain a 
 station at a particular place, a breach of which can give an action for 
 damages. If the directors have a discretion to establish and discon- 
 tinue public stations, a fortiori have they the right to discontinue 
 switch connections to private warehouses. The switch connection 
 and transportation over it may seriously interfere with the conven- 
 ience and safety of the public in its use of the road. It may much 
 embarrass the general business of the company. It is peculiarly 
 within the discretion of the directors to determine whether it does so 
 or not. At one time in the life of the company, it may be useful and 
 consistent with all the legitimate purposes of the company. A 
 change of conditions, an increase in business, a necessity for travel 
 at higher speed, may make such a connection either inconvenient or 
 dangerous, or both. We must therefore dissent altogether from the 
 proposition that the establishment and maintenance of a switch con- 
 nection of the main line to a private warehouse for any length of time 
 can create a duty of the railroad company at common law forever to 
 maintain it. There is little or no authority to sustain it. 
 
 The latest of the Illinois cases which are relied upon is based upon 
 a constitutional provision which requires all railroad companies 
 to permit connections to be made with their track, so that the con- 
 signee of grain and any public warehouse, coal bank, or coal yard 
 may be reached by the cars of said railroad. The supreme court of 
 that state has held that the railroad company has a discretion to say 
 in what particular manner the connection shall be made with its main 
 track, but that this discretion is exhausted after the completion of the 
 switch and its use without objection for a number of years. Railroad 
 Co. v. Suffern, 129 111. 274. But this is very far from holding that 
 there is any common-law liability to maintain a side track forever 
 
 1 An extract from the opinion in llv. v. Washington is omitted. The Court also 
 cited Peo. v. N. Y. L. E. & W. R. R., 104 N. Y. 58 ; Florida, C. & P. R. R. v. State, 
 31 Fla. 482. — Ed.
 
 80 JONES V. NEWPORT NEWS & MISSISSIPPI VALLEY CO. 
 
 after it has once been established. The other Illinois cases (Vincent 
 v. Railroad Co., 49 111. 33; Chicago & N. W. Ry. Co. v. People, 56 111. 
 365) may be distinguished in the same way. They depended on stat- 
 utory obligations, and were not based upon the common law, though 
 there are some remarks in the nature of obiter dicta which gives color 
 to plaintiff's contention. But it will be seen by reference to Mr. 
 Justice Gray's opinion, already quoted from, that the Illinois cases 
 have exercised greater power than most courts in controlling the 
 discretion of railroads in the conduct of their business. 
 
 In Barre R. Co. v. Montpelier & W. R. Co., 31 V't. 1, the question 
 was one of condemnation. The law forbade one railroad company to 
 condemn the line of another road, and the question was whether the 
 side tracks of the railroad company, which, with the consent of the 
 owners of the granite quarry, ran into a quarry in which a great busi- 
 ness was done, were the line of the railroad within the meaning of the 
 statute. It was held that they were so far as to impose obligations 
 on and create exemptions in favor of the railroad company operating 
 the side tracks. We may concede, for the purpose of this case, 
 without deciding, that, as long as a railroad company permits a side 
 track to be connected with its main line for the purpose of delivering 
 merchandise in car-load lots to the owner of the side track, the obli- 
 gation of the railroad company is the same as if it were delivering 
 these cars at its own warehouse, on its own side track. But this we 
 do not conceive to be inconsistent with the right of the directors of 
 the railroad company, exercising their discretion in the conduct of 
 the business of the company for the benefit of the public and the 
 shareholders, to remove a side track connection. 
 
 The recital of the facts in the petition in this case is enough to show 
 that the switch connection of the plaintiff was one of probable or 
 possible danger to the public using the railroad, and to justify its 
 termination for that reason. It was made on a high fill, on the 
 approach to a bridge across a stream, and the switch track ran on to 
 a trestle 15 feet above the ground, and terminating in the air. Even 
 if the discretion reposed in the directors to determine where switch 
 connections shall be made or removed were one for the abuse of which 
 an action for damages would lie, the petition would be defective, be- 
 cause it does not attempt in any way to negative the dangerous char- 
 acter of the switch which the facts stated certainly suggest as a good 
 ground for the action of the company complained of. . . . 
 
 The judgment of the circuit court is affirmed, with costs.
 
 CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 81 
 
 CHICAGO AND NORTHWESTERN RAILROAD v. PEOPLE. 
 Supreme Court of Illinois, 1870. 
 
 [56 III. 365.] 
 
 Mr. Chief Justice Lawrence delivered the opinion of the Court : 
 This wus an application for a mandamus, on the relation of the 
 owners of the Illinois River elevator, a grain warehouse in the city ot 
 Chicago, against the Chicago and Northwestern Railroad Company. 
 The relators seek b}- the writ to compel the railway company to deliver 
 to said elevator whatever grain in bulk may be consigned to it upon 
 the line of its road. There was a return dulv made to the alternative 
 writ, a demurrer to the return, and a judgment pro forum upon the 
 demurrer, directing the issuing of a peremptory writ. Erom that judg- 
 ment the railway company has prosecuted an appeal. 
 
 The facts as presented by the record are brieily as follows : 
 The company has freight and passenger depots on the west side of 
 the north branch of the Chicago River, north of Kinzie Street, for the 
 use, as we understand the record and the maps which are made a part 
 thereof, of the divisions known as the Wisconsin and Milwaukie divi- 
 sions of the road, running in a northwesterly direction. It also has 
 depots on the east side of the north branch, for the use of the Galena 
 division, running westerby. It has also a depot on the south branch 
 near Sixteenth Street, which it reaches by a track diverging from the 
 Galena line on the west side of the city". The map indicates a line 
 running north from Sixteenth Street the entire length of West Water 
 Street, but we do not understand the relators to claim their elevator 
 should be approached by this line, as the respondent has no interest in 
 this line south of Van Buren Street. 
 
 Under an ordinance of the city, passed August 10, 1858, the Pitts- 
 burgh, Fort Wayne, and Chicago Company, and the Chicago, St. Paid, 
 and Fond Du Lac Company (now merged in the Chicago and North- 
 western Company) constructed a track on West Water Street, from Van 
 Buren Street north to Kinzie Street, for the purpose of forming a con- 
 nection between the two roads. The Pittsburgh, Fort Wayne, and 
 Chicago Compan}' laid the track from Van Buren to Randolph Street, 
 and the Chicago, St. Paul, and Fond Du Lac Company, that portion 
 of the track from Randolph north to its own depot. These different 
 portions of the track were, however, constructed by these two com- 
 panies, by an arrangement between themselves, the precise character 
 of which does not appear, but it is to be inferred from the record that 
 they have a common right to the use of the track from Van Buren Street 
 to Kinzie, and do in fact use it in common. The elevator of the rela- 
 tors is situated south of Randolph Street, and north of Van Buren, and 
 is connected with the main track by a side track laid by the Pittsburgh 
 Company, at the request and expense of the owners of the elevator, 
 and connected at each end with the main track. 
 
 6
 
 82 CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 
 
 Since the 10th of August, 1866, the Chicago and Northwestern Com- 
 pany, in consequence of certain arrangements and agreements on and 
 before that day entered into between the company and the owners of 
 certain elevators, known as the Galena, Northwestern, Munn & Scott, 
 Union, City, Hunger and Armor, and Wheeler, has refused to deliver 
 grain in bulk to any elevator except those above named. There is also 
 in force a rule of the company, adopted in 1864, forbidding the carriage 
 of grain in bulk, if consigned to any particular elevator in Chicago, thus 
 reserving to itself the selection of the warehouse to which the grain 
 should be delivered. The rule also provides that grain in bags shall 
 be charged an additional price for transportation. This rule is still in 
 force. 
 
 The situation of these elevators, to which alone the company will 
 deliver grain, is as follows : The Northwestern is situated near the 
 depot of the Wisconsin division of the road, north of Kinzie Street ; 
 the Munn & Scott on West Water Street, between the elevator of rela- 
 tors and Kinzie Street ; the Union and Cit}' near Sixteenth Street, and 
 approached onby by the track diverging from the Galena division, on 
 the west side of the city, already mentioned ; and the others are on the 
 east side of the north branch of the Chicago River. The Munn & Scott 
 elevator can be reached only by the line laid on West Water Street, 
 under the city ordinance already mentioned ; and the elevator of rela- 
 tors is reached in the same way, being about four and a half blocks 
 further south. The line of the Galena division of the road crosses the 
 line on West Water Street at nearly a right angle, and thence crosses 
 the North Branch on a bridge. It appears by the return to the writ, 
 that a car coming into Chicago on the Galena division, in order to 
 reach the elevator of relators, would have to be taken by a drawbridge 
 across the river on a single track, over which the great mass of the 
 business of the Galena division is done, then backed across the river 
 again upon what is known as the Milwaukie division of respondent's 
 road, thence taken to the track on West Water Street, and the cars, 
 when unloaded, could only be taken back to the Galena division by a 
 similar, but reversed, process, thus necessitating the passage of the 
 drawbridge, with only a single line, four times, and, as averred in the 
 return subjecting the company to great loss of time and pecuniary 
 damage in the delay that would be caused to its regular trains and 
 business on that division. 
 
 This seems so apparent that it cannot be fairly claimed the elevator 
 of relators is upon the line of the Galena division, in any such sense as 
 to make it obligatory upon the company to deliver upon West Water 
 Street freight coming over that division of the road. The doctrine of 
 the Vincent Case, in 49 111., was, that a railway company must deliver 
 grain to any elevator which it had allowed, by a switch, to be connected 
 with its own line. This rule has been reaffirmed in an opinion filed at 
 the present term, in the case of The People ex rel. Hempstead v. The 
 Chi. & Alton R. R. Company, 55 111. 95, but in the last case we have
 
 CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 83 
 
 also held that a railway company cannot be compelled to deliver beyond 
 its own line simply because there are connecting tracks over which it 
 might pass by paying track service, but which it has never made a part 
 of its own line by use. 
 
 So far as we can judge from this record, and the maps showing the 
 railway lines and connections, filed as a part thereof, the Wisconsin 
 and Milwaukee divisions, running northwest, and the Galena division, 
 running west, though belonging to the same corporation and having a 
 •common name, are, for the purposes of transportation, substantially 
 different roads, constructed under different charters, and the track on 
 West Water Street seems to have been laid for the convenience of the 
 Wisconsin and Milwaukie divisions. It would be a harsh and unrea- 
 sonable application of the rule announced in the Vincent Case, and a 
 great extension of the rule beyond anything said in that case, if we 
 were to hold that these relators could compel the company to deliver at 
 their elevator grain which has been transported over the Galena divi- 
 sion, merely because the delivery is physically possible, though causing 
 great expense to the company and a great derangement of its general 
 business, and though the track on West Water Street is not used by 
 the company in connection with the business of the Galena division. 
 
 What we have said disposes of the case so far as relates to the 
 delivery of grain coming over the Galena division of respondent's road. 
 As to such grain, the mandamus should not have been awarded. 
 
 When, however, we examine the record as to the connection between 
 the relators' elevator and the Wisconsin and Milwaukie divisions of 
 respondent's road, we find a very different state of facts. The track on 
 West Water Street is a direct continuation of the line of the Wisconsin 
 and Milwaukie division ; cars coming on this track from these divisions 
 do not cross the river. The Munn & Scott elevator, to which the re- 
 spondent delivers grain, is, as already stated, upon a side track con- 
 nected with this track. The respondent not only uses this track to 
 deliver grain to the Munn & Scott elevator, but it also delivers lumber 
 and other freight upon this track, thus making it not only legally, but 
 actually, by positive occupation, a part of its road. The respondent, 
 in its return, admits in explicit terms, that it has an equal interest with 
 the Pittsburgh, Fort Wayne, and Chicago Railroad in the track laid in 
 West Water Street. It also admits its use; and the only allegation 
 made in the return for the purpose of showing any difficulty in deliver- 
 ing to relators' elevator the grain consigned thereto from the Wisconsin 
 and Milwaukie divisions, is, that those divisions connect with the line 
 on West Water Street only b}' a single track, and that respondent can- 
 not deliver bulk grain or other freight to the elevator of relators, even 
 from those divisions, without large additional expense, caused by the 
 loss of the use of motive power, labor of servants, and loss of use of 
 cars, while the same are being delivered and unloaded at said elevator 
 and brought back. As a reason for non-delivery on the ground of diffi- 
 culty, this is simply frivolous. The expense caused by the loss of the
 
 84 CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 
 
 use of motive power, labor, and cars, while the latter are being taken 
 to their place of destination and unloaded, is precisely the expense for 
 which the compan}' is paid its freight. It has constructed this line on 
 West Water Street, in order to do the very work which it now, in 
 general terms, pronounces a source of large additional expense; yet it 
 does not find the alleged additional expense an obstacle in the way of 
 delivering grain upon this track at the warehouse of Munn & Scott, or 
 delivering other freights to other persons than the relators. Indeed, it 
 seems evident, from the diagrams attached to the record, that three of 
 the elevators, to which the respondent delivers grain, are more difficult 
 of access than that of the relators, and three of the others have no 
 appreciable advantage in that respect, if not placed at a decided dis- 
 advantage by the fact that the}' can be reached only by crossing the 
 river. 
 
 We presume, however, from the argument that the respondent's 
 counsel place no reliance upon this allegation of additional expense, so 
 far as the Wisconsin and Milwaukie divisions are concerned. They 
 rest the defence on the contracts made between the company and the 
 elevators above named, for exclusive delivery to the latter to the extent 
 of their capacity. This brings us to the most important question in the 
 case. Is a contract of this character a valid excuse to the company for 
 refusing to deliver grain to an elevator, upon its lines and not a party 
 to the contract, to which such grain has been consigned? 
 
 In the oral argument of this case it was claimed, by counsel for the 
 respondent, that a railway company was a mere private corporation, 
 and that it was the right and duty of its directors to conduct its busi- 
 ness merely with reference to the pecuniary interests of the stockholders. 
 The printed arguments do not go to this extent, in terms, but they are 
 colored throughout bv the same idea, and in one of them we find conn- 
 sel applying to the Supreme Court of the United States, and the Supreme 
 Court of Pennsylvania, language of severe, and almost contemptuous, 
 disparagement, because those tribunals have said that " a common car- 
 rier is in the exercise of a sort of public office." N. J. Steam Nav. Co. 
 v. Merch. Bank, 6 How. 381 ; Sanford v. Railroad Co., 24 Pa. 380. If 
 the language is not critically accurate, perhaps we can pardon these 
 courts, when we find that substantially the same language was used 
 by Lord Holt, in Coggs v. Bernard, 2 Lord Raymond, 909, the leading 
 case in all our books on the subject of bailments. The language of that 
 case is, that the common carrier " exercises a public employment." 
 
 We shall engage in no discussion in regard to names. It is immate- 
 rial whether or not these corporations can be properly said to be in the 
 exercise of " a sort of public office," or whether they are to be st}'led 
 private, or quasi public corporations. Certain it is, that the}' owe 
 some important duties to the public, and it only concerns us now to 
 ascertain the extent of these duties as regards the case made upon this 
 record. 
 
 It is admitted by respondent's counsel that railway companies are
 
 CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 85 
 
 common carriers, though even that admission is somewhat grudgingly 
 made. Regarded merely as a common carrier at common law, and in- 
 dependently of any obligations imposed by the acceptance of its charter, 
 it would owe important duties to the public, from which it could not 
 release itself, except with the consent of every person who might call 
 upon it to perform them. Among these duties, as well defined and 
 settled as anything in the law, was the obligation to receive and cany 
 goods for all persons alike, without injurious discrimination as to 
 terms, and to deliver them in safety to the consignee, unless prevented 
 by the act of God or the public enemy. These obligations grew out of 
 the relation voluntarily assumed by the carrier toward the public, and 
 the requirements of public policy, and so important have they been 
 deemed that eminent judges have often expressed their regret that 
 common carriers have ever been permitted to vary their common-law 
 liability, even by a special contract with the owner of the goods. 
 
 Regarded, then, merely as a common carrier at common law, the 
 respondent should not be permitted to say it will deliver goods at the 
 warehouse of A and B, but will not deliver at the warehouse of C, 
 the latter presenting equal facilities for the discharge of freight, and 
 being accessible on respondent's line. 
 
 But railway companies may well be regarded as under a higher 
 obligation, if that were possible, than that imposed by the common 
 law, to discharge their duties to the public as common carriers fairly 
 and impartially. As has been said by other courts, the State has 
 endowed them with something of its own sovereignty, in giving them 
 the right of eminent domain. By virtue of this power they take the 
 lands of the citizen against his will, and can, if need be, demolish his 
 house. Is it supposed these great powers were granted merely for the 
 private gain of the corporators? On the contrary, we all know the 
 companies were created for the public good. 
 
 The object of the legislature was to add to the means of travel and 
 commerce. If, then, a common carrier at common law came under 
 obligations to the public from which he could not discharge himself at 
 his own volition, still less should a railway company be permitted to do 
 so, when it was created for the public benefit, and has received from 
 the public such extraordinary privileges. Railway charters not only 
 give a perpetual existence and great power, but the}- have been con- 
 stantly recognized by the courts of this country as contracts between 
 the companies and the State, imposing reciprocal obligations. 
 
 The courts have always been, and we trust always will be, ready to 
 protect these companies in their chartered rights, but, on the other 
 hand, we should be equally ready to insist that they perform faithfully 
 to the public those duties which were the object of their chartered 
 powers. 
 
 We are not, of course, to be understood as saying or intimating that 
 the legislature, or the courts, may require from a railway company the 
 performance of any and all acts that might redound to the public benefit,
 
 86 CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 
 
 without reference to the pecuniary welfare of the company itself. We 
 hold simply that it must perform all those duties of a common carrier 
 to which it knew it would be liable when it sought and obtained its 
 charter, and the fact that the public has bestowed upon it extraordi- 
 nary powers is but an additional reason for holding it to a complete 
 performance of its obligations. 
 
 The duty sought to be enforced in this proceeding is the delivery of 
 grain in bulk to the warehouse to which it is consigned, such warehouse 
 being on the line of the respondent's road, with facilities for its delivery 
 equal to those of the other warehouses at which the company does 
 deliver, and the carriage of grain in bulk being a part of its regular 
 business. This, then, is the precise question decided in the Vincent 
 Case, in 49 111., and it is unnecessary to repeat what was there said. 
 We may remark, however, that, as the argument of counsel necessarily 
 brought that case under review, and as it was decided before the re- 
 organization of this court under the new constitution, the court as now 
 constituted has re-examined that decision, and fully concurs therein. 
 That case is really decisive of the present, so far as respects grain 
 transported on the Wisconsin and Milwaukie divisions of respondent's 
 road. The only difference between this and the Vincent Case is in 
 the existence of the contract for exclusive delivery to the favored ware- 
 houses, and this contract can have no effect when set up against a 
 person not a party to it, as an excuse for not performing toward such 
 person those duties of a common carrier prescribed by the common law, 
 and declared by the statute of the State. 
 
 The contract in question is peculiarly objectionable in its character, 
 and peculiarly defiant of the obligations of the respondent to the public 
 as a common carrier. If the principle implied in it were conceded, the 
 railway companies of the State might make similar contracts with indi- 
 viduals at eveiy important point upon their lines, and in regard to other 
 articles of commerce besides grain, and thus subject the business of the 
 State almost wholly to their control, as a means of their own emolument. 
 Instead of making a contract with several elevators, as in the present 
 case, each road that enters Chicago might contract with one alone, 
 and thus give to the owner of such elevator an absolute and complete 
 monopoly in the handling of all the grain that might be transported 
 over such road. So, too, at every important town in the interior, each 
 road might contract that all the lumber carried by it should be con- 
 signed to a particular yard. How injurious to the public would be the 
 creation of such a system of organized monopolies in the most important 
 articles of commerce, claiming existence under a perpetual charter from 
 the State, and, by the sacredness of such charter, claiming also to set 
 the legislative will itself at defiance, it is hardly worth while to specu- 
 late. It would be difficult to exaggerate the evil of which such a 
 system would be the cause, when fully developed, and managed by 
 unscrupulous hands. 
 
 Can it be seriously doubted whether a contract, involving such a
 
 CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 87 
 
 principle, and such results, is in conflict with the duties which the 
 company owes to the public as a common carrier? The fact that a 
 contract has been made is really of no moment, because, if the com- 
 pany can bind the public by a contract of this sort, it can do the same 
 thing by a mere regulation of its own, and say to these relators that it 
 will not deliver at their warehouse the grain consigned to them, because 
 it prefers to deliver it elsewhere. The contract, if vicious in itself, so 
 far from excusing the road, only shows that the policy of delivering 
 grain exclusively at its chosen warehouses is a deliberate policy, to be 
 followed for a term of years, during which these contracts run. 
 
 It is, however, urged very strenuously by counsel for the respondent, 
 that a common carrier, in the absence of contract, is bound to carry and 
 deliver only according to the custom and usage of his business ; that it 
 depends upon himself to establish such custom and usage ; and that 
 the respondent, never having held itself out as a carrier of grain in 
 bulk, except upon the condition that it ma}* itself choose the consignee, 
 this has become the custom and usage of its business, and it cannot be 
 required to go beyond this limit. In answer to this position, the fact 
 that the respondent has derived its life and powers from the people, 
 through the legislature, comes in with controlling force. Admit, if the 
 respondent were a private association, which had established a line of 
 wagons, for the purpose of carrying grain from the Wisconsin boundary 
 to the elevator of Munn & Scott in Chicago, and had never offered to 
 earn* or deliver it elsewhere, that it could not be compelled to depart 
 from the custom or usage of its trade. Still the admission does not 
 aid the respondent in this case. In the case supposed, the carrier 
 would establish the terminal points of his route at his own discretion, 
 and could change them as his interests might demand. He offers him- 
 self to the public on by as a common carrier to that extent, and he can 
 abandon his first line and adopt another at his own volition. If he 
 should abandon it, and, instead of offering to cany grain only to the 
 elevator of Munn & Scott, should offer to cany it generally to Chicago, 
 then he would clearlj* be obliged to deliver it to any consignee in 
 Chicago,, to whom it might be sent and to whom it could be delivered, 
 the place of delivery being upon his line of carriage. 
 
 In the case before us, admitting the position of counsel that a com- 
 mon carrier establishes his own line and terminal points, the question 
 arises, at what time and how does a railway company establish them ? 
 We answer, when it accepts from the legislature the charter which 
 gives it life, and by virtue of such acceptance. That is the point of 
 time at which its obligations begin. It is then that it holds itself out 
 to the world as a common carrier, whose business will begin as soon 
 as the road is constructed upon the line which the charter has fixed. 
 Suppose this respondent had asked from the legislature a charter au- 
 thorizing it to cany grain in bulk to be delivered only at the elevator 
 of Munn & Scott, and nowhere else in the city of Chicago. Can any 
 one suppose such charter would have been granted ? The supposition is
 
 88 CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 
 
 preposterous. But, instead of a charter making a particular elevator the 
 terminus and place of delivery, the legislature granted one which made 
 the city of Chicago itself the terminus, and when this charter was ac- 
 cepted there at once arose, on the part of the respondent, the corre- 
 sponding obligation to deliver grain at any point within the city of 
 Chicago, upon its lines, with suitable accommodations for receiving it, 
 to which such grain might be consigned. Perhaps grain in bulk was 
 not then carried in cars, and elevators may not have been largely intro- 
 duced. But the charter was granted to promote the conveniences of 
 commerce, and it is the constant duty of the respondent to adapt its 
 agencies to that end. When these elevators were erected in Chicago, 
 to which the respondent's line extended, it could only carry out the 
 obligations of its charter by receiving and delivering to each elevator 
 whatever grain might be consigned to it, and it is idle to sa}- such 
 obligation can be evaded b}' the claim that such delivery has not been 
 the custom or usage of respondent. It can be permitted to establish 
 no custom inconsistent with the spirit and object of its charter. 
 
 It is claimed by counsel that the charter of respondent authorizes it 
 to make such contracts and regulations as might be necessary in the 
 transaction of its business. But certainly we cannot suppose the legis- 
 lature intended to authorize the making of such rules or contracts as 
 would defeat the ver\- object it had in view in granting the charter. 
 The company can make such rules and contracts as it pleases, not in- 
 consistent with its duties as a common carrier, but it can go no further, 
 and any general language which its charter may contain must neces- 
 sarily be construed with that limitation. In the case of The City of 
 Chicago v. RumprT, 45 111. 94, this court held a clause in the charter, 
 giving the common council the right to control and regulate the business 
 of slaughtering animals, did not authorize the city to create a monopoly 
 of the business, under pretence of regulating and controlling it. 
 
 It is unnecessaiy to speak particularly of the rule adopted by the 
 companj' in reference to the transportation of grain. What we have 
 said in regard to the contract applies equally to the rule. 
 
 The principle that a railroad company can make no injurious or 
 arbitrary discrimination between individuals in its dealings with the 
 public, not only commends itself to our reason and sense of justice, but 
 is sustained by adjudged cases. In England, a contract which admitted 
 to the door of a station, within the yard of a railway company, a certain 
 omnibus, and excluded another omnibus, was held void. Harriot v. 
 L. & S. W. R. R. Co., 1 C. B. (N. S.), 498. 
 
 In Gaston v. Bristol & Exeter Railroad Company, 6 C. B. (N. S.) 641, 
 it was held, that a contract with certain ironmongers, to carry their 
 freight for a less price than that charged the public, was illegal, no 
 good reason for the discrimination being shown. 
 
 In Crouch v. The L. & N. W. R. Co., 14 C. B. 254, it was held a rail- 
 way company could not make a regulation for the conve} T ance of 
 goods which, in practice, affected one individual only.
 
 COE V. LOUISVILLE & NASHVILLE RAILROAD. 89 
 
 In Sandford v. Railroad Company, 24 Pa. 382, the court held that 
 the power given in the charter of a railway company to regulate the 
 transportation of the road did not give the right to grant exclusive 
 privileges to a particular express company. The court say, "If the 
 company possessed this power, it might build up one set of men and 
 destroy others ; advance one kind of business and break down another, 
 and make even religion and politics the tests in the distribution of its 
 favors. The rights of the people are not subject to any such corporate 
 control." 
 
 We refer also to Rogers' Locomotive Works v. Erie R. R. Co., 5 
 Green, 380, and State v. Hartford & N. II. R. Co., 29 Conn. 538. 
 
 It is insisted by counsel for the respondent that, even if the relators 
 have just cause of complaint, the}' cannot resort to the writ of manda- 
 mus. We are of opinion, however, that they can have an adequate 
 remedy in no other way, and that the writ will therefore lie. 
 
 The judgment of the court below awarding a peremptory mandamus 
 must be reversed, because it applies to the Galena division of respon- 
 dent's road, as well as to the Wisconsin and Milwaukie divisions. If 
 it had applied only to the latter, we should have affirmed the judgment. 
 The parties have stipulated that, in case of reversal, the case shall be 
 remanded, with leave to the relators to traverse the return. We there- 
 fore make no final order, but remand the case, with leave to both parties 
 to amend their pleadings, if desired, in view of what has been said in 
 this opinion. Judgment reversed. 
 
 COE v. LOUISVILLE & NASHVILLE RAILROAD. 
 
 Circuit Court of the United States, Middle District of 
 
 Tennessee, 1880. 
 
 [3 Fed. 775.] 
 
 Baxter, C. J. The defendant corporation owns the Louisville & 
 Nashville Railroad, and, in virtue of its purchase of the southeastern 
 lease of the Nashville & Decatur, and ownership of a majority of t he 
 capital stock of the Nashville, Chattanooga & St. Louis Railway Corn- 
 pan}', controls every railroad centering at Nashville. It has, for many 
 years past, been engaged in carrying such freights as are usually trans- 
 ported by rail, including live stock. Twelve or more years since, when 
 it needed facilities for loading and delivering live stock, the complain 
 ants bought a lot contiguous to defendant's depot, in Nashville, at 
 $14,000, and fitted it up as a stock yard, at a cost of $16,000 more. 
 There was no express contract between complainants and defendant in 
 relation to the matter. But it is clear that it was a convenience to de- 
 fendant's business. By the permission or acquiescence of defendant 
 complainants' yard was connected with defendant's road by appropriate 
 stock gaps and pens, which have been in use by both parties for more
 
 90 COE V. LOUISVILLE & NASHVILLE RAILROAD. 
 
 than twelve years ; but on the twenty-fifth of March, 1880, the defend- 
 ant and the Nashville, Chattanooga & St. Louis Railway Company 
 entered into a contract with the Union Stock Yard Company, whereby 
 the said stock-yard company stipulated " to erect, maintain, and keep 
 in good order," etc., " a stock yard in the city of Nashville, on the line 
 of the Nashville, Chattanooga & St. Louis Railway," outside the city 
 limits, and more than a mile from complainants' yard. And the parties 
 of the first part — the railroad companies — among other things, agreed 
 that " they would establish no other stock yard in Nashville," and that 
 they would "deliver, and cause to be delivered, to said party of the 
 second part all live stock shipped over the roads of the parties of the 
 first part, and consigned to the city of Nashville ; the parties of the first 
 part hereby agreeing to make this stock yard of the party of the second 
 part their stock depot for said city, and will not deliver at any other 
 point or points of the city, and agree to deliver all live stock shipped to 
 said city of Nashville at the yards of the party of the second part." 
 
 In furtherance of this contract, Edward B. Stahlman, defendant's 
 traffic manager, and owner of 85,000 of the capital stock of the stock- 
 yard company, issued the following order, addressed to defendant's 
 agent, dated July 10, 1880: "On the fifteenth inst. there will be 
 opened and ready for business the stock yards erected by the Union 
 Stock Yard Company, at Nashville, Tenn. These yards have every 
 facility for the proper handling and care of live stock, and will be con- 
 stituted our stock delivery and forwarding depots. Live stock from 
 and after that date consigned to Nashville proper, or destined to any 
 points over our line via Nashville, should be way-billed care of the 
 Union Stock Yards ; " and on the twenty-fourth of the same month 
 James Geddes, defendant's superintendent, supplemented the foregoing 
 order with a notice to complainants in the following words: "I am 
 directed by Mr. De Funiak, general manager, to notify you that after 
 the last day of July, 1880, no delivery of stock will be made to you at 
 our platform here, Nashville depot," to wit, the platform, gaps, and 
 pens communicating with complainants' yard, where the defendant had 
 heretofore delivered to them. 
 
 Complainants remonstrated against this threatened discrimination 
 against them and their business ; but, being unable to induce any change 
 in defendant's avowed policy, filed their bill in which they pray for an 
 injunction to restrain " defendant's agents and officers and servants 
 from interfering with or in any manner disturbing the enjoyment and 
 facilities now accorded to complainants by the said defendant upon its 
 lines of railway, for the transaction of business now carried on by the 
 complainants, and especially from excluding or inhibiting persons from 
 consigning stock to complainants, and from refusing to receive and trans- 
 port stock from complainants' yard, and from interfering with or in any 
 way disturbing the business of the complainants, and from refusing to 
 permit the complainants to continue their business on the same terms 
 as heretofore." The injunction asked for is both inhibitory and man-
 
 COE V. LOUISVILLE & NASHVILLE RAILROAD. 91 
 
 datory ; it seeks to prohibit the doing of threatened and alleged 
 wrongful acts, and to compel defendant to continue the facilities and 
 accommodations heretofore accorded by defendant to complainants ; 
 and the question is, are complainants entitled, preliminarily, to the 
 relief prayed for, or any part of it? 
 
 The facts suggest the very important inquiry, how far railroads, 
 called into being to subserve the public, can be lawfully manipulated 
 by those who control them to advance, incidentally, their own private 
 interests, or depress the business of particular individuals or localities, 
 for the benefit of other persons or communities. As common carriers 
 they are by law bound to receive, transport, and deliver freights offered 
 for that purpose, in accordance with the usual course of business. The 
 delivery, when practicable, must be to the consignee. But the rule 
 which requires common carriers by land to deliver to the consignee per- 
 sonally at his place of business, has been somewhat relaxed in favor of 
 said roads on the ground that they have no means of delivering beyond 
 their lines ; but it was held in Vincent v. The Chicago & Alton R. Co., 
 49 111. 33, that at common law, and independent of the statute relied 
 on in the argument, that in cases where a shipment of grain was made 
 to a party having a warehouse on the line of the carrying road, who 
 had provided a connecting track and was read}' to receive it, it would 
 be the duty of the railroad company to make a personal delivery of the 
 grain to the consignee at his warehouse ; because, say the court, " the 
 common-law rule must be applied, as the necessity of its relaxation" 
 did not exist. 
 
 This rule is just and convenient, and necessary to an expeditious and 
 economical delivery of freights. It has regard to their proper classifi- 
 cation, and to the circumstances of the particular case. Under it 
 articles susceptible of easy transfer may be delivered at a general de- 
 livery depot provided for the purpose. But live stock, coal, ore. grain 
 in bulk, marble, etc., do not belong to this class. For these some other 
 and more appropriate mode of delivery must be provided. Hence it is 
 that persons engaged in receiving and forwarding live stock, manufac- 
 turers consuming large quantities of heavy material, dealers in coal, 
 and grain merchants, receiving, storing, and forwarding grain in bulk", 
 who are dependent on railroad transportation, usually select locations 
 for the prosecution of their business contiguous to railroads, where they 
 can have the benefit of side connections over which their freight can be 
 delivered in bulk at their private depots ; and may a railroad company, 
 after encouraging investments in mills, furnaces, and other productive 
 manufacturing enterprises on its line of road, refuse to make personal 
 delivery of the material necessary to their business, at their depots, 
 erected for the purpose, and require them to accept delivery a mile dis- 
 tant, at the depot of and through a rival and competing establishment? 
 Or ma}' such railroad company establish a "Union Coal Yard " in this 
 city, and constitute it its depot for the delivery of coal, and thus im- 
 pose on all the coal dealers in the city, with whom it has side connec-
 
 92 COE V. LOUISVILLE & NASHVILLE KAILEOAD. 
 
 tions, the labor, expense, and delay of carting their coal supplies from 
 such general delivery to their respective yards ? Or may such railroad 
 company, in like manner, discriminate between grain elevators in the 
 same place, — constitute one elevator its depot for the deliver}' of grain, 
 and force competing interests to receive from and transfer the grain 
 consigned to them through such selected and favored channel? 
 
 If railroad corporations possess such right, they can destroy a refrac- 
 tory manufacturer, exterminate, or very materially cripple competition, 
 and in large measure monopolize and control these several branches of 
 useful commerce, and dictate such terms as avarice may suggest. We 
 think the}' possess no such power to kill and make alive. Impartiality 
 in serving their patrons is an imperative obligation of all railroad com- 
 panies ; equality of accommodations in the use of railroads is the legal 
 right of everybody. The principle is founded in justice and necessity, 
 and has been uniformly recognized and enforced by the courts. A con- 
 trary idea would concede to railroad companies a dangerous discretion, 
 and inevitably lead to intolerable abuses. It would, to a limited ex- 
 tent, make them masters instead of the servants of the public. By an 
 unjust exercise of such a power they could destroy the business of one 
 man and build up that of another, punish an enemy and reward a 
 friend, depress the interests of one community for the benefit of its 
 rival, and so manipulate their roads as to compel concessions and se- 
 cure incidental profits to which they have no legal or moral right 
 whatever. 
 
 The case in hand is but a sample of what might be done by these 
 corporations if the power claimed in this case is possessed by them. 
 Complainants' stock yard was purchased and fitted up at a heavy out- 
 la}' of money. It was, at the time, a necessity to defendant's business. 
 By the express agreement or tacit understanding of the parties suitable 
 connections for receiving and delivering stock were made, of which the 
 defendant availed itself for twelve years. But, after thus accepting the 
 benefits of complainants' expenditures, the defendant proposes to sever 
 its connections, withhold further accommodations, decline to receive 
 from or deliver stock at complainants' yard, concentrate its patronage 
 on the Union Stock Yard Company, require all consignors to way-bill 
 their stock to the care of said favored company, and, by this invidious 
 discrimination, compel complainants to carry on their trade through a 
 rival yard, or else abandon their established and lucrative business. 
 The execution of defendant's threat would destroy complainants' busi- 
 ness, depreciate their property, and deprive the public of the protection 
 against exorbitant charges which legitimate competition, conducted on 
 equal terras, always insures. Complainants' yard is on defendant's 
 road ; it furnishes every needed facility ; was purchased and improved 
 in the belief that they would receive the same measure of accommoda- 
 tion extended to others sustaining the same relation to defendant ; de- 
 fendant can receive and discharge stock at complainants' yard as easily 
 and cheaply as it can at the Union Stock Yard Company's yards. Such
 
 ATCH., TOP. & S. F. R. V. DENVER & NEW ORLEANS R. 93 
 
 delivery is both practicable and convenient, and it is, we think, its legal 
 duty, under the facts of this case, to do so. 
 
 But defendant, protesting that the proposed discrimination in favor 
 of the Union Stock Yard Company would, if executed, constitute no 
 wrong of which complainants ought justl}' to complain, contends, — 
 first, that complainants, even supposing the law to be otherwise, have 
 an adequate remedy at law, and therefore cannot have any relief from 
 a court of chancery ; and, second, that if a chancery court may enter- 
 tain jurisdiction, no relief in the nature of a mandatory order to com- 
 pel defendant to continue accommodations to the complainants ought 
 to be made until the final hearing. If such is the law it must be so 
 administered. But we do not concur in this interpretation of the adju- 
 dications. Those cited in argument are not, we think, applicable to 
 the facts of this case. Complainants could, in the event defendant 
 carries its threat into execution and withholds the accommodations 
 claimed as their right, sue at law and recover damages for the wrong 
 to be thus inflicted. But they could not, through any process used by 
 courts of law, compel defendant to specifically perform its legal duty in 
 the premises. And this imperfect redress could only be attained 
 through a multiplicity of suits, to be prosecuted at great expense of 
 money and labor; and then, after reaching the end through the harass- 
 ing dela3's incident to such litigation, complainants' business would be 
 destroj'ed, and the Union Stock Yard Company, born of favoritism and 
 fostered by an illegal and unjust discrimination, would be secure in its 
 monopoly. Here an adequate remedy can be administered and a mul- 
 tiplicity of suits avoided. 
 
 One other point remains to be noticed. Ought a mandatory order to 
 issue upon this preliminary application ? Clearly not, unless the urgency 
 of the case demands it, and the rights of the parties are free from 
 reasonable doubt. The duty which the complainants seek by this suit 
 to enforce is one imposed and defined bj' law — a duty of which the 
 court has judicial knowledge. The injunction compelling its perform- 
 ance, pending this controversy, can do defendant no harm ; whereas a 
 suspension of accommodations would work inevitable and irreparable 
 mischief to complainants. The injunction prayed for will, therefore, be 
 issued. 
 
 ATCHISON, TOPEKA AND SANTA FE RAILROAD v. DEN- 
 VER AND NEW ORLEANS RAILROAD. 
 
 Supreme Court of the United States. 1884. 
 
 [110 U. S. 667.1 
 
 This was a bill in equity filed by the Denver & New Orleans Rail- 
 road Company, a Colorado corporation, owning and operating a rail- 
 road in that State between Denver and Pueblo, a distance of about
 
 94 ATCH., TOP. & S. F. K. V. DENVER & NEW ORLEANS R. 
 
 one hundred and twenty-five miles, against the Atehison, Topeka & 
 Santa Fe Railroad Compan}', a Kansas corporation, owning and 
 operating a railroad in that State from the Missouri River, at Kan- 
 sas City, westerly to the Colorado State line, and also operating from 
 there, under a lease, a road in Colorado from the State line to Pueblo, 
 built by the Pueblo & Arkansas Valley Railroad Company, a Colorado 
 corporation. The two roads so operated by the Atchison, Topeka & 
 Santa Fe Company formed a continuous line of communication from 
 Kansas City to Pueblo, about six hundred and thirty-four miles. The 
 general purpose of the suit was to compel the Atchison, Topeka & 
 Santa Fe Company to unite with the Denver & New Orleans Company 
 in forming a through line of railroad transportation to and from Den- 
 ver over the Denver & New Orleans road, with all the privileges as to 
 exchange of business, division of rates, sale of tickets, issue of bills 
 of lading, checking of baggage and interchange of cars, that were or 
 might be customary with connecting roads, or that were or might be 
 granted to the Denver & Rio Grande Railroad Company, another Col- 
 orado corporation, also owning and operating a road parallel to that of 
 the Denver & New Orleans Company between Denver and Pueblo, or to 
 any other railroad company competing with the Denver & New Orleans 
 for Denver business. 
 
 It appeared that when the Atchison, Topeka & Santa Fe Company 
 reached Pueblo with its line it had no connection of its own with Den- 
 ver. The Denver & Rio Grande road was built and running between 
 Denver and Pueblo, but the gauge of its track was different from that 
 of the Atchison, Topeka & Santa Fe. Other companies occupying 
 different routes had at the time substantially the control of the trans- 
 portation of passengers and freight between the Missouri River and 
 Denver. The Atchison, Topeka & Santa Fe Company, being desirous 
 of competing for this business, entered into an arrangement, as early 
 as 1879, with the Denver & Rio Grande Company for the formation of 
 a through line of transportation for that, purpose. By this arrange- 
 ment a third rail was to be put down on the track of the Denver & 
 Rio Grande road, so as to admit of the passage of cars continuously 
 over both roads, and terms were agreed on for doing the business and 
 for the division of rates. The object of the parties was to establish a 
 new line, which could be worked with rapidity and economy, in compe- 
 tition with the old ones. 1 
 
 In 1882 the Denver & New Orleans Company completed its road 
 between Denver and Pueblo, and connected its track with that of the 
 Atchison. Topeka & Santa Fe, in Pueblo, twelve or fifteen hundred feet 
 easterly from the junction of the Denver & Rio Grande, and about 
 three-quarters of a mile from the union depot at which the Atchison, 
 Topeka & Santa Fe and the Denver & Rio Grande interchanged their 
 business, and where each stopped its trains regularly to take on and 
 let off passengers and receive and deliver freight. The Denver & 
 1 Part of the statement of facts is omitted. — Ed.
 
 ATCH., TOP. & S. F. R. V. DENVER & NEW ORLEANS R. 95 
 
 New Orleans Company erected, at its junction with the Atchison, To- 
 peka & Santa Fe, platforms and other accommodations for the inter- 
 change of business, and before this suit was begun the general super- 
 intendent of the Denver & New Orleans Company made a request in 
 writing of the general manager of the Atchison, Topeka <V Santa Fe, 
 as follows : 
 
 " That through bills of lading be given via your line and ours, and 
 that you allow all freight consigned via D. & N. O. li. Iv. to be deliv- 
 ered this company at point of junction, and on such terms as exist 
 between your road and any other line or lines ; that you allow your 
 cars, or cars of any foreign line, destined for [joints reached by the 
 D. & N. O. R. R., to be delivered to this company and hauled to desti- 
 nation in same manner as interchanged with any other line. That you 
 allow tickets to be placed on sale between points on line of D. & N. (J. 
 R. R. and those on line of A. T. & S. F. R. R., or reached by either 
 line ; that a system of through checking of baggage be adopted ; that 
 a transfer of U. S. mail be made at point of junction. In matter of 
 settlements between the two companies for earnings and charges due, 
 we will settle daily on delivery of freight to this line ; for mileage due 
 for car service, and for amounts due for tickets interchanged, we agree 
 to settle monthly, or in any other manner adopted by your line, or as 
 is customary between railroads in such settlements." 
 
 This request was refused, and the Atchison, Topeka & Santa Fe 
 Company continued its through business with the Denver & Rio 
 Grande as before, but declined to receive or deliver freight or pas- 
 sengers at the junction of the Denver & New Orleans road, or to give 
 or take through bills of lading, or to sell or receive through tickets, or 
 to check baggage over that line. All passengers or freight coming 
 from or destined for that line were taken or delivered at the regular 
 depot of the Atchison, Topeka & Santa Fe Company in Pueblo, and 
 the prices charged were according to the regular rates to and from that 
 point, which were more than the Atchison. Topeka & Santa Fe received 
 on a division of through rates to and from Denver under its arrange- 
 ment with the Denver & Rio Grande Company. . . . 
 
 Upon this state of facts the Circuit Court entered a decree requiring 
 the Atchison, Topeka & Santa Fe Company to stop all its passenger 
 trains at the platform built by the Denver & New Orleans Compan}' 
 where the two roads joined, and to remain there long enough to take 
 on and let off passengers with safety, and to receive and deliver 
 express matter and the mails. It also required the Atchison, Topeka 
 & Sante Fe Company to keep an agent there, to sell tickets, check 
 baggage, and bill freight. All freight trains were to be stopped at the 
 same place whenever there was freight to be taken on or delivered, if 
 proper notice was given. While the Atchison, Topeka & Santa Fe 
 Company was not required to issue or recognize through bills of lading 
 embracing the Denver & New Orleans road in the route, or to sell or 
 recognize through tickets of the same character, or to check baggage
 
 9G ATCH., TOP. & S. F. K. V. DENVER & NEW ORLEANS R. 
 
 in connection with that road, it was required to carry freight and pas- 
 sengers going to or coming from that road at the same price it would 
 receive if the passenger or freight were carried to or from the same 
 point upon a through ticket or through bill of lading issued under any 
 arrangement with the Denver & Rio Grande Company or any other 
 competitor of the Denver & New Orleans Company for business. In 
 short, the decree, as entered, establishes in detail rules and regulations 
 for the working of the Atchison, Topeka & Santa Fe and Denver & 
 New Orleans roads, in connection with each other as a connecting 
 through line, and, in effect, requires the Atchison, Topeka & Santa Fe 
 Compan} - to place the Denver & New Orleans Company on an equal 
 footing as to the interchange of business with the most favored of the 
 competitors of that company, both as to prices and facilities, except in 
 respect to the issue of through bills of lading, through checks for bag- 
 gage, through tickets, and perhaps the compulsory interchange of cars. 
 
 From this decree both companies appealed ; the Atchison, Topeka 
 & Santa Fe Company because the bill was not dismissed ; and the 
 Denver & New Orleans Company because the decree did not fix the 
 rates to be charged by the Atchison, Topeka & Santa Fe Compan}- for 
 freight and passengers transported by it in connection with the Denver 
 & New Orleans, or make a specific division and apportionment of 
 through rates between the two companies, and because it did not 
 require the issue of through tickets and through bills of lading, and 
 the through checking of baggage. 
 
 Mr. H. C. Thatcher, Mr. Charles E. Gast, Mr. George R. Eeck, 
 and Mr. William 31. JEvarts for the Atchison, Topeka & Santa Fe 
 Railroad Company. 
 
 Mr. E. T. Wells for the Denver & New Orleans Railroad Company. 
 
 Mr. Chief Justice Waite delivered the opinion of the court. 1 
 After reciting the facts in the foregoing language he continued : 
 
 The case has been presented by counsel in two aspects : 
 
 1. In view of the requirements of the Constitution of Colorado 
 alone ; and 
 
 2. In view of the constitutional and common-law obligations of rail- 
 road companies in Colorado as common carriers. 
 
 We will first consider the requirements of the Constitution; and 
 here it may be premised that sec. 6 of art. 15 imposes no greater 
 obligations upon the company than the common law would have im- 
 posed without it. Every common carrier must cany for all to the 
 extent of his capacity, without undue or unreasonable discrimination 
 either in charges or facilities. The Constitution has taken from the 
 legislature the power of abolishing this rule as applied to railroad 
 companies. 
 
 So in sec. 4 there is nothing specially important to the present 
 inquiry except the last sentence : " Eveiw railroad compam - shall 
 have the right with its road to intersect, connect with, or cross any 
 
 1 Part of the opinion is omitted. — Ed.
 
 ATCIL, TOP. & S. F. R. V. DENVER & NEW ORLEANS R. 97 
 
 other railroad." Railroad companies are created to serve the public 
 as carriers for hire, and their obligations to the public are such as the 
 law attaches to that service. The only exclusively constitutional ques- 
 tion in the case is, therefore, whether the right of one railroad com- 
 pany to connect its road with that of another company, which has been 
 made part of the fundamental law of the State, implies more than a 
 mechanical union of the tracks of the roads so as to admit of the con- 
 venient passage of cars from one to the other. The claim on the part 
 of the Denver & New Orleans Company is that the right to connect 
 the roads includes the right of business intercourse between the two 
 companies, such as is customary on roads forming a continuous line, 
 and that if the companies fail or refuse to agree upon the terms of 
 their intercourse a court of equity may, in the absence of statutory 
 regulations, determine what the terms shall be. Such appears to have 
 been the opinion of the Circuit Court, and accordingly in its decree a 
 compulsory business connection was established between the two com- 
 panies, and rules were laid down for the government of their conduct 
 towards each other in this new relation. In other words, the court has 
 made an arrangement for the business intercourse of these companies 
 such as, in its opinion, they ought in law to have made for themselves. 
 
 There is here no question as to how or where the physical connec- 
 tion of the roads shall be made, for that has already been done at the 
 place, and in the way, decided upon by the Denver & New Orleans 
 Company for itself, and the Atchison, Topeka & Santa Fe Company 
 does not ask to have it changed. The point in dispute upon this 
 branch of the case, therefore, is whether, under the Constitution of 
 Colorado, the Denver & New Orleans Company has a constitutional 
 right, which a court of chancery can enforce b}* a decree for specific 
 performance, to form the same business connection, and make the same 
 tratlic arrangement, with the Atchison, Topeka & Santa Fe Company 
 as that company grants to, or makes with, any competing company 
 operating a connected road. 
 
 The right secured by the Constitution is that of a connection of one 
 road with another, and the language used" to describe the grant is 
 strikingly like that of sec. 23 of the charter of the Baltimore & Ohio 
 Railroad Company, given by Maryland on the 28th of February, 1827, 
 Laws of Maryland, 1826, c. 123, which is in these words: 
 
 " That full right and privilege is hereby reserved to the citizens of 
 this State, or any company hereafter to be incorporated under the 
 authority of this State, to connect with the road hereb}- provided for, 
 any other railroad leading from the main route, to any other part or 
 parts of the State." 
 
 At the time this charter was granted the idea prevailed that a rail- 
 road could be used like a public highway by all who chose to put car- 
 riages thereon, subject onry to the payment of tolls, and to reasonable 
 regulations as to the manner of doing business, Lake Sup. & Miss. H. 
 R. Co. v. United States, 93 U. S. 442 ; but that the word " connect," as 
 
 7
 
 98 ATCH., TOP. & S. F. R. V. DENVER & NEW ORLEANS R. 
 
 here used, was not supposed to mean anything more than a mechanical 
 union of the tracks is apparent from the fact that when afterwards, on 
 the 9th of March, 1833, authority was given the owners of certain fac- 
 tories to connect roads from their factories with the Washington branch 
 of the Baltimore & Ohio Company, and to erect depots at the junc- 
 tions, it was in express terras made " the duty of the company to take 
 from and deliver at said depot any produce, merchandise, or manufac- 
 tures, or other articles whatsoever, which they (the factory owners) 
 may require to be transported on said road." Maryland Laws of 1832, 
 c. 175, sec. 16. The charter of the Baltimore & Ohio Company was 
 one of the earliest ever granted in the United States, and while from 
 the beginning it was common in most of the States to provide in some 
 form by charters for a connection of one railroad with another, we 
 have not had our attention called to a single case where, if more than 
 a connection of tracks was required, the additional requirement was 
 not distinctly stated and defined by the legislature. 
 
 Legislation regarding the duties of connected roads because of their 
 connection is to be found in many of the States, and it began at a very 
 early day in the history of railroad construction. As long ago as 1842 
 a general statute upon the subject was passed in Maine, Stats, of 
 Maine, 1842, c. 9 ; and in 1854, c. 93, a tribunal was established for 
 determining upon the " terras of connection " and "the rates at which 
 passengers and merchandise coming from the one shall be transported 
 over the other," in case the companies themselves failed to agree. 
 Other States have made different provisions, and as railroads have 
 increased in number, and their relations have become more and more 
 complicated, statutory regulations have been more frequently adopted, 
 and with greater particularity in matters of detail. Much litigation 
 has grown out of controversies between connected roads as to their 
 respective rights, but we have found no case in which, without legisla- 
 tive regulation, a simple connection of tracks has been held to estab- 
 lish an}' contract or business relation between the companies. . . . 
 
 To our minds it is clear that the constitutional right in Colorado to 
 connect railroad with railroad does not itself imply the right of con- 
 necting business with business. The railroad companies are not to be 
 connected, but their roads. A connection of roads may make a con- 
 nection in business convenient and desirable, but the one does not 
 necessarily carry with it the other. The language of the Constitution 
 is that railroads may " intersect, connect with, or cross" each other. 
 This clearly applies to the road as a physical structure, not to the cor- 
 poration or its business. 
 
 This brings us to the consideration of the second branch of the 
 case, to wit, the relative rights of the two companies at common law 
 and under the Constitution, as owners of connected roads, it being 
 conceded that there are no statutory regulations applicable to the 
 subject. 
 
 The Constitution expressly provides :
 
 ATCIL, TOP & S. F. K. V. DENVER & NEW ORLEANS R. 99 
 
 1. That all shall have equal rights in the transportation of persons 
 and property ; 
 
 2. That there shall not be any undue or unreasonable discrimination 
 in charges or facilities; and 
 
 3. That preferences shall not be given in furnishing cars or motive 
 power. 
 
 It does not expressly provide : 
 
 1. That the trains of one connected road shall stop for the exchange 
 of business at the junction with the other; nor 
 
 2. That companies owning connected roads shall unite in forming a 
 through line for continuous business, or haul each other's cars ; nor 
 
 3. That local rates on a through line shall be the same to one con- 
 nected road not in the line as the through rates are to another which 
 is ; nor 
 
 4. That if one company refuses to agree with another owning a con- 
 nected road to form a through line or to do a connecting business 
 a court of chancery ma}* order that such a business be done and fix 
 the terms. 
 
 The question, then, is whether these rights or any of them are im- 
 plied either at common law or from the Constitution. 
 
 At common law, a carrier is not bound to cany except on his own 
 line, and we think it quite clear that if he contracts to go beyond he 
 may, in the absence of statutory regulations to the contraiy, determine 
 for himself what agencies he will employ. His contract is equivalent 
 to an extension of his line for the purposes of the contract, and if lie 
 holds himself out as a carrier beyond the line, so that he may be required 
 to carry in that way for all alike, he may nevertheless confine himself 
 in carrying to the particular route he chooses to use. He puts himself 
 in no worse position, by extending his route with the help of others, 
 than he would occupy if the means of transportation employed were all 
 his own. He certainby ma}* select his own agencies and his own asso- 
 ciates for doing- his own work. 
 
 The Atchison, Topeka & Santa Fe Company, as the lessee of the 
 Pueblo & Arkansas Valley Railroad, has the statutory right to estab- 
 lish its own stations and to regulate the time and manner in which it 
 will carry persons and property and the price to be paid therefor. As 
 to all these matters, it is undoubtedly subject to the power of legisla- 
 tive regulation, but in the absence of regulation it owes only such 
 duties to the public, or to individuals, associations, or corporations, as 
 the common law, or some custom having the force of law, has estab- 
 lished for the government of those in its condition. As has already 
 been shown, the Constitution of Colorado gave to every railroad corn- 
 pan}* in the State the right to a mechanical union of its road with that 
 of any other company in the State, but no more. The legislature has 
 not seen fit to extend this right, as it undoubtedly may, and conse- 
 quently the Denver & New Orleans Company comes to the Atchison, 
 Topeko & Santa Fe Company just as any other customer does, and
 
 100 ATCH., TOP. & S. F. K. V. DENVER & NEW ORLEANS R. 
 
 with no more rights. It has established its junction and provided itself 
 with the means of transacting its business at that place, but as yet it 
 has no legislative authority to compel the other company to adopt that 
 station or to establish an agency to do business there. So far as statu- 
 tory regulations are concerned, if it wishes to use the Atchison, To- 
 peka & Santa Fe road for business, it must go to the place where that 
 company takes on and lets off passengers or property for others. It 
 has as a railroad company no statutory or constitutional privileges in 
 this particular over other persons, associations, or corporations. It 
 saw fit to establish its junction at a place away from the station which 
 the Atchison, Topeka & Santa Fe Company had, in the exercise of its 
 legal discretion, located for its own convenience and that of the public. 
 It does not now ask to enter that station with its tracks or to inter- 
 change business at that place, but to compel the Atchison, Topeka & 
 Santa Fe Company to stop at its station and transact a connecting 
 business there. No statute requires that connected roads shall adopt 
 joint stations, or that one railroad company shall stop at or make use 
 of the station of another. Each company in the State has the legal 
 right to locate its own stations, and so far as statutory regulations are 
 concerned, is not required to use any other. 
 
 A railroad cotnpanj 7 is prohibited, both by the common law and by 
 the Constitution of Colorado, from discriminating unreasonably in favor 
 of or against another company seeking to do business on its road ; but 
 that does not necessarily imply that it must stop at the junction of one 
 and interchange business there, because it has established joint depot 
 accommodations and provided facilities for doing a connecting business 
 with another company at another place. A station may be established 
 for the special accommodation of a particular customer; but we have 
 never heard it claimed that every other customer could, by a suit in 
 equity, in the absence of a statutory or contract right, compel the com- 
 pany to establish a like station for his special accommodation at some 
 other place. Such matters are, and always have been, proper subjects 
 for legislative consideration, unless prevented by some charter con- 
 tract ; but, as a general rule, remedies for injustice of that kind can 
 only be obtained from the legislature. A court of chancery is not, any 
 more than is a court of law, clothed with legislative power. It may 
 enforce, in its own appropriate way, the specific performance of an 
 existing legal obligation arising out of contract, law, or usage, but it 
 cannot create the obligation. 
 
 In the present case, the Atchison, Topeka & Santa Fe and the Den- 
 ver & Rio Grande Companies formed their business connection and 
 established their junction or joint station long before the Denver & 
 New Orleans road was built. The Denver & New Orleans Company 
 saw fit to make its junction with the Atchison, Topeka & Santa Fe 
 Company at a different place. Under these circumstances, to hold 
 that, if the Atchison, Topeka & Santa Fe continued to stop at its old 
 station, after the Denver & New Orleans was built, a refusal to stop
 
 ATCH., TOP. & S. F. B. V. DENVER & NEW ORLEANS R. 101 
 
 at the junction of the Denver & New Orleans, was an unreasonable 
 discrimination as to facilities in favor of the Denver & Rio Grande 
 Company, and against the Denver & New Orleans, would be in effect 
 to declare that every railroad company which forces a connection of 
 its road with that of another company has a right, under the Constitu- 
 tion or at the common law, to require the company with which it con- 
 nects to do a connecting business at the junction, if it does a similar 
 business with any other company under any other circumstances. 
 Such, we think, is not the law. It may be made so by the legisla- 
 tive department of the government, but it does not follow, as a neces- 
 sary consequence, from the constitutional right of a mechanical union 
 of tracks, or the constitutional prohibition against undue or unreason- 
 able discrimination in facilities. 
 
 This necessarily disposes of the question of a continuous business, 
 or a through line for passengers or freight, including through tickets, 
 through bills of lading, through checking of baggage, and the like. 
 Such a business does not necessarily follow from a connection of 
 tracks. The connection may enable the companies to do such a busi- 
 ness conveniently when it is established, but it does not of itself estab- 
 lish the business. The legislature cannot take away the right to a 
 physical union of two roads, but whether a connecting business shall 
 be done over them after the union is made depends on legislative regu- 
 lation, or contract obligation. An interchange of cars, or the hauling 
 b} T one company of the cars of the other, implies a stop at the junction 
 to make the exchange or to take the cars. If there need be no stop, 
 there need be no exchange or taking on of cars. 
 
 The onl}' remaining questions are as to the obligation of the Atchi- 
 son, Topeka & Santa Fe Company to cany for the Denver & New 
 Orleans when passengers go to or freight is delivered at the regular 
 stations, and the prices to be charged. As to the obligation to carry, 
 there is no dispute, and we do not understand it to be claimed that car- 
 riage has ever been refused when applied for at the proper place. The 
 controversy, and the only controversy, is about the place and the price. 
 
 That the price must be reasonable is conceded, and it is no doubt 
 true that in determining what is reasonable the prices charged for busi- 
 ness coming from or going to other roads connecting at Pueblo may be 
 taken into consideration. But the relation of the Denver & New 
 Orleans Company to the Atchison, Topeka & Santa Fe is that of a 
 Pueblo customer, and it does not necessarily follow that the price 
 which the Atchison, Topeka & Santa Fe gets for transportation to and 
 from Pueblo, on a division of through rates among the component com- 
 panies of a through line to Denver, must settle the Pueblo local rates. 
 It may be that the local rates to and from Pueblo are too high, and 
 that they ought to be reduced, but that is an entirely different question 
 from a division of through rates. There is no complaint of a discrim- 
 ination against the Denver & New Orleans Company in respect to the 
 regular Pueblo rates ; neither is there anything except the through
 
 102 ATCH., TOP. & S. F. R. V. DENVER & NEW ORLEANS R. 
 
 rates to show that the local rates are too high. The bill does not seek 
 to reduce the local rates, but only to get this company put into the 
 same position as the Denver & Rio Grande on a division of through 
 rates. This cannot be done until it is shown that the relative situa- 
 tions of* the two companies with the Atchison, Topeka & Santa Fe, 
 both as to the kind of service and as to the conditions under which it 
 is to be performed, are substantially the same, so that what is reason- 
 able for one must necessarily be reasonable for the other. When a 
 business connection shall be established between the Denver & New 
 Orleans Company and the Atchison, Topeka & Santa Fe at their junc- 
 tion, and a continuous line formed, different questions may arise ; but 
 so long as the situation of the parties continues as it is now, we cannot 
 say that, as a matter of law, the prices charged by the Atchison, To- 
 peka & Santa Fe, for the transportation of persons and property 
 coming from or going to the Denver & New Orleans, must necessarily 
 be the same as are fixed for the continuous line over the Denver & 
 Rio Grande. . . . 
 
 All the American cases to which our attention has been called by 
 counsel relate either to what amounts to undue discrimination between 
 the customers of a railroad company, or to the power of a court of 
 chanceiy to interfere, if there is such a discrimination. None of them 
 hold that, in the absence of statutory direction, or a specific contract, 
 a company having the power to locate its own stopping-places can be 
 required by a court of equity to stop at another railroad junction and 
 interchange business, or that it must under all circumstances give one 
 connecting road the same facilities and the same rates that it does to 
 another with which it has entered into special contract relations for a 
 continuous through line and arranged facilities accordingly. The cases 
 are all instructive in their analogies, but their facts are different from 
 those we have now to consider. 
 
 We have not referred specially to the tripartite agreement or its pro- 
 visions, because, in our opinion, it has nothing to do with this case as 
 it is now presented. The question here is whether the Denver & New 
 Orleans Company would have the right to the relief it asks if there 
 were no such contract, not whether the contract, if it exists, will be a 
 bar to such a right. The real question in the case, as it now comes 
 before us, is whether the relief required is legislative in its character 
 or judicial. We think it is legislative, and that upon the existing facts 
 a court of chancery can afford no remedy. 
 
 The decree of the Circuit Court is reversed, and the cause remanded 
 with direction to Dismiss the bill without prejudice.
 
 COVINGTON STOCK-YARDS COMPANY V. KEITH. 103 
 
 COVINGTON STOCK- YARDS COMPANY v. KEITH. 
 Supreme Court of the United States, 1891. 
 
 [139 U. S. 128.] 
 
 Mr. Justice Harlan delivered the opinion of the court. 
 
 On the 28th of January, 1886, George T. Bliss and Isaac E. Gates 
 instituted in the court below a suit in equity against the Kentucky 
 Central Railroad Company, a corporation of Kentucky, for the fore- 
 closure of a mortgage or deed of trust given to secure the payment of 
 bonds of that company for a large amount ; in which suit a receiver 
 was appointed who took possession of the railroad, with authority to 
 operate it until the further order of the court. 
 
 The present proceeding was begun on the 18th of June, 188G, b}- a 
 petition filed in the foreclosure suit by Charles W. Keith, who was 
 engaged in buying and selling on commission, as well as on his own 
 account, live stock brought to and shipped from the city of Covington, 
 Kentucky, over the Kentucky Central Railroad. The petition pro- 
 ceeded upon the ground that unjust and illegal discrimination had been 
 and was being made against Keith by the receiver acting under and 
 pursuant to a written agreement made November 19, 1881, between the 
 railroad company and the Covington Stock- Yards Company, a corpora- 
 tion created under the general laws of Kentucky ; the yards of the latter 
 company located in Covington, and connected with the railroad tracks 
 in that city, being the only depot of the railway company that was pro- 
 vided with the necessary platforms and chutes for receiving or discharg- 
 ing live stock on and from its trains at that city. The petition alleged 
 that Keith was the proprietor of certain live-stock lots and yards in 
 that citv immediately west of those belonging to the Covington Stock- 
 Yards Company, and separated from them by only one street sixty 
 feet in width ; that he was provided with all the necessary means of re- 
 ceiving, feeding, and caring for such stock as he purchased, or as might 
 be consigned to him b}' others for sale ; and that his lots and yards 
 were used for that purpose subsequently to March 1, 1886, and until, 
 by the direction of the receiver, the platforms connecting them with 
 the railroad were torn up and rendered unfit for use. The prayer of 
 the petitioner was for a rule against the receiver to show cause why he 
 should not deliver to him at some convenient and suitable place outside 
 of the lots or yards of the said Covington Stock-Yards Company free 
 from other than the customary freight charges for transportation, all 
 stock owned by or consigned to him and brought over said road to 
 Covington. 
 
 The receiver filed a response to the rule, and an order was entered 
 giving leave to the Covington Stock-Yards Company to file an inter- 
 vening petition against the railroad company and Keith, and requiring 
 the latter parties to litigate between themselves the question of the
 
 104 COVINGTON STOCK-YARDS COMPANY V. KEITH. 
 
 validity of the above agreement of 1881. The Stock-Yards Company 
 filed such a petition, claiming all the rights granted D3- the agreement 
 referred to, and alleging that it had expended sixty thousand dollars 
 in constructing depots, platforms, and chutes, as required by that 
 agreement. 
 
 Referring to that agreement it appears that the Stock-Yards Com- 
 pany stipulated that its yards on the line of the railroad in Covington 
 should be maintained in good order, properly equipped with suitable 
 fencing, feeding-pens, and other customary conveniences for handling 
 and caring for live stock, and to that end it would keep at hand a suf- 
 ficient number of skilled workmen to perform the operations required 
 of it, and generally to do such labor as is usually provided for in stock 
 yards of the best class, namely, to load and unload and care for " in 
 the best manner all live stock delivered to them b3' the party of the first 
 part [the railroad company] at their own risk of damage while so doing, 
 and in no event to charge more than sixty cents per car of full loads 
 for loading and sixty cents per car for unloading, and no charges to be 
 made for handling less than full loads, as per way-bills." The Stock- 
 Yards Company also agreed to become liable for those charges, and to 
 collect and pay over to the railroad compan}-, as demanded from time 
 to time, such money as came into its hands, the charges for feeding 
 and caring for live stock not to be more than was charged for similar 
 services and supplies at other stock yards of the country. The railroad 
 companv, upon its part, agreed to pay the Stock-Yards Company the 
 above sums for loading and unloading and otherwise acting as its agent 
 in the collection of freights and charges upon such business as was turned 
 over to it by the railroad companj" ; that it would require all cars loaded 
 at yards for shipment South or East to be carefully bedded, which the 
 Stock-Yards Company was to do at the rates usually charged in other 
 yards ; that it would make the yards of the Stock- Yards Company its 
 "depot for delivery of all its live stock," during the term of the con- 
 tract, and not build, " nor allow to be built, on its right of wa} - , any 
 other depot or yards for the reception of live stock." The delivery of 
 stock in cars on switches or sidings provided for the purpose was to be 
 considered a delivery of the stock to the Stock-Yards Companv, which, 
 from that time, was to be responsible for the stock to the railroad com- 
 pany. To protect the business of the Stock-Yards Company from dam- 
 age in case the railroad extended its track over the Ohio River, the 
 railroad company agreed that during the term of the contract the rate 
 of freight from all points on its road and connections should " not be 
 less than five dollars per car more to the Union Yards of Cincinnati 
 than the rate to Covington yai'ds from the same points ; " that its busi- 
 ness arrangements with any other railroad or transportation line should 
 be subject to this agreement ; and that the yards of the Stock-Yards 
 Company " shall be the depot for all live stock received from its con- 
 nections for Cincinnati or Eastern markets." The agreement b}' its 
 terms was to remain in force for fifteen years.
 
 COVINGTON STOCK-YA.RDS COMPANY V. KEITH. 105 
 
 In the progress of the cause E. W. "Wilson, by consent of parties, 
 was made a co-petitioner and co-respondent with Keith. 
 
 By the final decree it was found, ordered, and decreed as follows : 
 " It is the duty and legal obligation of the Kentucky Central Railroad 
 Company, as a common carrier of live stock, to provide suitable and 
 convenient means and facilities for receiving on board its cars all live 
 stock offered for shipment over its road and its connections from the 
 city of Covington, and for the discharge from its cars of all live stock 
 brought over its road to the said city of Covington, free of any 
 charge other than the customary transportation charges to consignors 
 or consignees ; and that the said petitioners, Keith and Wilson, live- 
 stock dealers and brokers, doing business at the cit} - of Covington, and 
 proprietors of the Banner Stock- Yards at that place, are entitled to so 
 ship and receive over said road such live stock without being subject to 
 any such additional charges imposed by said receiver, said railroad 
 company, or other person or corporation. The court further finds and 
 decrees that the alleged contract entered into by and between the said 
 railroad company and the said Covington Stock-Yards Company, of 
 date the 19th day of November, 1881, does not entitle the said Stock- 
 Yards Company to impose upon any shipper of live stock over said 
 road, passing such stock through the 3'ards of said company to and 
 from the cars of said railroad compan}', an}* charge whatever for such 
 passage. It is stipulated in said contract that said Stock- Yards Com- 
 pany shall establish and maintain suitable yards or pens for receiving, 
 housing, feeding, and caring for live stock, and to receive all such 
 stock, and load and unload the same upon and from the cars of said 
 company transported on or to be transported over said road for a com- 
 pensation of sixty cents per car load, to be paid by said railroad company 
 for and during the period of fifteen years from the date of said contract, 
 which has not vet expired, while the said railroad company agreed that 
 it would not during said period establish or allow to be established on 
 the line of its road or on its right of way in said city of Covington any 
 other platform or depot than that of said Stock-Yards Company for the 
 receipt or delivery of such live stock. . . . The court doth further find 
 that the general freight depot of the said railroad company in the said 
 city of Covington, at the terminus of its road between Pike and Eighth 
 Streets, is not a suitable or convenient place for the receipt and delivery 
 of live stock brought to the said city or to be shipped therefrom over 
 said road, and neither said railroad company nor said receiver having 
 provided such suitable depot or place therefor, except the yards of said 
 Stock-Yards Company, it is now ordered and decreed that the said rail- 
 road company and said receiver shall hereafter receive and deliver from 
 and to the said Keith & Wilson at and through the said Covington 
 stock yards all such live stock as may be brought to them or offered by 
 them for shipment over said road and its connections, upon the consent 
 of said stock yards, in writing, that it may be so done, being filed in 
 this court and cause on or before the 1st day of January next after the
 
 106 COVINGTON STOCK-YARDS COMPANY V. KEITH. 
 
 entry of this decree, free of any charge for passing through said yards 
 to and from the cars of said railroad company. In default of snch con- 
 sent being so filed, it is ordered and decreed that upon said Keith & 
 Wilson putting the platform and chute erected by them on the land of 
 said Keith adjacent to the live-stock switch of said railroad compan}' 
 north of said stock yards the said railroad compan}- and said receiver 
 shall receive and deliver all such live stock to said Keith & Wilson as 
 shall be consigned to them or either of them or be offered b} T them or 
 either of them for shipment at said platform. The said Keith & Wilson 
 shall provide an agent or representative at said platform to receive such 
 cattle as they may be notified by said railroad company or said receiver 
 are to be delivered to them thereat, and they shall give the said rail- 
 road company or said receiver reasonable notice of any shipment 
 desired to be made by them from said platform to conform to the de- 
 parture of live-stock trains on said road." 
 
 The railroad compan}', holding itself out as a carrier of live stock, 
 was under a legal obligation, arising out of the nature of its employ- 
 ment, to provide suitable and necessary means and facilities for receiv- 
 ing live stock offered to it for shipment over its road and connections, 
 as well as for discharging such stock after it reaches the place to which 
 it is consigned. The vital question in respect to such matters is, 
 whether the means and facilities so furnished b} T the carrier or by some 
 one in its behalf are sufficient for the reasonable accommodation of 
 the public. But it is contended that the decree is erroneous so far as 
 it compels the railroad company to receive live stock offered by the ap- 
 pellees for shipment and to deliver live stock consigned to them, free 
 from any charge other than the customaiy one for transportation, for 
 merely passing into and through the yards of the Covington Stock- 
 Yards Compan}' to and from the cars of the railroad compan} - . As the 
 decree does not require such stock to be delivered in or through the 
 yards of the appellant, except with its written consent filed in this 
 cause ; as such stock cannot be properly loaded upon or unloaded from 
 cars within the limits of the city, except by means of inclosed lots or 
 yards set apart for that purpose, and conveniently located, in or through 
 which the stock may be received from the shipper or delivered to the 
 consignee, without danger or inconvenience to the public in the vicinity 
 of the place of shipment or discharge ; and as the appellant has volun- 
 tarily undertaken to discharge the duty in these matters that rests upon 
 the railroad company', the contention just adverted to, is, in effect, that 
 the carrier may, without a special contract for that purpose, require 
 the shipper or consignee, in addition to the customary and legitimate 
 charges for transportation, to compensate it for supplying the means 
 and facilities that must be provided by it in order to meet its obligations 
 to the public. To this proposition we cannot give our assent. 
 
 When animals are offered to a carrier of live stock to be transported 
 it is its duty to receive them ; and that duty cannot be efficiently dis- 
 charged, at least in a town or city, without the aid of yards in which
 
 COVINGTON STOCK-YARDS COMPANY V. KEITH. 107 
 
 the stock offered for shipment can be received and handled with safety 
 and without inconvenience to the public while being loaded upon the 
 cars in which they are to be transported. So, when live stock reach 
 the place to which they are consigned, it is the duty of the carrier to 
 deliver them to the consignee ; and such delivery cannot be safely or 
 effectively made except in or through inclosed yards or lots, convenient 
 to the place of unloading. In other words, the duty to receive, trans- 
 port, and deliver live stock will not be fully discharged, unless the 
 carrier makes such provision, at the place of loading, as will enable it 
 to properly receive and load the stock, and such provision, at the place 
 of unloading, as will enable it to properly deliver the stock to the 
 consignee. 
 
 A railroad company, it is true, is not a carrier of live stock with all 
 the responsibilities that attend it as a carrier of goods. North Penn. 
 Railroad v. Commercial Bank, 123 U. S. 727, 734. There are recog- 
 nized limitations upon the dut} r and responsibility of carriers of inani- 
 mate property that do not apply to carriers of live stock. These 
 limitations arise from the nature of the particular property transported. 
 "But," this court said, in the case just cited, "notwithstanding this 
 difference in duties and responsibilities, the railroad company, when it 
 undertakes generally to carry such freight, becomes subject, under 
 similar conditions, to the same obligations, so far as the delivery of 
 the animals which are safely transported is concerned, as in the case of 
 goods. The}' are to be delivered at the place of destination to the 
 party designated to receive them if he presents himself, or can with 
 reasonable efforts be found, or to his order. No obligation of the car- 
 rier, whether the freight consists of goods or live stock, is more strictly 
 enforced." L The same principle necessarily applies to the receiving of 
 live stock by the carrier for transportation. The carrier must at all 
 times be in proper condition both to receive from the shipper and to 
 deliver to the consignee, according to the nature of the property to be 
 transported, as well as to the necessities of the respective localities in 
 which it is received and delivered. A carrier of live stock has no more 
 right to make a special charge for merely receiving or merely delivering 
 such stock, in and through stock yards provided by itself, in order that 
 it may properly receive and load, or unload and deliver, such stock, 
 than a carrier of passengers may make a special charge for the use of 
 
 1 Myrick v. Michigan Central Railroad, 107 U S. 102, 107 ; Hall & Co. v. Renfro, 
 
 3 Met (Ivy.) 51, 54; Mynard v. Syracuse & Binghamton Railroad, 71 N. Y. 180; 
 Smith v. New Haven & Northampton Railroad, 12 Allen, 531. 533 ; Kimball v. Rutland 
 & Burlington Railroad, 26 Vt. 247 ; South & North Alabama Railroad Company v, 
 Heulein, 52 Ala. 606, 613 ; Wilson v. Hamilton, 4 Ohio St. 722, 740 ; Ayres i\ Chicago 
 & Northwestern Railroad, 71 Wis. 372, 379, 381 ; McCoy v. K. & 1)'. M. R. Co., 44 
 Iowa, 424, 426; Maslin v. B. & O. R. R. Co., 14 W. Va. 180, 188; St. Louis & South- 
 eastern Railway v. Dorman, 72 111. 504; Moulton v. St. Paul, Minneapolis, &c. Rail- 
 way, 31 Minn. 85, 87 ; Kansas Pacific Railway r. Nichols, 9 Kas. 235, 248 ; Clarke >•. 
 Rochester & Syracuse Railroad, 14 N. Y 570, 573; Palmer v. Grand Junction Railway, 
 
 4 M. & W. 749.
 
 108 COVINGTON STOCK-YARDS COMPANY V. KEITH. 
 
 its passenger depot by passengers when proceeding to or coming from 
 its trains, or than a carrier may charge the shipper for the use of its 
 general freight depot in merely delivering his goods for shipment, or 
 the consignee of such goods for its use in merely receiving them there 
 within a reasonable time after they are unloaded from the cars. If the 
 carrier may not make such special charges in respect to stock yards 
 which itself owns, maintains, or controls, it cannot invest another cor- 
 poration or company with authority to impose burdens of that kind 
 apon shippers and consignees. The transportation of live stock begins 
 with their delivery to the carrier to be loaded upon its cars, and ends 
 onlv after the stock is unloaded and delivered, or offered to be deliv- 
 ered, to the consignee, if to be found, at such place as admits of their 
 being safely taken into possession. 
 
 We must not be understood as holding that the railroad compan}-, in 
 this case, was under any legal obligation to furnish, or cause to be fur- 
 nished, suitable and convenient appliances for receiving and delivering 
 live stock at every point on its line in the city of Covington where per- 
 sons engaged in buying, selling, or shipping live stock, chose to estab- 
 lish stock yards. In respect to the mere loading and unloading of live 
 stock, it is only required b}- the nature of its employment to furnish 
 such facilities as are reasonably sufficient for the business at that city. 
 So far as the record discloses, the yards maintained by the appellants 
 are, for the purposes just stated, equal to all the needs, at that city, of 
 shippers and consignees of live stock ; and if the appellee had been 
 permitted to use them, without extra charge for mere tk yardage," they 
 would have been without just ground of complaint in that regard ; for 
 it did not concern them whether the railroad company itself maintained 
 stock yards, or employed another company or corporation to supply 
 the facilities for receiving and delivering live stock it was under obli- 
 gation to the public to furnish. But as the appellant did not accord to 
 appellees the privileges they were entitled to from its principal, the 
 carrier, and as the carrier did not offer to establish a stock yard of its 
 own for shippers and consignees, the court below did not err in requir- 
 ing the railroad company and the receiver to receive and deliver live 
 stock from and to the appellees at their own stock yards in the imme- 
 diate vicinity of appellant's yards, when the former were put in proper 
 condition to be used for that purpose, under such reasonable regulations 
 as the railroad company might establish. It was not within the power 
 of the railroad company, by such an agreement as that of November 
 19, 1881, or by agreement in any form, to burden the appellees with 
 charges for services it was bound to render without any other compen- 
 sation than the customary charges for transportation. 
 
 Decree affirmed.
 
 BUTCHERS', ETC. STOCK-YARD CO. V. LOUIS. & NASH. R. 109 
 
 BUTCHERS' & DROVERS' STOCK-YARD CO. v. LOUIS- 
 VILLE & NASHVILLE RAILROAD. 
 
 Circuit Court of Appeals, Sixth Circuit, 1895. 
 
 [67 Fed. 35 ] 
 
 Taft, Circuit Judge, delivered the opinion of the court. 1 
 
 This is an action in equity by a stock-yards company for a manda- 
 tory injunction to compel a railroad company to build, or to allow to 
 be built, a side track connecting a spur track of the railroad company 
 with the stock yards of the complainant, and there to deliver and re- 
 ceive all cattle consigned to and shipped by the complainant. The 
 defendant answered, and the cause was heard on pleadings and evi- 
 dence, and resulted in a dismissal of the bill. The complainant ap- 
 peals. The facts are substantially as follows: The complainant, the 
 Butchers' & Drovers' Stock-Yards Company, was organized under 
 the laws of Tennessee, and entered upon its business in 1889. It 
 has a stock yard within the city limits of the city of Nashville, and 
 near to the business centre thereof. The Louisville & Nashville 
 Railroad Company is a corporation of Kentucky, whose line of 
 railroad extends to and through Nashville from Louisville. In 1890 
 the city council of the city of Nashville passed an ordinance permit- 
 ting the defendant company to lay a spur track from its main track 
 along Front Street in said city. . . . 
 
 Sidings were laid by the defendant from the spur track to the prop- 
 erty of W. G. Bush & Co., Jacob Shaffer, Levi Langham, and the 
 Capitol Electric Company, and others, under contracts made by the 
 railroad company with these parties, in each of which the defendant 
 retained the right to disconnect the siding from the spur track at any 
 time without notice to the other party. The persons or firms with 
 whom these contracts were made were manufacturing firms or coal 
 dealers. They all owned land abutting on Front Street. Complain- 
 ant is engaged in receiving, feeding, weighing, selling, and shipping 
 live stock for the general public. Its yards are a block away from 
 the defendant's main line. ... In 1891, after the spur track and 
 the sidings already alluded to had been constructed, the complainant 
 requested the defendant that a siding be so constructed in front of 
 complainant's property as to allow the transportation of live stock 
 to and from its establishment in car-load lots, and that the same 
 facilities for transportation be afforded to it as were enjoyed by 
 Bush & Co. and the others who then had sidings. . . . 
 
 Defendant's attorney answered complainant's request, and stated 
 that, inasmuch as the siding proposed appeared to be desired solely 
 for the purpose of receiving and delivering live stock at defendant's 
 yards, and the railroad company had provided a station for this 
 purpose at Nashville, the establishment of another was declined. 
 
 1 Part of the opinion is omitted. — Ed.
 
 110 BUTCHERS', ETC. STOCK-YARD CO. V. LOUIS. & NASH. R. 
 
 The stock-yards station referred to was that of the Union Stock- 
 Yards Company, . . . about a mile and a half from the stock yards 
 of the complainant. The evidence in the record, some of which was 
 admitted, and some of which was excluded by the court below, shows 
 that no charge beyond the ordinary charge for transportation is made 
 for the loading and unloading of cattle at the stock yards to the 
 shipper or consignee; that after the cattle have been unloaded, and 
 have not been taken away by the consignee from the yard for two or 
 three hours, they are then turned into the pens of the stock yards, 
 where a charge of two dollars per car for a day or part of a day is 
 made by the stock-yards company for keeping them, until the con- 
 signee takes them away. When cattle arrive at night, the usual 
 result is that they are turned into the pens, because the consignee 
 cannot drive them through the streets at night. There was evidence 
 also of a charge of five or ten cents per head by the stock-yards com- 
 pany if, after the cattle have been priced in the Union Yards, they 
 are removed without sale to another stock yard. . . . 
 
 It is insisted that the court will not establish a right that may be 
 dissolved at the will of the defendant. The railroad company reserves 
 the right in its contract with Bush to take up the spur track at any 
 time, and therefore it is said that it cannot be compelled to do that 
 for the complainant which it might at once cease to do by taking up 
 the track. This objection is untenable. The gravamen of the charge 
 in the bill is that the railroad company is discriminating against the 
 complainant, and in favor of those to whom sidings from the spur 
 track are permitted, and that it should be granted equal facilities 
 with such persons. The prayer is in form for an injunction against 
 the discrimination. If the spur track is taken up, then all who enjoy 
 it will be placed on an equal footing and at an equal disadvantage. 
 But complainant's claim is that, while others enjoy the spur track, it 
 also should have the same facilities. It is clearly no defense to a 
 charge of discrimination that the facilities furnished the favored 
 person may be withdrawn at the will of the one who grants them. 
 
 We are therefore brought to the issue whether or not there is any 
 discrimination between those who have side-track connections on 
 Front Street and the complainant. This depends on two questions: 
 First. Is it a discrimination which can be controlled or restrained 
 by the courts for a railroad company to furnish a side track to one 
 of its customers, and to refuse such accommodation to another 
 similarly situated? Second. Conceding an affirmative answer to the 
 first question, is there such a difference between the facilities de- 
 manded by the complainant and those extended to its neighbors on 
 Front Street, in respect of the comparative burdens which must be 
 assumed by the railway company in granting them, as to justify the 
 latter in making the distinction it insists upon? 
 
 The first question is one full of difficulty, both at common law, 
 upon the principles of which this case must be decided, and also
 
 BUTCHERS', ETC. STOCK-YARD CO. V. LOUIS. & NASH. R. Ill 
 
 under the interstate commerce act. Because Ave are able to satis- 
 factorily dispose of the case on the second question, we reserve con- 
 sideration of the first until the case arises which requires it. We ar< 
 clearly of opinion that, however unjust and unlawful it may be for a 
 railroad company having furnished a side track to one shipper to 
 refuse it to another similarly situated, the difference in this case be- 
 tween the business of the complainant and that of the other abutters 
 upon the spur track is so great as to make the refusal of the railroad 
 company to grant the side track to the complainant entirely reason- 
 able. The difference between the duties of a common carrier in the 
 transportation of live stock and of dead freight has been remarked 
 upon more than once by the Supreme Court of the United States. 
 North Pennsylvania R. Co. v. Commercial Nat. Bank, 12:; U. S. 
 727-734; Stock-Yards Co. v. Keith, 139 U. S. 128-133. The evi- 
 dence clearly shows that the delivery of car-load lots of dead freight 
 and the receipt of them by side tracks is much less onerous, and 
 involves much less care and responsibility for the railroad company, 
 than would the receipt of live stock from a private yard by side 
 track. One of the chief reasons why deliveries and shipments of rail- 
 road car-load lots by side track are possible and consistent with the 
 conduct of the business of a large trunk line is that the loaded car 
 may stand upon a side track for hours, or even a day, until the rail- 
 road company finds it convenient to back its engine down and take it. 
 Such delays are utterly impossible in the proper transportation of car 
 loads of live stock. When they are loaded, they must be moved. 
 The evidence shows that in other respects the supervision of the 
 switching of cattle cars would be much more expensive and trouble- 
 some to the railway company than dead freight. Indeed, it hardly 
 needs expert evidence to establish it. There is no ground, therefore, 
 for any charge of unjust discrimination against the defendant railway 
 company as between complainant and the Front Street shippers. 
 
 We come now to the charge of discrimination as between the Butch- 
 ers' & Drovers' Stock-Yards Company and the Union Stock- Yards 
 Company. [The court here stated the case of Stock-Yards Co. v. 
 Keith, 139 U. S 128, and quoted at length from the opinion in that 
 case.] 
 
 In view of the principles laid down in this case, the complainant 
 has no ground for objection to the arrangement between the Union 
 Stock-Yards Company and the Louisville & Nashville Bail road Com- 
 pany. The latter uses the chutes and yards of the Union Stock-Yards 
 Company to deliver and receive cattle at that point as its station 
 without any yardage charge or fee for the proper loading and unload- 
 ing of cattle. The evidence wholly fails to support the charge of the 
 bill that the facilities afforded by the Union Stock Yards are not 
 ample for the business of Nashville. The evidence establishes that 
 no charge is made by the Union Stock-Yards Company for two hours 
 after the cattle are delivered from the cars. There is no evidence to
 
 112 WALKEK V. KEEN AN. 
 
 show that it would be unreasonable in the railroad company, were it 
 the owner of the stock yards, to impose a charge for delay of the 
 consignee in taking his cattle beyond two hours after unloading; 
 and, in the absence of such showing, we cannot say that it is unrea- 
 sonable for the railroad company to permit its agent, the stockyards 
 company, to make a charge of two dollars per car for turning the 
 cattle into the pens and keeping them there after such a delay. The 
 discrimination averred and sought to be proven by evidence that, 
 after the cattle have been priced in the pen, they cannot be taken to 
 another yard without paying a fee, concerns the business of the 
 stock-yards company, and not that of the railroad company, whose 
 responsibility ends after the cattle are properly delivered or tendered 
 to the consignee. Of course, the railroad company in delivering the 
 cattle to the stock-yards company, to keep until the appearance of the 
 consignee, can incur only a reasonable charge for the keeping of the 
 cattle. More than this, the consignee is not obliged to pay the stock- 
 yards company. If, however, he thereafter chooses to deal with the 
 stock-yards company as a factor or sales agent, and to put a price 
 upon his cattle for sale, the charges then imposed by the regulations 
 of the stock-yards company, in case of a withdrawal of the cattle to 
 another stock yard for sale, are wholly outside the question of dis- 
 crimination by the railroad company as a common carrier. The 
 contract between the defendants and the Union Company requires 
 rates charged by the latter to be reasonable. There is no attempt in 
 the record to show that the charge for the simple keep of the cattle in 
 the pens is unreasonable or any higher than the railway company 
 itself might charge for such service. 
 
 The decree of the court below is affirmed, with costs. 
 
 WALKER v. KEENAN. 
 
 Circuit Court of Appeals, Seventh Circuit, 1896. 
 
 [73 Fed. 755.] 
 
 Showalter, Circuit Judge. 1 In Covington Stock-Yards Co. v. 
 Keith, 139 U. S. 128, ... the court ordered the receivers, in the 
 event that they or their agent in that behalf, the Covington Stock- 
 Yards Company, should choose not to permit Keith thereafter to 
 take his cattle through their yards without the 60 cents charge, to 
 allow him to replace his platforms and chutes, and to unload and 
 deliver to him thereat (he, or some agent employed by him, being 
 then present to take charge of such cattle) all cattle consigned to him 
 or to his yards. This ruling was affirmed by the Supreme Court of 
 the United States. 
 
 1 Part of the opinion is omitted. — Ed.
 
 WALKER V. KEENAN. 113 
 
 As incidental to its business of transporting or hauling cattle, a 
 railroad company must provide the means of loading, unloading, and 
 caring for such freight pending its delivery to the consignee. The 
 hauling the cattle from one point to another, and the providing the 
 car, track, engine, and servants for that purpose, are no more a part 
 of the service rendered by the carrier than are the loading ami un- 
 loading and the providing the appliances and servants for those pur- 
 poses. Nor, in the nature of things, is there any reason why, if the 
 public convenience be subserved thereby, the compensation may not 
 be apportioned so that so much may be paid for the loading and the 
 hauling, and so much for the unloading and the care of the animals 
 pending delivery. It was not necessarily a hardship or wrong, as 
 against the ordinary consignee at Covington, that he pay the charge 
 of 60 cents per car for unloading, etc., to the agent in charge of the 
 stock yards there. Such charge ought, of course, to be specified, as 
 now provided by the interstate commerce law, in connection with the 
 tariff schedule, in order that the shipper may be advised of the same. 
 The question whether a person to whom cattle were consigned for 
 delivery at the Covington Stock Yards could have resisted the charge 
 of 60 cents per car was not before the court in the Keith Case; nor 
 could the court have ruled in the affirmative on such question, assum- 
 ing due notice to the shipper beforehand, without, in effect, compel- 
 ling the railroad company to perform, for nothing, part of the service 
 comprehended in its obligations as a carrier. Keith's Case stood on 
 its own facts. Keith having, without inconvenience, so far as 
 appears, to the public or to the railroad company, and apparently by 
 its permission or the permission of the receivers, himself provided 
 the facilities and appliances for unloading into his yards cattle con- 
 signed to his firm, the railroad company or the receivers representing 
 it, on the one hand, no longer owed to him, as respected cattle con- 
 signed to his yards, the duty of providing such structures and appli- 
 ances; nor, on the other, was Keith bound to pay the railroad com- 
 pany or its agent in that behalf, the Covington Stock- Yards Com- 
 pany, any charge which, on the face of the case, was distinctly a 
 compensation for the performance of such duty. The Case of Keith, 
 furthermore, shows the expediency and propriety of separating and 
 apportioning the compensation to the carrier, so that the instrumen- 
 talities for and the service of unloading need not be paid for when 
 the cousignee has no occasion to use said instrumentalities or to exact 
 such service. That decision, on its ultimate and essential facts, is 
 that a railroad company, when the means for the unloading and 
 delivery of cattle have been provided by the consignee himself at a 
 convenient point on its line of road, may not refuse to make such 
 delivery for the sole and only purpose of compelling such consignee 
 to pay a charge fixed by the company in response to its obligation to 
 provide the means of unloading for consignees who must, necessarily, 
 require that service. If Keith's yards had been at some point in 
 
 8
 
 114 WALKER V. KEEXAN. 
 
 Covington, remote from the Kentucky Central track, and he had, by 
 the license of the Kentucky Central Railroad Company or the receiv- 
 ers, extended a track of his own from the Kentucky Central track to 
 his yards, and had there equipped a station for unloading, there 
 would have been no obligation on the railroad company to Keith or 
 his patrons to provide a depot on its line for the unloading of cattle 
 consigned to his yards; nor could Keith have referred to such sup- 
 posititious obligation as a reason for resisting compensation to the 
 railroad company for the service of moving cattle cars from its line 
 over his track to his yards. 
 
 In the case at bar. appellants, with their own engines and switching 
 crew, remove the cars laden with cattle from a point on the Chicago 
 end of their line, over the track of the Union Stock-Yards & Transit 
 Company, to the Union Stock Yards. For this transfer from their 
 own line to the stock yards, they charge, as stated on the tariff 
 schedule, 82 per car. All the petitioners do business at the Union 
 Stock Yards. It is the understanding between them and appellants 
 that cattle cars consigned to them are to be taken to the Union Stock 
 Yards, and there unloaded. Upon the general and ordinary obliga- 
 tion of a common carrier of such freight to provide the appliances 
 for unloading, and 14)011 the fart that appellants have not provided 
 means for unloading and delivering cattle at their freight depot in 
 Chicago, petitioners argue: First, that the $2 per car is for depot 
 facilities at the stock yards; ami. second, that the stock-yards station 
 niusi be held to be appellants' "Chicago station," in the same sense 
 as would be the terminal station at Twelfth and State Streets if cattle 
 yards and facilities for unloading were there provided. But the 
 obligation ol' appellants to furnish delivery facilities upon their line 
 of road in Chicago is not due to these petitioners with respect to 
 Cattle which appellants are expected to bring to the Union Stcck 
 Yards. Petitioners do not desire their cattle unloaded and delivered 
 at any point in Chicago on appellants' line of road. The $2 per car 
 is not a charge for the use of the inclosures ami station fittings at the 
 stock yards, but for moving thecals from the line of appellants' road, 
 and over the line of another company (which company exacts from 
 appellants a toll of NO cents per car', to a point in Chicago on said 
 last-named line. The case is the same as though petitioners them- 
 selves owned the stock yards, and the delivery station there, and the 
 tracks leading to said station, and appellants charged them $1.20 for 
 transferring a car from appellants' line in Chicago to said stock- 
 yards station. If facilities for unloading cattle cars were provided 
 by appellants at their station in Chicago (the showing of the record 
 being otherwise, as it is), the fact would be immaterial, since the 
 petitioners' cattle must be taken by appellants to the Union Stock 
 Yards. Appellants' failure to supply unloading facilities at its 
 Chicago terminal station can in no way affect the rights of a litigant 
 who, in view of the question at issue, could in no event have benefited 
 by such facilities.
 
 WALK r. I; V. EEENAN. 115 
 
 The learned counsel for appellees treat the Covington Case as a pro- 
 nouncement by the supreme court that the receivers there must forego 
 their 60 cents per car, and let Keith's cattle be delivered through the 
 Covington Stock Yards, unconditionally. On the contrary, the 
 essential and central fact upon which the judgment went was. as 
 already explained, that Keith's yards adjoined the track, and be had, 
 without hurt to the railroad company or to the public, and apparently 
 by the license of the company, provide.) the means of unloading into 
 his own yards. He had no occasion to avail himself of the service 
 of. and the instrumentalities provided by, the Covington Stock-Yards 
 Company, the concern which had assumed, to that extent, the duty of 
 the carrier; hence the order that his cattle must either be unloaded 
 into his own yards, or else passed free of charge through the yards 
 controlled by the Covington Stock- Yards Company for the railroad. 
 If the rule of law had been as counsel for these appellees contend, 
 then the order would have been that Keith's cattle he unloaded free 
 of charge into the yards used by the railroad company, without any 
 alternative. The alternative implies that except in the case of Keith, 
 or of a person having cattle yards and unloading facilities in Coving- 
 ton similarly situated with respect to the road operated by the 
 receivers, the yards provided by the railroad company or the re- 
 ceivers as a place of delivery must be used, and the 60 cents paid as 
 a proper item in the freight charge. To any assumed rule of law that 
 a carrier could not divide into two or more items his freight charge 
 for carrying live stock, so that the instrumentalities for unloading 
 and delivery need not be paid for by consignees who are themselves 
 prepared to receive their cattle directly from the cars, the decision 
 in the Covington Case cannot be referred. The opinion states no 
 such rule; nor can any such rule be evolved therefrom consistently 
 with the judgment of the court. 
 
 When, as here, the delivery is to be made in Chicago, but at a 
 point away from the carrier's line, and by means of a track not owned 
 or possessed by the carrier, the printed schedule of such carrier show- 
 ing in two items the compensation exacted for the haul to Chicago, 
 and that exacted for the transfer in Chicago to the point of delivery, 
 the theory that such carrier is bound by law to unload such freight 
 at a station on its own line in Chicago, and that the transfer from its 
 line to a point on the other line for the purpose of delivering at the 
 latter point (being an equivalent or substitute for what ought to have 
 been done pursuant to such supposed obligation) is comprehended in 
 the service of hauling to some station on its line in Chicago, is 
 unsound. One side of the proposed equation is mythical. There is 
 no obligation on the carrier in such a case, and as to such a consign- 
 ment, to unload at a station on its line in Chicago, or to provide 
 unloading and delivery facilities at such station. In the carrier's 
 charge for the haul to any station or point on its line in Chicago, in 
 such a case, there is not comprehended any compensation for unload-
 
 116 AYRES V. CHICAGO & NORTHWESTERN RAILWAY. 
 
 ing facilities at such station or point. The 23^ cents per hundred- 
 weight pays these appellants for hauling from Kansas City to a 
 station or point on their line in Chicago, the $2 per car pays for the 
 transfer thence to the stock yards, where the consignees desire the 
 delivery to be made. 
 
 The Covington Case was prior to the interstate commerce law. 
 Within the express terms of the second paragraph of section 6, quoted 
 in the statement which precedes this opinion, the total compensation 
 to the carrier for his services as carrier may be divided into at least 
 two items. The separation by these appellants of their charge for 
 loading and hauling to Chicago from their charge for transferring 
 from their line in Chicago to a specified point in Chicago, away from 
 their line, is authorized by the statute. No satisfactory reason sug- 
 gests itself against the legality and propriety, under special circum- 
 stances, such as exist here and as existed in the Covington Case, of 
 such a division of his compensation by a carrier even apart from the 
 statute. The learned district judge who made the order appealed 
 from evidently understood the opinion in the Covington Case to imply 
 that no division of a carrier's charge could be made. If this were 
 the sound construction of that case, the statute has changed the rule, 
 as already suggested. 
 
 It is not suggested, assuming any such charge as is here in ques- 
 tion to be legal at all, that the amount is unreasonable. The conten- 
 tion that the carriers must move cattle from their lines of road over 
 the track of the stock-yards company to the stock yards, without 
 compensation other than as contained in their charges for hauling to 
 points on their respective lines in Chicago (and this is what the 
 claim of these appellees amounts to), is invalid. 
 
 The order appealed from is reversed, and the cause remanded, with 
 the direction that said order be vacated, and the intervening petitions 
 dismissed, for want of equity. 
 
 AYRES v. CHICAGO & NORTHWESTERN RAILWAY. 
 
 Supreme Court of Wisconsin, 1888. 
 
 [71 Wis. 372: 37 N. W. 432] 
 
 The amended complaint is to the effect that the defendant, being a 
 common carrier engaged in the transportation of live stock, and accus- 
 tomed to furnish cars for all live stock offered, was notified by the 
 plaintiffs, on or about October 13, 1882, to have four such cars for the 
 transportation of cattle, hogs, and sheep at its station La Valle, and 
 three at its station Reedsburg, ready for loading on Tuesday morning, 
 October 17, 1882, for transportation to Chicago; that the defendant 
 neglected and refused to provide such cars at either of said stations for 
 four days, notwithstanding it was able and might reasonably have done
 
 AYRES V. CHICAGO & NORTHWESTERN RAILWAY. 117 
 
 so ; and also neglected and refused to carry said stock to Chicago with 
 reasonable diligence, so that the} - arrived there four days later than 
 they otherwise would have done ; whereby the plaintiffs suffered loss 
 and damage, by decrease in price and otherwise, Si, TOO. 1 
 
 Cassoday, J. We are forced to the conclusion that at the time 
 the plaintiffs applied for the cars the defendant was engaged in tin- 
 business of transporting live stock over its roads, including the line in 
 question, and that it was accustomed to furnish suitable cars therefor, 
 upon reasonable notice, whenever it was within its power to do so ; 
 and that it held itself out to the public generally as such carrier for hire 
 upon such terms and conditions as were prescribed in the written con- 
 tracts mentioned. These things, in our judgment, made the defendant 
 a common carrier of live stock, with such restrictions and limitations of 
 its common-law duties and liabilities as arose from the instincts, habits, 
 propensities, wants, necessities, vices, or locomotion of such animals, 
 under the contracts of carriage. This proposition is fairly deducible 
 from what was said in Richardson v. C. & N. W. R. Co., 61 Wis. 601, 
 and is supported by the logic of numerous cases. North Penn. R. Co. 
 v. Commercial Bank, 123 U. S. 727 ; Moulton v. St. P., M. & M. R, Co., 
 31 Minn. 85, 12 Am. & Eng. R. Cas. 13 ; Lindsley v. C, M. & St. P. 
 R. Co., 36 Minn. 539 ; Evans v. F. R. Co., Ill Mass. 142 ; Kimball v. 
 R. & B. R. Co., 26 Vt. 247, 62 Am. Dec. 567 ; Rixford t. Smith, 52 
 N. H. 355 ; Clarke v. R. & S. R. Co., 14 N. Y. 570, 67 Am. Dec. 205 ; 
 South & N. A. R. Co. v. Henlein, 52 Ala. 606 ; Baker v. L. & X. R. 
 Co., 10 Lea, 304, 16 Am. & Eng. R. Cas. 149 ; Philadelphia W. & B. 
 R. Co. v. Lehman, 56 Md. 209 ; McFadden v. M. P. R. Co., 92 Mo. 
 343 ; 3 Am. & Eng. Cyclop. Law, pp. 1-10, and cases there cited. 
 This is in harmony with the statement of Parke, B., in the case cited 
 by counsel for the defendant, that k ' at common law a carrier is not 
 bound to cany for every person tendering goods of any description, 
 but his obligation is to carry according to his public profession." 
 Johnson v. Midland R. Co., 4 Exch. 372. Being a common carrier of 
 live stock for hire, with the restrictions and limitations named, and 
 holding itself out to the public as such, the defendant is bound to fur- 
 nish suitable cars for such stock, upon reasonable notice, whenever it 
 can do so with reasonable diligence without jeopardizing its other busi- 
 ness as such common carrier. Texas & P. R. Co. v. Nicholson, 61 
 Tex. 491 ; Chicago & A. R. Co. v. Erickson, 91 ill. 613; Ballentine v. 
 N. M. R. Co , 40^ Mo. 491 ; Guinn v. W., St. L. & P. R. Co., 20 Mo. 
 A pp. 453. 
 
 Whether the defendant could with such diligence so furnish upon the 
 notice given, was necessarily a question of fact to be determined. The 
 plaintiffs, as such shippers, had the right to command the defendant to 
 furnish such cars. But they had no right to insist upon or expect com- 
 pliance, except upon giving reasonable notice of the time when they 
 would be required. To be reasonable, such notice must have been suf- 
 
 1 The statement of facts and part of the opinion are omitted. — Ed.
 
 118 AYRES V. CHICAGO & NOKTHWESTEEN RAILWAY. 
 
 ficient to enable the defendant, with reasonable diligence under the cir- 
 cumstances then existing, to furnish the cars without interfering with 
 previous orders from other shippers at the same station, or jeopardizing 
 its business on other portions of its road. It must be remembered that 
 the defendant has many lines of railroad scattered through several dif- 
 ferent States. Along each and all of these different lines it has stations 
 of more or less importance. 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 pre- 
 judice of other stations and other shippers. Most of such suitable cars 
 must necessarily be scattered along and upon such 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, and ma}- be such as to create a 
 great demand for such cars upon one or more of such lines, and very 
 little upon others. Such cars should be distributed along the different 
 lines of load, and the several stations on each, as near as ma}- be in 
 proportion to the ordinary business requirements at the time, in order 
 that shipments may be made with reasonable celerity. The require- 
 ment of such fair and general distribution and uniform vigilance is not 
 only mutually beneficial to producers, shippers, carriers, and purchasers, 
 but of business and trade generally, ft is the extent of such business 
 ordinarily done on a particular line, or at a particular station, which 
 properly measures the carrier's obligation to furnish such transporta- 
 tion. 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. These views are in harmony 
 with the adjudications last cited. 
 
 The important question is whether the burden was upon the plaintiff's 
 to prove that the defendant might, with such reasonable diligence and 
 without thus jeopardizing its other business, have furnished such cars 
 at the time ordered and upon the notice given ; or whether such burden 
 was upon the defendant to prove its inability to do so. We find no 
 direct adjudication upon the question. Ordinarily, a plaintiff alleging 
 a fact has the burden of proving it. This rule has been applied by this 
 court, even where the complaint alleges a negative, if it is susceptible 
 of proof b}' the plaintiff. Hepler v. State, 58 Wis. 46. But it has been 
 held otherwise where the only proof is peculiarly within the control of 
 the defendant. Mecklem v. Blake, 16 Wis. 102; Beckmann v. Henn, 
 17 Wis. 412; Noonan v. Ilsley, 21 Wis. 144; Great Western R. Co. 
 v. Bacon, 30 111. 352 ; Brown v. Brown, 30 La. Ann. 511. Here it may 
 have been possible for the plaintiffs to have proved that there were at 
 the times and stations named, or in the vicinity, empty cars, or cars 
 which had reached their destination and might have been emptied with
 
 STATE V. CINCINNATI, NEW ORLEANS & TEX. PAC. R. 119 
 
 reasonable diligence, but they could not know or prove, except by 
 agents of the defendant, that any of such cars were not subject to prior 
 orders or superior obligations. The ability of the defendant to so fur- 
 nish with ordinary diligence upon the notice given, upon the principles 
 stated was, as we think, peculiarly within the knowledge of the defend- 
 ant and its agents, and hence the burden was upon it to prove its in- 
 ability to do so. Where a shipper applies to the proper agency of a 
 railroad company engaged in the business of such common carrier of 
 live stock for such cars to be furnished at a time and station named, 
 it becomes the duty of the company to inform the shipper within a 
 reasonable time, if practicable, whether it is unable to so furnish, and 
 if it fails to give such notice, and has induced the shipper to believe 
 that the cars will be in readiness at the time and place named, and the 
 shipper, relying upon such conduct of the carrier, is present with his 
 live stock at the time and place named, and finds no cars, there would 
 seem to be no good reason why the company should not respond in 
 damages. Of course these observations do not involve the question 
 whether a railroad company may not refrain from engaging in such 
 business as a common carrier ; nor whether, having so engaged, it may 
 not discontinue the same. 
 
 The court very properly charged the jury, in effect, that if all the 
 cars had been furnished on time, as the two were, it was reasonable to 
 presume, in the absence of any proof of actionable negligence on the 
 part of the defendant, that they would have reached Chicago at the 
 same time the two did — to wit, Thursday, October 19, 1882, a. m., 
 whereas they did not arrive until Friday evening. This was in time, 
 however, for the market in Chicago on Saturday, October 21, 1882. 
 This necessarily limited the recovery to the expense of keeping, the 
 shrinkage, and depreciation in value from Thursday until Saturday. 
 Chicago & A. R. Co. v. Erickson, 91 111. 613. The trial court, how- 
 ever, refused to so limit the recovery, but left the jury at liberty to in- 
 clude such damages down to Monday, October 23, 1882. For this 
 manifest errror, and because there seems to have been a mistrial in 
 some other respects, the judgment of the circuit court is reversed, and 
 the cause is remanded for a new trial. 
 
 By the Court. — Ordered accordingly. 
 
 STATE v. CINCINNATI, NEW ORLEANS & TEXAS 
 PACIFIC RAILWAY. 
 
 Supreme Court op Ohio, 1890. 
 
 [47 Ohio St. 130: 23 N. E. 928.] 
 
 Bradbury, J. 1 These actions are brought under the fourth clause 
 of section 6761, Rev. St., which authorizes an action of quo warranto 
 
 1 Part of the opinion is omitted. — Ed.
 
 120 STATE V. CINCINNATI, NEW OELEANS & TEX. PAC. K. 
 
 to be brought against a corporation when it has misused a franchise, 
 privilege, or right conferred upon it by law, or when it claims or 
 holds, by contract or otherwise, or has exercised a franchise, privi- 
 lege, or right, in contravention of law. The petitions charge, among 
 other things, that the defendants misused their corporate powers and 
 franchises b}' discriminating in their rates of freight in favor of cer- 
 tain refiners of petroleum oil connected with the Standard Oil Com- 
 pany, by charging other shippers of like products unreasonable rates, 
 by arbitrarily and suddenly changing the same, and, finally, by 
 confederating with the favored shippers to create and foster a mon- 
 opoly in refined oil, to the injury of other refiners and the public; 
 and, further, that the defendants claimed and exercised, in contra- 
 vention of law, the right to charge, for shipping oil in tank-cars, a 
 lower rate of freight per 100 pounds than they charged for shipping 
 the satne in barrels, in car-load lots. The defendants, by answer, 
 among other matters, denied charging any shippers unreasonable 
 rates of freight, or that the} T arbitrarily or suddenly changed such 
 rates, and denied any confederacy with any one to establish a mon- 
 opoly. The actions were referred to a referee, to take the evidence, 
 and to report to this court his findings of fact and conclusions of 
 law therefrom, — all which has been done; and the cases are before 
 us upon this report. . . . 
 
 That the Cincinnati, Washington & Baltimore Railway Company 
 did discriminate in its rates for freight on petroleum oil in favor 
 of the Camden Consolidated Oil Company, and that the Cincin- 
 nati, New Orleans & Texas Pacific Railway Company did the 
 same in favor of the Chess-Carly Company, is shown by the find- 
 ing of the referee, which is clearly sustained by the evidence. That 
 these discriminating rates were in some instances strikingly exces- 
 sive, tended to foster a monopoly, tended to injure the competitors 
 of the favored shippers, and were in many instances prohibitory, 
 actually excluding these competitors from extensive and valuable 
 markets for their oil, giving to the favored shippers absolute control 
 thereof, is established beyond any serious controversy. The justi- 
 fication interposed is that this was not done pursuant to any con- 
 federacy with the favored shipper, or with any purpose to inflict 
 injury on their competitors, but in order that the railroad companies 
 might secure freight that would otherwise have been lost to them. 
 This we do not think sufficient. We are not unmindful of the diffi- 
 culties that stand in the way of prescribing a line of duty to a rail- 
 way company, nor do we undertake to say they may not pursue their 
 legitimate objects, and shape their policy to secure benefits to them- 
 selves, though it may press severely upon the interests of others ; but 
 we do hold that they cannot be permitted to foster or create a mon- 
 opoly, by giving to a favored shipper a discriminating rate of freight. 
 As common carriers, their duty is to carry indifferently for all who 
 may apply, and in the order in which the application is made, and
 
 STATE V. CINCINNATI, NEW OKLEANS & TEX. PAC. R. 121 
 
 upon the same terms; and the assumption of a right to make discrim- 
 inations in rates for freight, such as was claimed and exercised by 
 the defendants in this case, on the ground that it thereby secured 
 freight that it would otherwise lose, is a misuse of the rights and 
 privileges conferred upon it by law. A full and complete discussion 
 of the principles, and a thorough collation of the authorities, bearing 
 upon the duties of railroad companies towards their customers, is to 
 be found in the opinion of Judge Atherton, in the case of Scofield v. 
 Railway Co., 43 Ohio St. 571, to which nothing need be now added. 
 
 It appears that, of the two methods of shipping oil, — that by the 
 barrel, in car-load lots, and that in tank-cars, — the first only was 
 available to George Rice, and the other refiners of petroleum oil at 
 Marietta, Ohio, as they owned no tank-cars, nor did the defendants 
 own or undertake to provide any ; but that both methods were open 
 to the Camden Consolidated Oil Company and the Chess-Carly Com- 
 pany, by reason of their ownership of tank-cars, and that the rate per 
 barrel in tank-cars was very much lower than in barrel packages, in 
 box-cars; that in fact the Cincinnati, Washington & Baltimore Rail- 
 way Company, after allowing the Camden Consolidated Oil Company 
 a rebate, and allowing the Baltimore & Ohio Railway Company for 
 switching cars, received from the Camden Consolidated Oil Company 
 only about one-half the open rates it charged the Marietta refiners, 
 and that both railroad companies claimed the right to make different 
 rates, based upon the different methods of shipping oil, and the fact 
 of the ownership by shippers of the. tank-cars used by them. It was 
 the duty of the defendants to furnish suitable vehicles for transport- 
 ing freight offered to them for that purpose, and to offer equal terms 
 to all shippers. A railroad is an improved highway. The public 
 are equally entitled to its use. It must provide equal accommodation 
 for all, upon the same terms. The fact that one shipper may be pro- 
 vided with vehicles of his own entitles him to no advantage over his 
 competitor not so provided. The true rule is announced by the inter- 
 state commerce commission in the report of the case of Rice r. 
 Railroad Co. " The fact that the owner supplies the rolling stock 
 when his oil is shipped in tanks, in our opinion, is entitled to little 
 weight, when rates are under consideration. It is properly the busi- 
 ness of railroad companies to supply to their customers suitable, 
 vehicles of transportation (Railroad Co. v. Pratt, 22 Wall. 123) and 
 then to offer their use to everybody, impartially." 1 Int. St. Com. R. 
 547. No doubt, a shipper who owns cars may be paid a reasonable 
 compensation for their use, so that the compensation is not made a 
 cover for discriminating rates, or other advantages to such owner as 
 a shipper. Nor is there any valid objection to such owner using 
 them exclusively, as long as the carrier provides equal accommoda- 
 tions to its other customers. It may be claimed that if a railroad 
 company permit all shippers, indifferently and upon equal terms, to 
 provide cars suitable for their business, and to use them exclusively,
 
 122 JENCKS V. COLEMAN. 
 
 no discrimination is made. This may be theoretically true, but is 
 not so in its application to the actual state of the business of the 
 country ; for a very large proportion of the customers of a railroad 
 have not a volume of business large enough to •warrant equipping 
 themselves with cars, and might be put at a ruinous disadvantage in 
 the attempt to compete with more extensive establishments. Aside 
 from this, however, a shipper is not bound to provide a car. The 
 duty of providing suitable facilities for its customers rests upon the 
 railroad company; and if, instead of providing sufficient and suit- 
 able cars itself, this is done by certain of its customers, even for their 
 own convenience, yet the cars thus provided are to be regarded as 
 part of the equipment of the road. It being the duty of a railroad 
 company to transport freight for all persons, indifferently, and in 
 the order in which its transportation is applied for, it cannot be 
 permitted to suffer freight-cars to be placed upon its track by any 
 customer for his private use, except upon the condition that, if it 
 does not provide other cars sufficient to transport the freight of other 
 customers in the order that application is made, they may be used 
 for that purpose. Were this not so, a mode of discrimination fatal 
 to all successful competition by small establishments and operators 
 with larger and more opulent ones could be successfully adopted and 
 practiced at the will of the railroad company, and the favored 
 shipper. 
 
 The advantages, if any, to the carrier, presented by the tank-car 
 method of transporting oil over that by barrels, in box-cars, in car- 
 load lots, are not sufficient to justify any substantial difference in 
 the rate of freight for oil transported in that way; but if there were 
 any such advantages, as it is the duty of the carrier to furnish proper 
 vehicles for transporting it, if it failed in this duty, it could not, in 
 justice, avail itself of its own neglect as a ground of discrimination. 
 It must either provide tank-cars for all of its customers alike, or give 
 such rates of freight in barrel packages, by the car-load, as will 
 place its customers using that method on an equal footing with its 
 customers adopting the other method. Judgment ousting defendants 
 from the right to make or charge a rate of freight per 100 pounds for 
 transporting oil in iron tank-cars, substantially lower than for trans- 
 porting it in barrels, in car-load lots. 
 
 JENCKS v. COLEMAN. 
 Circuit Court of the United States, 1835. 
 
 [2 Sum. 221.] 
 
 Case for refusing to take the plaintiff on board of the steamboat 
 Benjamin Franklin (of which the defendant was commander), as a 
 passenger from Providence to Newport. Plea, the general issue.
 
 JENCKS V. COLEMAN. 123 
 
 The facts, as the}- appeared at the trial, were substantially as follow : 
 That the plaintiff was the agent of the Tremont line of stages, running 
 between Providence and Boston ; that his object was to take passage 
 in the boat to Newport, and then go on board the steamboat President, 
 on her passage from New York to Providence, on the next morning, 
 for the purpose of soliciting passengers for the Tremont line of stages 
 for Boston. This the proprietors of the President and Benjamin Frank- 
 lin had prohibited, and had given notice that they would not permit 
 agents of that line of stages to take passage in their boats for that 
 purpose. The reason assigned for such prohibition was, that it was 
 important for the proprietors of the steamboats, that the passengers 
 from their boats, for Boston, should find, at all times, on their arrival 
 at Providence, an immediate and expeditious passage to Boston. To 
 insure this object, the Citizens' Coach Company had contracted with 
 the steamboat proprietors to carry all the passengers, who wished to 
 go, in good carriages, at reasonable expedition and prices ; and the 
 commanders of the steamboats were to receive the fare, and make out 
 way-bills of the passengers, for the Citizens' Coach Company. This 
 they continued to perform. And, in order to counteract the effect of 
 this contract, — which had been offered the Tremont line, and de- 
 clined, — that line placed an agent on board the boats, to solicit 
 passengers for their coaches ; and, on being complained to by the 
 Citizens' Coach Company, the proprietors of the steamboats interdicted 
 such agents from coining on board their boats, and in this instance, 
 refused to permit the plaintiff to take passage in the boat for Newport, 
 though he tendered the customary fare. 
 
 The cause was argued by R. W. G-reene and Daniel Webster for the 
 plaintiff, and Iry Hirers and Whipple for the defendants. 
 
 For the plaintiff it was contended, that steamboat proprietors were 
 common-carriers, — and every person, conducting himself with propriety, 
 had a right to be carried, unless he had forfeited that right. 
 
 The plaintiff in this instance did conduct with propriety, and had not 
 forfeited his right to be carried by any improper misconduct. 
 
 The steamboat proprietors and Citizens' Coach Company had at- 
 tempted to establish a monopoly, which should not be countenanced, it 
 being against the public interest. Such a monopoly operated to increase 
 the price and prolong the time of passage from Providence to Boston ; 
 while open competition promoted the public interest and convenience, 
 b} T reducing the fare and expediting the passage. 
 
 The plaintiff, in this instance, requested to be conveyed from Provi- 
 dence to Newport; during which passage, it was well known, no pas- 
 sengers were to be solicited, — that was to be done only on the passage 
 from Newport to Providence. 
 
 For the defendant, it was contended, that the contract made by the 
 steamboat proprietors and the Citizens' Company, was legal, and sub- 
 served the public convenience, and the interest of the proprietors of the 
 boats and stages ; it insured to the passengers expeditious passages
 
 124 JENCKS V. COLEMAN. 
 
 at reasonable prices ; that the regulation, excluding the agents of the 
 Tremont line of stages from the steamboats, was legal and just, because 
 it was necessary to promote the foregoing objects, to wit: the public 
 convenience, and the interests of the proprietors of both the boats and 
 stages. Of this interdiction the plaintiff had received notice, and had 
 no legal right to complain. 
 
 Story, J., in summing up to the jury, after recapitulating the evi- 
 dence, said : There is no doubt, that this steamboat is a common carrier 
 of passengers for hire ; and, therefore, the defendant, as commander, 
 was bound to take the plaintiff as a passenger on board, if he had suit- 
 able accommodations, and there was no reasonable objection to the 
 character or conduct of the plaintiff. The question, then, really resolves 
 itself into the mere consideration, whether there was, in the present 
 case, upon the facts, a reasonable ground for the refusal. The right of 
 passengers to a passage on board of a steamboat is not an unlimited 
 right, but it is subject to such reasonable regulations as the propri- 
 etors may prescribe, for the due accommodation of passengers and for 
 the due arrangements of their business. The proprietors have not only 
 this right, but the farther right to consult and provide for their own in- 
 terests in the management of such boats, as a common incident to their 
 right of propeity. They are not bound to admit passengers on board 
 who refuse to obey the reasonable regulations of the boat, or who are 
 guilty of gross and vulgar habits of conduct ; or who make disturbances 
 on board ; or whose characters are doubtful or dissolute or suspicious ; 
 and, a fortiori, whose characters are unequivocally bad. Nor are they 
 bound to admit passengers on board whose object it is to interfere 
 with the interests or patronage of the proprietors, so as to make the 
 business less lucrative to them. 
 
 While, therefore, I agree that steamboat proprietors, holding them- 
 selves out as common carriers, are bound to receive passengers on 
 board under ordinary circumstances, I at the same time insist that 
 they ma}' refuse to receive them if there be a reasonable objection. 
 And as passengers are bound to obey the orders and regulations of the 
 proprietors, unless they are oppressive and grossly unreasonable, who- 
 ever goes on board, under ordinary circumstances, impliedly contracts 
 to obey such regulations ; and may justly be refused a passage, if he 
 wilfully resists or violates them. 
 
 Now, what are the circumstances of the present case? Jencks (the 
 plaintiff) was, at the time, the known agent of the Tremont line of 
 stage coaches. The proprietors of the Benjamin Franklin had, as he 
 well knew, entered into a contract with the owners of another line (the 
 Citizens' Stage Coach Company) to bring passengers from Boston to 
 Providence, and to carry passengers from Providence to Boston, in 
 connection with and to meet the steamboats plying between New York 
 and Providence, and belonging to the proprietors of the Franklin. 
 Such a contract was important, if not indispensable, to secure uni- 
 formity, punctuality, and certainty in the carriage of passengers on
 
 JENCKS V. COLEMAN. 125 
 
 both routes ; and might be material to the interests of the proprietors 
 of those steamboats. Jencks had been in the habit of coming on board 
 these steamboats at Providence, and going therein to Newport; and 
 common]}' of coming on board at Newport, and going to Providence, 
 avowedly for the purpose of soliciting passengers for the Tremont line, 
 and thus interfering with the patronage intended to be secured to the 
 Citizens' line by the arrangements made with the steamboat proprietors. 
 He had the fullest notice that the steamboat proprietors hud forbidden 
 any person to come on board for such purposes, as incompatible with 
 their interests. At the time when he came on board, as in the decla- 
 ration mentioned, there was every reason to presume that he was on 
 board for his ordinary purposes as agent. It has been said that the 
 proprietors had no right to inquire into his intent or motives. I cannot 
 admit that point. I think that the proprietors had a right to inquire 
 into such intent and motives ; and to act upon the reasonable presump- 
 tions which arose in regard to them. Suppose a known or suspected 
 thief were to come on board ; would they not have a right to refuse 
 him a passage? Might they not justly act upon the presumption that 
 his object was unlawful? Suppose a person were to come on board, 
 who was habitually drunk, and gross in his behavior, and obscene in 
 his language, so as to be a public annoyance ; might not the proprietors 
 refuse to allow him a passage? I think they might, upon the just 
 presumption of what his conduct would be. 
 
 It has been said b}' the learned counsel for the plaintiff, that Jencks 
 was going from Providence to Newport, and not coining back; and 
 that in going down, there would, from the very nature of the object, 
 be no solicitation of passengers. That does not necessarily follow ; 
 for he might be engaged in making preliminary engagements for the 
 return of some of them back again. But, supposing there were no 
 such solicitations, actual or intended, I do not think the case is essen- 
 tially changed. I think that the proprietors of the steamboats were 
 not bound to take a passenger from Providence to Newport, whose ob- 
 ject was, as a stationed agent of the Tremont line, thereby to acquire 
 facilities to enable him successfully to interfere with the interests of 
 these proprietors, or to do them an injury in their business. Let us take 
 the case of a ferryman. Is he bound to carry a passenger across a ferry, 
 whose object it is to commit a trespass upon his lands? A case still 
 more strongly in point, and which, in my judgment, completely meets 
 the present, is that of an innkeeper. Suppose passengers are accus- 
 tomed to breakfast, or dine, or sup at his house ; and an agent is em- 
 ployed bj* a rival house, at the distance of a few miles, to decoy the 
 passengers away the moment they arrive at the inn ; is the innkeeper 
 bound to entertain and lodge such agent, and thereby enable him to 
 accomplish the very objects of his mission, to the injury or ruin of 
 his own interests? I think not. 
 
 It has been also said, that the steamboat proprietors are bound to 
 carry passengers only between Providence and New York, and not to
 
 126 JENCKS V. COLEMAN. 
 
 transport them to Boston. Be it so, that the}' are not absolutely bound. 
 Yet thej' have a right to make a contract for this latter purpose, if they 
 choose ; and especially if it will facilitate the transportation of passen- 
 gers, and increase the patronage of their steamboats. I do not say 
 that the}" have a right to act oppressively in such cases. But certainly 
 they may in good faith make such contracts, to promote their own, as 
 well as the public interests. 
 
 The only real question, then, in the present case is, whether the con- 
 duct of the steamboat proprietors has been reasonable and bona fide. 
 They have entered into a contract with the Citizens' line of coaches 
 to carry all their passengers to and from Boston. Is this contract 
 reasonable in itself; and not designed to create an oppressive and mis- 
 chievous monopoly? There is no pretence to say that any passenger 
 in the steamboat is bound to go to or from Boston in the Citizens' line. 
 He may act as he pleases. It has been said by the learned counsel for 
 the plaintiff, that free competition is best for the public. But that is 
 not the question here. Men may reasonably differ from each other on 
 that point. Neither is the question here, whether the contract with the 
 Citizens' line was indispensable, or absolutely necessary, in order to 
 ensure the carriage of the passengers to and from Boston. But the 
 true question is, whether the contract is reasonable and proper in itself, 
 and entered into with good faith, and not for the purpose of an oppres- 
 sive monopoly. If the jury find the contract to be reasonable and proper 
 in itself and not oppressive, and they believe the purpose of Jencks in 
 going on board was to accomplish the objects of his agency, and in 
 violation of the reasonable regulations of the steamboat proprietors, 
 then their verdict ought to be for the defendant ; otherwise, to be for 
 the plaintiff. 
 
 Webster, for the plaintiff, then requested the Court to charge : That 
 the jury must be satisfied that this agreement was necessary or clearly 
 expedient for the public interest, and the interest of the proprietors of 
 the boats, or otherwise the captain of the boat could not enforce it, by 
 refusing the plaintiff a passage ; Or, that the defendant must show that 
 the substantial interest of the proprietors, or of the public, required an 
 arrangement, such as they had entered into, in order to jLustifv their 
 refusal to carry the plaintiff for the cause assigned. 
 
 The Court refused to give instruction in the manner and form as 
 prayed ; but did instruct the jury, that it is not necessary for the de- 
 fendant to prove, that the contract in the case was necessary to accom- 
 plish the objects therein stated ; but it is sufficient, if it was entered 
 into by the steamboat proprietors bona fide and purely for the purpose 
 of their own interest, and the accommodation of the public, from their 
 belief of its necessity, or its utility. If the jury should be of opinion 
 that, under all the circumstances of the case, it was a reasonable con- 
 tract, and the exclusion of the plaintiff was a l'easonable and proper 
 regulation to carry it into effect on the part of the steamboat propri- 
 etors, then their verdict ought to be in favor of the defendant; other- 
 wise, in favor of the plaintiff. Verdict for defendant.
 
 BENNETT V. DUTTON. 127 
 
 BENNETT v. DUTTON. 
 Supreme Court of New Hampshire, 1839. 
 
 [10 N. //. 481.] 
 
 Case. The declaration alleged that the defendant was part owner, 
 and driver, of a public stage coach, from Nashua to Amherst and 
 Francestown — that on the 31st January, 1837, the plaintiff applied to 
 him to be received into hfs coach, at Nashua, and conveyed from thence 
 to Amherst, offering to pay the customary fare; and that the defend- 
 ant, although there was room in his coach, refused to receive the 
 plaintiff. 
 
 It appeared in evidence that at the time of the grievance alleged 
 there were two rival lines of daily stages, running between Lowell, in 
 Massachusetts, and Nashua — that Jonathan B. French was the pro- 
 prietor of one of these lines, and Nelson Tuttle of the other — that 
 Tuttle's line ran no farther than from Lowell to Nashua — that French 
 and the proprietors of the defendant's line were interested in a contract 
 for carrying the United States mail from Lowell to Francestown, through 
 Amherst (dividing the mail money in proportion to the length of their 
 respective routes), so as to form one continuous mail route from Lowell 
 to Francestown — that French and the proprietors of the defendant's 
 line had agreed to run their respective coaches so as to form a contin- 
 uous line for passengers from Lowell, through Amherst, to Frances- 
 town, and that their agents and drivers might engage seats for the 
 whole distance, at such rates of fare as they thought expedient ; and 
 the amount thus received, in instances where they thought proper to 
 receive less than the regular fare, was to be divided between said pro- 
 prietors, in proportion to the length of their respective routes — that it 
 was also agreed that if the defendant's line brought down to Nashua an 
 extra number of passengers, French should see them through, and be 
 at the expense of furnishing extra coaches and horses, if necessary, to 
 convey them to Lowell ; and, on the other hand, if French's line brought 
 up an extra number of passengers from Lowell to Nashua, the proprietors 
 of the defendant's line were to do the same, for the conveyance of such 
 passengers above Nashua — and that it was further agreed (as Tuttle's 
 line ran no farther than from Lowell to Nashua) by the proprietors of 
 the defendant's line, that the\' would not receive into their coaches, at 
 Nashua, passengers for places above Nashua, who came up from 
 Lowell to Nashua on the same day, in Tuttle's line ; the time of start- 
 ing from Lowell and arriving at Nashua being the same in both lines. 
 
 One of the requisitions of mail contracts is, that each line of stage 
 coaches running into another, so as to form a continuous mail line, shall 
 give preference to passengers arriving in the line with which it connects, 
 and shall forward them in preference to any others. 
 
 There were several other lines which started from Lowell at the same 
 time with the lines before mentioned, running to other places, through
 
 128 BENNETT V. DUTTON. 
 
 Nashua ; and it was generally the understanding between their respec- 
 tive proprietors that one line should not take, for a part of the distance 
 where the route was the same, passengers who were going on further 
 in another line ; though this understanding had been occasionally 
 interrupted. 
 
 The plaintiff being at Lowell on the 31st of January, 1837, took pas- 
 sage and was conveyed to Nashua in Turtle's line : and immediately 
 on his arrival at Nashua applied to be received into the defendant's 
 coach, and tendered the amount of the regular fare. There was room 
 for the plaintiff to be conveyed on to Amherst, but the defendant 
 refused to receive him. 
 
 The plaintiff was notified by the agent for the line of French and the 
 defendant, at Lowell, previous to taking passage in Turtle's coach for 
 Nashua, that if he wished to go from Nashua to Amherst on that daj*, 
 in the regular mail line, he must take the mail line at Lowell; and that 
 if he took passage in Turtle's line from Lowell to Nashua he would not 
 be received at Nashua into the defendant's coach. 
 
 The parties agreed that judgment should be rendered for the plaintiff 
 for nominal damages, or for the defendant, according to the opinion of 
 this court upon these facts. 
 
 Clark & G. Y. Sawyer, for the plaintiff, cited Story on Bailment, 
 380; 2 Ld. Rayra. 909, Coggs v. Bernard; Jones on Bailment, 109; 
 2 Barn. & Adolph. 803, Kent v. Shuckard. 
 
 Baker (with whom was C. G. Atherton), for the defendant. It is 
 not denied that anciently a common carrier was liable for refusing to 
 carry goods ; a common innkeeper for refusing to receive a guest ; a 
 common ferryman for refusing to carry a passenger; and generally, 
 perhaps, that there was an implied obligation upon every one standing 
 before the public in a particular profession or employment to undertake 
 the duties incumbent upon it ; though no case is recollected in which it 
 has been determined that the proprietor of a stage coach is liable for 
 refusing to receive a passenger. 2 Black. 451 ; 3 Black. 165; 1 Bac. 
 Ab. 554 ; 1 Vent. 333 ; 2 Show. 327 ; Hard. 163 ; Rob. Ent. 103. 
 
 Formerly it was held that where a man was bound to an}' duty, and 
 chargeable to a certain extent by operation of law, he could not, by an}' 
 act of his own, discharge himself (1 Esp. R. 36; Noy's Maxims, 92; 
 Doc. & Stud. 270), though it is now well settled that this obligation 
 may be limited. 
 
 A liability for refusing to receive a passenger may be qualified b}- 
 notice. Without notice a common carrier stands in the situation of an 
 insurer. This obligation the law imposes upon him the moment he 
 takes upon himself the duties of carrier. His contract with the public 
 is as an insurer; and if goods are committed to his care while stand- 
 ing in this relation, he is liable as such. 6 Johns. 160; 3 Esp. 127; 
 Selw. N. P. 395; 1 Wils. 181 ; 1 Inst. 89; IT. R. 33, 57; 5 T. R. 
 389 ; Story on Bailment, 328 ; 11 Pick. 42 ; 4 N. H. Rep. 306. 
 
 But this contract, which is general with the public, may be made
 
 BENNETT V. DUTTON. 129 
 
 special. One who proposes to carry goods ma}- undertake the business, 
 not of a common, but of a special, carrier. He may give notice, when 
 he commences business, that he does not assume all the responsibilities 
 of a common carrier, technically so called ; that he will be liable to a 
 certain extent, and upon certain conditions, and no farther. He may 
 thus discharge himself from all responsibility, except perhaps in cases 
 of gross negligence. 3 Stark. 337 ; 3 Camp. 27; Story on Bail. 338, 
 357; 3 Taunt. 271 ; 4 Camp. 41 ; Jones on Bail. 104 ; 6 East, 564 ; 4 
 Esp. 178 ; 1 H. Black. 2 ( J8. But the carrier is not liable for refusing 
 to receive what he is under no obligation to carry (16 East, 244), so 
 that the carrier of goods may not only qualify his responsibility for the 
 safe transportation of goods, but his liability for refusing to receive 
 them. 
 
 The principle to be derived from these cases, and upon which they 
 all rest, is, that although the law imposes certain obligations upon one 
 who undertakes the duties of a particular profession or employment, he 
 is at liberty to assume those duties but in part, and thus limit his re- 
 sponsibility, provided he gives notice of his intention, generally, and 
 that notice is brought home to the knowledge of the party interested. 
 The principle is confined to no one branch or department of business ; 
 to no one case or class of cases. Nothing more is required than that 
 public notice should be given how far the carrier intends to limit his 
 responsibility, and that it should be known to the person to be affected 
 by it in season to save his interest. The main point is to show the in- 
 tention of the carrier, and to communicate knowledge of his terms, 
 seasonably, to the individual interested. 5 East, 510; 2 Camp. 108; 
 1 Stark. Cas. 418 ; 2 Ditto, 461 ; 4 Burr. 2298 ; 1 Str. 145 ; 1 Bac. 
 Abr. 556 ; 2 Stark. Ev. 338 ; 1 Pick. 50. And, provided the intention 
 be manifest, it is not material whether any other person may have 
 known the conditions, except the party whose interest they may affect. 
 1 Str. 145 ; 4 Burr. 2298 ; 2 Stark. Cas. 461. 
 
 But, yielding these points, it is contended that the defendant is not 
 liable. It was competent for him to make all such rules and regula- 
 tions as might be necessary for the convenient and successful prosecu- 
 tion of the employment in which he was engaged. To prosecute this 
 employment, to discharge his duties to the public, and particularly to. 
 the post-office department, it became necessary that some such arrange- 
 ment as this should be made. It was as proper that he should prescribe 
 the place where a passenger should bo received as the time when he- 
 should be received. It was not a refusal to receive all passengers, oi*^ 
 this one in particular, but mereby the regulation of the mode in which- 
 the}' would be received. Persons going from Nashua to Francestown. 
 wei'e received at Nashua. Persons going from Lowell to Francestown 
 were received at Lowell. This was all that the defendant did. It wa& 
 a mere regulation ; not a refusal to discharge a duty imposed by law. 
 
 Parker, C. J. It is well settled that so long as a common carrier 
 has convenient room he is bound to receive and carry all goods which 
 
 9
 
 130 BENNETT V. BUTTON. 
 
 are offered for transportation, of the sort be is accustomed to carry, if 
 they are brought at a reasonable time, and in a suitable condition. 
 Story on Bailment, 328 ; 5 Bing. B. 217, Riley v. Home. 
 
 And stage coaches, which transport goods as well as passengers, are, 
 in respect of such goods, to be deemed common carriers, and respon- 
 sible accordingby. Story, 325. 
 
 Carriers of passengers, for hire, are not responsible, in all particulars, 
 like common carriers of goods. They are not insurers of personal 
 safety against all contingencies except those arising from the acts of 
 God and the public enemy. For an injury happening to the person of 
 a passenger by mere accident, without fault on their part, the}' are not 
 responsible ; but are liable only for want of due care, diligence, or skill 
 This results from the different nature of the case. But in relation to 
 the baggage of their passengers, the better opinion seems to be that 
 they are responsible like other common carriers of goods. 
 
 And we are of opinion that the proprietors of a stage coach, for the 
 regular transportation of passengers, for hire, from place to place, are, 
 as in the case of common carriers of goods, bound to take all passengers 
 who come, so long as they have convenient accommodation for their 
 safe carriage, unless there is a sufficient excuse for a refusal. 2 Sumner, 
 221 ; Jencks v. Coleman ; 19 Wend. R. 239. 
 
 The principle which requires common carriers of goods to take all that 
 are offered, under the limitations before suggested, seems well to apply. 
 
 Like innkeepers, carriers of passengers are not bound to receive all 
 comers. 8 N. H. Rep. 523, Maikham v. Brown. The character of the 
 applicant, or his condition at the time, ma} - furnish just grounds for his 
 exclusion. And his object at the time may furnish a sufficient excuse 
 for a refusal ; as, if it be to commit an assault upon another passenger, 
 or to injure the business of the proprietors. 
 
 The case shows the defendant to have been a general carrier of pas- 
 sengers, for hire, in his stage coach, from Nashua to Amherst, at the 
 time of the plaintiff's application. It is admitted there was room in 
 the coach, and there is no evidence that he was an improper person to 
 be admitted, or that he came within any of the reasons of exclusion 
 before suggested. 
 
 It has been contended that the defendant was only a special carrier 
 of passengers, and did not hold himself out as a carrier of persons gen- 
 erally ; but the facts do not seem to show a holding out for special em- 
 ployment. He was one of the proprietors, and the driver, of a line of 
 stages, from Nashua to Amherst and Francestown. The} - held them- 
 selves out as general passenger carriers between those places. But by 
 reason of their connection with French's line of stages from Lowell to 
 Nashua, they attempted to make an exception of persons who came 
 from Lowell to Nashua in Tuttle's stage, on the same day in which they 
 applied for a passage for the north. It is an attempt to limit their re- 
 sponsibility in a particular case or class of cases, on account of their 
 agreement with French.
 
 BENNETT V. BUTTON. 131 
 
 It is further contended, that the defendant and other proprietors hod 
 a right to make rules for the regulation of their business, and among 
 them a rule that passengers from Lowell to Amherst and onward 
 should take French's stage at Lowell, and that by a notice brought 
 home to the individual the general responsibility of the defendant, if it 
 existed, is limited. 
 
 But we are of opinion that the proprietors had no right to limit their 
 general responsibility in this manner. 
 
 It has been decided in New York that stage coach proprietors are 
 answerable, as common carriers, for the baggage of passengers, that 
 they cannot restrict their common law liability by a general notice that 
 the baggage of passengers is at the risk of the owners, and that if a 
 carrier can restrict his common law liability, it can only be by an ex- 
 press contract. 19 Wend. 234, Hollister v. Nowlen. And this prin- 
 ciple was applied, and the proprietors held liable for the loss of a trunk, 
 in a case where the passenger stopped at a place where the stages were 
 not changed, and he permitted the stage to proceed, without any in- 
 quiry for his baggage. 19 Wend. 251, Cole v. Goodwin. However 
 this ma} T be, as there was room in the defendant's coach, he could not 
 have objected to take a passenger from Nashua, who applied there, 
 merely because he belonged to some other town. That would furnish 
 no sufficient reason, and no rule or notice to that effect could limit his 
 duty. And there is as little legal reason to justify a refusal to take a 
 passenger from Nashua, merely because he came to that place in a par- 
 ticular conveyance. The defendant might well have desired that pas- 
 sengers at Lowell should take French's line, because it connected with 
 his. But if he had himself been the proprietor of the stages from 
 Lowell to Nashua he could have had no right to refuse to take a pas- 
 senger from Nashua, merely because he did not see fit to come to that 
 place in his stage. It was not for him to inquire whether the plaintiff 
 came to Nashua from one town or another, or b}' one conveyance or 
 another. That the plaintiff proposed to travel onward from that place 
 could not injuriously affect the defendant's business ; nor was the plaintiff 
 to be punished because he had come to Nashua in a particular manner. 
 
 The defendant had good right, by an agreement with French, to give 
 a preference to the passengers who came in French's stage ; and as 
 they were carriers of the mail on the same route, it seems he was bound 
 so to do, without an agreement. If, after they were accommodated, 
 there was still room, he was bound to carry the plaintiff, without in- 
 quiring in what line he came to Nashua. 
 
 Judgment for the plaintiff.
 
 132 PEAKSON V. DUANE. 
 
 PEARSON v. DUANE. 
 
 Supreme Court of the United States, 1867. 
 
 [4 Wall. 605.] 
 
 In the mouth of June, 1856, the steamship Stevens, a common carrier 
 of passengers, of which Pearson was master, on her regular voyage 
 from Panama to San Francisco, arrived at the intermediate port of 
 Acapulco, where Duane got on board, with the intention of proceeding 
 to San Francisco. He had, shortly before this, been banished from that 
 city by a revolutionary yet powerful and organized body of men, called 
 "The Vigilance Committee of San Francisco," upon penalty of death 
 in case of return. Pearson ascertained that Duane had been expelled 
 from California, and put Duane aboard the steamer Sonora. Duane 
 filed a libel in admiralty for damages. 1 
 
 Mr. Justice Davis delivered the opinion of the court. 
 
 This case is interesting because of certain novel views which this 
 court is asked to sustain. 
 
 Two questions arise in it: 1st, was the conduct of Pearson justifi- 
 able? 2d, if not, what should be the proper measure of damages? It 
 is contended, as the life of Duane was in imminent peril, in case of his 
 return to San Francisco, that Pearson was justified, in order to save it, 
 in excluding him from his boat, notwithstanding Duane was willing to 
 take his chances of being hanged by the Vigilance Committee. 
 
 Such a motive is certainly commendable for its humanity, and goes 
 very far to excuse the transaction, but does not justify it. Common 
 carriers of passengers, like the steamship Stevens, are obliged to carry 
 all persons who apply for passage, if the accommodations are sufficient, 
 unless there is a proper excuse for refusal. 2 
 
 If there are reasonable objections to a proposed passenger, the 
 carrier is not required to take him. In this case, Duane could have 
 been well refused a passage when he first came on board the boat, 
 if the circumstances of his banishment would, in the opinion of the 
 master, have tended to promote further difficulty, should he be returned 
 to a city where lawless violence was supreme. 
 
 But this refusal should have preceded the sailing of the ship. After 
 the ship had got to sea, it was too late to take exceptions to the char- 
 acter of a passenger, or to his peculiar position, provided he violated 
 no inflexible rule of the boat in getting on board. This was not done, 
 and the defence that Duane was a "stowaway," and therefore subject 
 to expulsion at any time, is a mere pretence, for the evidence is clear 
 that he made no attempt to secrete himself until advised of his intended 
 transfer to the Sonora. Although a railroad or steamboat company 
 can properly refuse to transport a drunken or insane man, or one whose 
 
 1 The statement of facts has been condensed. — Ed. 
 
 2 Jencks v. Coleman, 2 Sumner, 221 ; Bennett v. Dutton, 10 New Hampshire, 486.
 
 CHICAGO & NORTHWESTERN RAILWAY V. WILLIAMS. 133 
 
 character is bad, the}- cannot expel him, after having admitted him as 
 a passenger, and received his fare, unless he misbehaves during the 
 journey. 1 Duane conducted himself properly on the boat until his ex- 
 pulsion was determined, and when his fare was tendered to the purser, 
 he was entitled to the same rights as other passengers. The refusal to 
 carry him was contrary to law, although the reason for it was a humane 
 one. The apprehended danger mitigates the act, but affords no legal 
 justification for it. 
 
 But the sum of four thousand dollars awarded as damages in this 
 case is excessive, bearing no proportion to the injury received.' 2 . . . 
 We are of opinion that the damages should be reduced to $50. 
 
 It is ordered that this cause be remitted to the Circuit Court for the 
 District of California, with directions to enter a decree in favor of the 
 appellee for fifty dollars. It is further ordered that each part} - pay his 
 own costs in this court. Order accordingly. 
 
 CHICAGO & NORTHWESTERN RAILWAY v. WILLIAMS. 
 Supreme Court of Illinois, 1870. 
 
 [55 III. 185.] 
 
 Mr. Justice Scott delivered the opinion of the court. 
 
 There is but one question of any considerable importance presented 
 by the record in this case. 
 
 It is simply whether a railroad compan}', which, by our statute and 
 the common law, is a common carrier of passengers, in a case where 
 the company, by their rules and regulations, have designated a certain 
 car in their passenger train for the exclusive use of ladies, and gentle- 
 men accompanied by ladies, can exclude from the privileges of such car 
 a colored woman holding a first-class ticket, for no other reason except 
 her color. 
 
 The evidence in the case establishes these facts — that, as w : as the 
 custom on appellants' road, they had set apart in their passenger trains 
 a car for the exclusive use of ladies, and gentlemen accompanied by 
 ladies, and that such a car, called the " ladies' car," was attached to 
 the train in question. The appellee resided at Rockford, and being de- 
 sirous of going from that station to Belvidere, on the road of appellants, 
 for that purpose purchased of the agent of the appellants a ticket, 
 which entitled the holder to a seat in a first-class car on their road. 
 On the arrival of the train at the Rockford station the appellee offered 
 and endeavored to enter the ladies' car, but was refused permission so 
 to do, and was directed to go forward to the car set apart for and occu- 
 pied mostly by men. On the appellee persisting on entering the ladies' 
 
 1 Coppin v. Braithwaite, 8 Jurist, 875 ; Prendergast v. Compton, 8 Carrington and 
 Payne, 462. 
 
 2 The discussion of this point is omitted. — Ed.
 
 134 CHICAGO & NORTHWESTERN RAILWAY V. WILLIAMS. 
 
 car, force enough was used by the brakeman to prevent her. At the 
 time she attempted to obtain a seat in that car on appellants' train 
 there were vacant and unoccupied seats in it, for one of the female 
 witnesses states that she, with two other ladies, a few moments after- 
 wards, entered the same car at that station and found two vacant seats, 
 and occupied the same. No objection whatever was made, nor is it in- 
 sisted any other existed, to appellee taking a seat in the ladies' car 
 except her color. The appellee was clad in plain and decent apparel, 
 and it is not suggested, in the evidence or otherwise, that she was not 
 a woman of good character and proper behavior. 
 
 It does not appear that the company had ever set apart a car for the 
 exclusive use, or provided any separate seats for the use of colored 
 persons who might desire to pass over their line of road. The evidence 
 discloses that colored women sometimes rode in the ladies' car, and 
 sometimes in the other car, and there was, in fact, no rule or regula- 
 tion of the company in regard to colored passengers. 
 
 The case turns somewhat on what are reasonable rules, and the power 
 of railroad companies to establish and enforce them. 
 
 It is the undoubted right of railroad companies to make all reason- 
 able rules and regulations for the safety and comfort of passengers 
 travelling on their lines of road. It is not only their right, but it is their 
 duty to make such rules and regulations. It is alike the interest of 
 the companies and the public that such rules should be established and 
 enforced, and ample authority is conferred by law on the agents and 
 servants of the companies to enforce all reasonable regulations made for 
 the safety and convenience of passengers. 
 
 It was held, in the case of the 111. Cent. R. R. Co. v. Whittemore, 
 43 111. 423, that for a non-compliance with a reasonable rule of the com- 
 pany, a part} - might be expelled from a train at a point other than a 
 regular station. 
 
 If a person on a train becomes disorderly, profane, or dangerous and 
 offensive in his conduct, it is the duty of the conductor to expel such 
 guilty party, or at least to assign him to a car where he will not en- 
 danger or annoy the other passengers. Whatever rules tend to the 
 comfort, order, and safety of the passengers, the company are fully 
 authorized to make, and are amply empowered to enforce compliance 
 therewith. 
 
 But such rules and regulations must always be reasonable and uni- 
 form in respect to persons. 
 
 A railroad company cannot capriciously discriminate between pas- 
 sengers on account of their nativity, color, race, social position, or their 
 political or religious beliefs. Whatever discriminations are made must 
 be on some principle, or for some reason, that the law recognizes as 
 just and equitable, and founded in good public policy. What are 
 reasonable rules is a question of law, and is for the court to determine, 
 under all the circumstances in each particular case. 
 
 In the present instance the rule that set apart a car for the exclusive
 
 CHICAGO & NORTHWESTERN RAILWAY V. WILLIAMS. 135 
 
 use of ladies, and gentlemen accompanied by ladies, is a reasonable 
 one, and the power of the company to establish it has never been 
 doubted. 
 
 If the appellee is to be denied the privilege of the " ladies' car," for 
 which she was willing to pay, and had paid, full compensation to the 
 company, a privilege which is accorded alike to all women, whether 
 they are rich or poor, it must be on some principle or under some rule 
 of the com pan}' that the law would recognize as reasonable and just. 
 If she was denied that privilege by the mere caprice of the brakenuan 
 and conductor, and under no reasonable rule of the company, or what 
 is still worse, as the evidence would indicate, through mere wantonness 
 on the part of the brakeman, then it was unreasonable, and therefore 
 unlawful. It is not pretended that there was any rule that excluded 
 her, or that the managing officers of the company had ever given any 
 directions to exclude colored persons from that car. If, however, there 
 was such a rule, it could not be justified on the ground of mere preju- 
 dice. Such a rule must have for its foundation a better and a sounder 
 reason, and one more in consonance with the enlightened judgment of 
 reasonable men. An unreasonable rule, that affects the convenience 
 and comfort of passengers, is unlawful, simply because it is unreason- 
 able. The State v. Overton, 4 Zab. 435. 
 
 In the case of the West Chester & Philadelphia R. R. Co. v. Miles, 
 55 Penn. 209, it was admitted that no one could be excluded from a 
 carriage hy a public carrier on account of color, religious belief, politi- 
 cal relations, or prejudice, but it was held not to be an unreasonable 
 regulation to seat passengers so as to preserve order and decorum and 
 prevent contacts and collisions arising from well-known repugnances, 
 and therefore a rule that required a colored woman to occupy a separate 
 seat in a car furnished by the compairy, equally as comfortable and safe 
 as that furnished for other passengers, was not an unreasonable rule. 
 
 Under some circumstances this might not be an unreasonable rule. 
 
 At all events, public carriers, until they do furnish separate seats 
 equal in comfort and safety to those furnished for other travellers, must 
 be held to have no right to discriminate between passengers on account 
 of color, race, or nativity alone. 
 
 We do not understand that the appellee was bound to go forward to 
 the car set apart for and occupied mostly by men, when she was directed 
 by the brakeman. It is a sufficient answer to say that that car was not 
 provided by an}' rule of the company for the use of women, and that 
 another one was. This fact was known to the appellee at the time. 
 She ma}' have undertaken the journey alone, in view of that very fact, 
 as women often do. 
 
 The above views dispose of all the objections taken to the instructions 
 given by the court on behalf of the appellee, and the refusal of the 
 court to give those asked on the part of the appellants, except the one 
 which tells the jury that they may give damages above the actual dam- 
 ages sustained, for the delay, vexation, and indignity to which the ap-
 
 136 THE D. K. MARTIN. 
 
 pellee was exposed if she was wrongfully excluded from the car. If the 
 party in such case is confined to the actual pecuniary damages sustained, 
 it would, most often, be no compensation at all, above nominal dam- 
 ages, and no salutary effect would be produced on the wrong doer by 
 such a verdict. But we apprehend that if the act is wrongfully and 
 wantonly committed, the party may recover, in addition to the actual 
 damages, something for the indignity, vexation, and disgrace to which 
 the party has been subjected. 
 
 It is insisted that the damages are excessive, in view of the slight 
 injury sustained. 
 
 There is evidence from which the jury could find that the brakeman 
 treated the appellee very rudely, and placed his hand on her and pushed 
 her away from the car. The act was committed in a public place, and 
 whatever disgrace was inflicted on her was in the presence of strangers 
 and friends. The act was, in itself, wrongful, and without tbe shadow 
 of a reasonable excuse, and the damages are not too high. The jury 
 saw the witnesses, and heard their testimony, and with their finding 
 we are fully satisfied. 
 
 Perceiving no error in the record, the judgment is affirmed. 
 
 Judgment affirmed. 
 
 THE D. R. MARTIN. 
 
 Circuit Court of the United States, So. New York, 1873. 
 
 [11 Blotch. 233.] 
 
 Hunt, J. On the trial before the District Judge, the libellant, David 
 F. Barney, recovered the sum of $1,000, as his damages for ejecting 
 him from the steamboat D. R. Martin, on the morning of October 23, 
 1871. On an application subsequently made to him. the District Judge 
 reduced the recovery to the sum of $500. A careful perusal of all the 
 testimony satisfies me that the libellant was pursuing his business as 
 an express agent on board of the boat, that he persisted in it against the 
 remonstrance of the claimant, and that it was to prevent the transac- 
 tion of that business by him on board of the boat, that he was ejected 
 therefrom by the claimant. The steamboat company owning this vessel 
 were common carriers between Huntington and New York. They were 
 bound to transport every passenger presenting himself for transporta- 
 tion, who was in a fit condition to travel by such conveyance. They 
 were bound, also, to carry all freight presented to them in a reasonable 
 time before their hours of starting. The capacity of their accommoda- 
 tion was the only limit to their obligation. A public conveyance of 
 this character is not, however, intended as a place for the transaction 
 of the business of the passengers. The suitable carriage of persons or 
 propertv is the only duty of the common carrier. A steamboat com- 
 pany, or a railroad company, is not bound to furnish travelling con- 
 veniences for those who wish to engage, on their vehicles, in the business
 
 THE D. E. MARTIN. 137 
 
 of selling hooks, papers, or articles of food, or in the business of receiv- 
 ing and distributing parcels or baggage, nor to permit the transaction 
 of this business in their vehicles, when it interferes with their own 
 interests. If a profit may arise from such business, the benefit of it 
 belongs to the company, and the}' are entitled to the exclusive; use of 
 their vehicles for such purposes. This seems to be clear both upon' 
 principle and authority. (Story on Bailments, § 591a / Jencks v. Cole- 
 man, 2 Sumner, 221 ; Burgess v. Clements, 4 Maule & Sel., 306 ; Fell 
 v. Knight, 8 Mee. & W., 26'J ; Commonwealth v. Power, 1 Am. Railway 
 Cases, 389.) These cases show that the principle thus laid down is 
 true as a general rule. The case of The N. J. Steam Nav. Co. v. 
 Merchants' Bank (6 How. 344) shows that it is especially applicable 
 to those seeking to do an express business on such conveyances. It is 
 there held, in substance, that the carrier is liable to the owner for all 
 the goods shipped on a public conveyance b}' an express company, 
 without regard to any contract to the contrary between the carrier and 
 the express company. Although the carrier may have no custody or 
 control of the goods, he is liable to the owner in case of loss, if he 
 allows them to be brought on board. It is the simplest justice that he 
 should be permitted to protect himself by preventing their being brought 
 on board by those having them in charge. This rule would not exclude 
 the transmission, as freight, of an}- goods or property which the owners 
 or agents should choose to place under the care and control of the 
 carrier. 
 
 That persons other than the libellants carried a carpet bag without 
 charge, or that such bag occasionally contained articles forwarded by 
 a neighbor or procured for a friend, does not affect the carrier's right. 
 The cases where this was proved to have been done were rare and 
 exceptional, and do not appear to have been known to the carrier, nor 
 does it appear that any compensation was paid to the agent. The} 7 
 were neighborly and friendly services, such as people in the country 
 are accustomed to render for each other. But, if the service and the 
 business had been precisely like that of the libellant the rule would 
 have been the same. The rights of the carrier in respect to A. are not 
 gone or impaired, for the reason that he waives his rights in respect 
 to B., especially if A. be notified that the rights are insisted upon as to 
 him. If Mr. Prime was permitted to carry a bag without charge on 
 the claimant's boat, or to do a limited express business thereon, this 
 gave the libellant no right to do such business, when notified by the 
 carrier that he must refrain from it. A carrier, like all others, may 
 bestow favor where he chooses. Rights, not favors, are the subject of 
 demand by all parties indiscriminately. The incidental benefit arising 
 from the transaction of such business as ma} r be done on board of a 
 boat or on a car, belongs to the carrier, and he can allow the privilege 
 to one and exclude from it another, at his pleasure. A steamboat 
 company or a railroad companj', may well allow an individual to open 
 a restaurant or a bar on their conveyance, or to do the business of boot
 
 138 BROWN V. MEMPHIS & C. RAILROAD. 
 
 blacking, or of peddling books and papers. This individual is under 
 their control, subject to their regulation, and the business interferes in 
 no respect with the orderly management of the vehicle. But if even' 
 one that thinks fit can enter upon the performance of these duties, the 
 control of the vehicle and its good management would soon be at an 
 end. The cars or boats are those of the carrier, and, I think, exclu 
 sively his, for this purpose. The sale or leasing of these rights to indi- 
 viduals, and the exclusion of others therefrom, come under the head of 
 reasonable regulations, which the courts are bound to enforce. The 
 right of transportation, which belongs to all who desire it, does not 
 cany with it a right of traffic or of business. 
 
 It is insisted that the libellant could not legally be ejected from the 
 boat for an)- offence, or violation of rules, committed on a former occa- 
 sion. It is insisted, also, that, having purchased a ticket from the 
 agent of the company, his right to a passage was perfect. Neither of 
 these propositions is correct. In Commonwealth v. Power, (7 Met. 596,) 
 the passenger had actually purchased his ticket, and the Chief Justice 
 says : "If he, Hall, gave no notice of his intention to enter the car as 
 a passenger, and of his right to do so, and if Power believed that his 
 intention was to violate a reasonable subsisting regulation, then he and 
 his assistants were justified in forcibly removing him from the depot." 
 In Pearson v. Duane, (4 Wallace, 605.) Mr. Justice Davis, in giving the 
 opinion of the court, held the expulsion of Duane to have been illegal, 
 because it was delayed until the vessel had sailed. " But this refusal," 
 he says, "should have preceded the sailing of the ship. After the ship 
 had got to sea, it was too late to take exceptions to the character of a 
 passenger, or to his peculiar position, provided he violated no inflexible 
 rule of the boat in getting on board." The libellant, in this case, re- 
 fused to sive any intimation that he would abandon his trade on board 
 the vessel. The steamboat company, it is evident, were quite willing 
 to carry him and his baggage, and objected only to his persistent at- 
 tempts to continue his traffic on their boat. He insisted that he had 
 the right to pursue it, and the compam- resorted to the only means in 
 their power to compel its abandonment, to wit, his removal from the 
 boat. This was done with no unnecessary force, and was accompanied 
 by no indignity. In nry opinion, the removal was justified, and the 
 decree must be reversed. 1 
 
 BROWN v. MEMPHIS & C. RAILROAD. 
 Circuit Court of the United States, W. Tenn., 1880. 
 
 [5 Fed. 499.] 
 
 This was a commondaw action for the wrongful exclusion of the 
 plaintiff, a colored woman, from the ladies' car of the defendant's train, 
 upon her refusal to take a seat in the smoking-car. At the time of her 
 
 1 Ace. Barney v. Oyster Bay & H. S. B. Co., 67 N. Y. 301. — Ed.
 
 BROWN V. MEMPHIS & C. RAILROAD. 139 
 
 exclusion the plaintiff held a first-class ticket over the defendant's road 
 from Corinth, Mississippi, to Memphis, Tennessee, and her behavior 
 while in the car was lady-like and inoffensive. 1 
 
 The defendant pleaded that the plaintiff was a notorious and public 
 courtesan, addicted to the use of profane language and offensive habits 
 of conduct in public places ; that the ladies' car was set apart exclu- 
 sively for the use of genteel ladies of good character and modest de- 
 portment, from which the plaintiff was rightfully excluded because of 
 her bad character. 
 
 Hammond, District Judge, charged the jury that the same principles 
 of law were to be applied to women as men in determining whether the 
 exclusion was lawful or not ; that the social penalties of exclusion of 
 unchaste women from hotels, theatres, and other public places could 
 not be imported into the law of common carriers ; that they had a right 
 to travel in the streets and on the public highways, and other people 
 who travel must expect to meet them in such places ; and, as long as 
 their conduct was unobjectionable while in such places, they could not 
 be excluded. The carrier is bound to carry good, bad, and indifferent, 
 and has nothing to do with the morals of his passengers, if their be- 
 havior be proper while travelling. Neither can the carrier use the 
 character for chastity of his female passengers as a basis of classifica- 
 tion, so that he may put all chaste women, or women who have the 
 reputation of being chaste, into one car, and those known or reputed 
 to be unchaste in another car. Such a regulation would be contrary to 
 public policy, and unreasonable. It would put every woman purchasing 
 a railroad ticket on trial for her virtue before the conductor as her judge, 
 and, in case of mistake, would lead to breaches of the peace. It would 
 practically exclude all sensible and sensitive women from travelling at 
 all, no matter how virtuous, for fear they might be put into or uncon- 
 sciously occupy the wrong car. 2 
 
 The police power of the carrier is sufficient protection to other pas- 
 sengers, and he can remove all persons, men or women, whose conduct 
 at the time is annoying, or whose reputation for misbehavior and in- 
 decent demeanor in public is so notoriously bad that it furnishes a rea- 
 sonable ground to believe that the person will be offensive or annoying 
 to others travelling in the same car ; and this is as far as the carrier 
 has any right to go. He can no more classify women according to 
 their reputation for chastity, or want of it, than he can so grade the 
 men. Verdict for the plaintiff . 
 
 1 Part of the statement of facts and part of the charge are omitted. — Ed. 
 
 2 See Brown v. R. R., 4 Fed. 37. — Ed.
 
 140 McDUFFEE V. PORTLAND & ROCHESTER RAILROAD. 
 
 McDUFFEE v. PORTLAND AND ROCHESTER RAILROAD. 
 
 Supreme Judicial Court of New Hampshire, 1873. 
 
 [52 N. II. 430.] 
 
 Case, by Daniel McDuffee against the Portland & Rochester Rail- 
 road, for not furnishing the plaintiff terms, facilities, and accommoda- 
 tions for his express business on the defendants' road, between Rochester, 
 N. H. , and Portland, Me., reasonably equal to those furnished by the 
 defendants to the Eastern Express Company. 
 
 The defendants demurred to the declaration. 1 
 
 Doe, J. I. A common carrier is a public carrier. He engages in a 
 public employment, takes upon himself a public duty, and exercises a 
 sort of public office. Sandford v. R. Co., 24 Pa. St. 378, 381 ; N. J. 
 S. N. Co. v. Merchants' Bank, 6 How. 344, 382 ; Shelden v. Robinson, 
 7 N. H. 157, 1G3, 164; Gray v. Jackson, 51 N. H. 9, 10; Ansell v. 
 Waterhouse, 2 Chitty, 1, 4; Hollister v. Nowlen, 19 Wend. 234, 239. 
 He is under a legal obligation : others have a corresponding legal right. 
 His duty being public, the correlative right is public. The public right 
 is a common right, and a common right signifies a reasonably equal 
 right. " There are certain cases in which, if individuals dedicate their 
 personal services, or the temporaiy use of their property, to the public, 
 the law will impose certain duties upon them, and regulate their pro- 
 ceedings to a certain extent. Thus, a common carrier is bound bv 
 law, if he have conveniences for the purpose, to carry for a reasonable 
 compensation." Olcott v. Banfill, 4 N. H. 537, 546. " He [the com- 
 mon carrier] holds a sort of official relation to the public. He is 
 bound to cany at reasonable rates such commodities as are in his line 
 of business, for all persons who offer them, as earhy as his means will 
 allow. He cannot refuse to cany a proper article, tendered to him at 
 a suitable time and place, on the offer of the usual reasonable compen- 
 sation. Story on Bailments, sec. 508; Riley v. Home, 5 Bing. 217, 
 224 ; Bennett v. Dutton, 10 N. H. 486. When he undertakes the busi- 
 ness of a common carrier, he assumes this relation to the public, and 
 he is not at liberty to decline the duties and responsibilities of his 
 place, as they are defined and fixed by law." Moses v. B. & M. R. R., 
 24 N. H. 71, 88, 89. On this ground it Avas held, in that case, that 
 a common carrier could not, by a public notice, discharge himself from 
 the legal responsibilit}' pertaining to his office, or from performing his 
 public duty in the way and on the terms prescribed by law. 
 
 " The very definition of a common carrier excludes the idea of the 
 right to grant monopolies, or to give special and unequal preferences. 
 It implies indifference as to whom the}' may serve, and an equal readi- 
 ness to serve all who may apply, and in the order of their application." 
 N. E. Express Co. v. M. C. R. R. Co., 57 Me. 188, 196. A common 
 
 1 Arguments of counsel are omitted. — Ed.
 
 McDUFFEE V. PORTLAND & ROCHESTER RAILROAD. 141 
 
 carrier of passengers cannot exercise an unreasonable discrimination in 
 carrying one and refusing to carry another. Bennett v. Dutton, 10 N. II. 
 481. A common carrier of freight cannot exercise an unreasonable 
 discrimination in carrying for one and refusing to carry for another. 
 He ma}- be a common carrier of one kind of property, and not of an- 
 other ; but, as to goods of which he is a common carrier, he cannot 
 discriminate unreasonably against any individual in the performance of 
 the public duty which he assumed when he engaged in the occupation 
 of carrying for all. His service would not be public if, out of the per- 
 sons and things in his line of business, he could arbitrarily select whom 
 and what he would cany. Such a power of arbitrary selection would 
 destroy the public character of his employment, and the rights which 
 the public acquired when he volunteered in the public service of common- 
 carrier transportation. With such a power, he would be a carrier, — 
 a special, private carrier, — but not a common, public one. From the 
 public service — which he entered of his own accord — he may retire, 
 ceasing to be a common carrier, with or without the public consent, 
 according to the law applicable to his case ; but, as long as he remains 
 in the service, he must perform the duties appertaining to it. The 
 remedies for neglect or violation of duty in the civil service of the 
 State are not the same as in the military service ; but the public rights 
 of having the duties of each performed are much the same, and, in 
 the department now under consideration, ample remedies are not want- 
 ing. The right to the transportation service of a common carrier is a 
 common as well as a public right, belonging to every individual as well 
 as to the State. A right of conveyance, unreasonably and injuriously 
 preferred and exclusive, and made so by a special contract of the com- 
 mon carrier, is not the common, public right, but a violation of it. 
 And when an individual is specially injured by such a violation of the 
 common right which he is entitled to enjoy, he may have redress in an 
 action at common law. The common carrier has no cause to complain 
 of his legal responsibility. It was for him to consider as well the duty 
 as the profit of being a public seryant, before embarking in that busi- 
 ness. The profit could not be considered without taking the duty into 
 account, for the rightful profit is the balance of compensation left after 
 paying the expenses of performing the duty. And he knew before- 
 hand, or ought to have known, that if no profit should accrue, the per- 
 formance of the duty would be none the less obligatory until he should 
 be discharged from the public service. Taylor v. Railway, 48 N. H. 
 304, 317. The chances of profit and loss are his risks, being necessary 
 incidents of his adventure, and for him to judge of before devoting his 
 time, labor, care, skill, and capital to the service of the country. 
 Profitable or unprofitable, his condition is that of one held to service, 
 having by his own act, of his own free will, submitted himself to that 
 condition, and not having liberated himself, nor been released, from it. 
 
 A common carrier cannot directly exercise unreasonable discrimina- 
 tion as to whom and what he will carry. On what legal ground can
 
 142 McDUFFEE V. PORTLAND & ROCHESTER RAILROAD. 
 
 he exercise such discrimination indirectly ? He cannot, without good 
 reason, while carrying A, unconditionally refuse to cany B. On what 
 legal ground can he, without good reason, while providing ngreeable 
 terms, facilities, and accommodations for the conveyance of A and his 
 goods, provide such disagreeable ones for B that he is practically com- 
 pelled to sta}- at home with his goods, deprived of his share of the 
 common right of transportation? What legal principle, guaranteeing 
 the common right against direct attack, sanctions its destruction by a 
 circuitous invasion? As no one can infringe the common right of 
 travel and commercial intercourse over a public highway, on land or 
 water, by making the way absolutely impassable, or rendering its pas- 
 sage unreasonably unpleasant, unhealthy, or unprofitable, so a com- 
 mon carrier cannot infringe the common right of common carriage, 
 either by unreasonably refusing to carry one or all, for one or for all, 
 or by imposing unreasonably unequal terms, facilities, or accommoda- 
 tions, which would practically amount to an embargo upon the travel 
 or traffic of some disfavored individual. And, as all common carriers 
 combined cannot, directly or indirectly, destroy or interrupt the com- 
 mon right by stopping their branch of the public service while the}' 
 remain in that service, so neither all of them together nor one alone 
 can, directly or indirectly, deprive any individual of his lawful enjoy- 
 ment of the common right. Equality, in the sense of freedom from 
 unreasonable discrimination, being of the very substance of the com- 
 mon right, an individual is deprived of his lawful enjoyment of the 
 common right when he is subjected to unreasonable and injurious dis- 
 crimination in respect to terms, facilities, or accommodations. That is 
 not, in the ordinary legal sense, a public highway, in which one man is 
 unreasonably privileged to use a convenient path, and another is un- 
 reasonably restricted to the gutter ; and that is not a public service of 
 common carriage, in which one enjoj's an unreasonable preference or 
 advantage, and another suffers an unreasonable prejudice or disadvan- 
 tage. A denial of the entire right of service bj- a refusal to cany, 
 differs, if at all, in degree only, and the amount of damage done, and 
 not in the essential legal character of the act, from a denial of the 
 right in part by an unreasonable discrimination in terms, facilities, or 
 accommodations. Whether the denial is general by refusing to furnish 
 any transportation whatever, or special by refusing to carry one person 
 or his goods ; whether it is direct by expressly refusing to carry, or 
 indirect by imposing such unreasonable terms, facilities, or accommo- 
 dations as render carriage undesirable ; whether unreasonableness of 
 terms, facilities, or accommodations operates as a total or a partial 
 denial of the right ; and whether the unreasonableness is in the intrin- 
 sic, individual nature of the terms, facilities, or accommodations, or in 
 their discriminating, collective, and comparative character, — the right 
 denied is one and the same common right, which would not be a right 
 if it could be rightfully denied, and would not be common, in the legal 
 sense, if it could be legally subjected to unreasonable discrimination,
 
 McDUFFEE V. TORTLAND & ROCHESTER RAILROAD. 143 
 
 and parcelled out among men in unreasonably superior and inferior 
 grades at the behest of the servant from whom the service is due. 
 
 The commonness of the right necessarily implies an equality of right, 
 in the sense of freedom from unreasonable discrimination ; and any 
 practical invasion of the common right by an unreasonable discrimina- 
 tion practised by a carrier held to the common service is insubordi- 
 nation and mutiny, for which he is liable, to the extent of the damage 
 inflicted, in an action of case at common law. The question of reason- 
 ableness of price may be something more than the question of actual 
 cost and value of service. If the actual value of certain transportation 
 of one hundred barrels of flour, affording a reasonable profit to the 
 carrier, is one hundred dollars ; if, all the circumstances that ought to 
 be considered being taken into account, that sum is the price which 
 ought to be charged for that particular service ; and if the carrier 
 charges everybody that price for that service, there is no encroachment 
 on the common right. But if for that service the carrier charges one 
 flour merchant one hundred dollars, and another fifty dollars, the com- 
 mon right is as manifestly violated as if the latter were charged one 
 hundred dollars, and the former two hundred. What kind of a com- 
 mon rio-ht of carriage would that be which the carrier could so admin- 
 ister as to unreasonably, capriciously, and despotically enrich one man 
 and ruin another? If the service or price is unreasonable and injuri- 
 ous, the unreasonableness is equally actionable, whether it is in in- 
 equality or in some other particular. A service or price that would 
 otherwise be reasonable may be made unreasonable by an unreason- 
 able discrimination, because such a discrimination is a violation of the 
 common right. There might be cases where persons complaining of 
 such a violation would have no cause of action, because they would 
 not be injured. There might be cases where the discrimination would 
 be injurious; in such cases it would be actionable. There might be 
 cases where the remedy by civil suit for damages at common law 
 would be practically ineffectual on account of the difficult}' of proving 
 large damages, or the incompetence of a multiplicity of such suits to 
 abate a continued grievance, or for other reasons ; in such cases there 
 would be a plain and adequate remedy, where there ought to be one, 
 by the re-enforcing operation of an injunction, or by indictment, infor- 
 mation, or other common, familiar, and appropriate course of law. 
 
 The common and equal right is to reasonable transportation service 
 for a reasonable compensation. Neither the service nor the price is 
 necessarily unreasonable because it is unequal, in a certain narrow, 
 strict, and literal sense ; but that is not a reasonable service, or a 
 reasonable price, which is unreasonably unequal. The question is not 
 merely whether the service or price is absolutely unequal, in the nar- 
 rowest sense, but also whether the inequality is unreasonable and 
 injurious. There may be acts of charity ; there may be different prices 
 for different kinds or amounts of service ; there may be many differ- 
 ences of price and service, entirely consistent with the general prin-
 
 144 McDUFFEE V. POETLAND & EOCHESTEE EAILEOAD. 
 
 ciple of reasonable equality which distinguishes the duty of a common 
 carrier in the legal sense from the duty of a carrier who is not a com- 
 mon one in that sense. A certain inequality of terms, facilities, or 
 accommodations may be reasonable, and required by the doctrine of 
 reasonableness, and therefore not an infringement of the common 
 right. It ma}' be the duty of a common carrier of passengers to carry 
 under discriminating restrictions, or to refuse to cany those who, by 
 reason of their physical or mental condition, would injure, endanger, 
 disturb, or annoy other passengers ; and an analogous rule may be 
 applicable to the common carriage of goods. Healthy passengers in a 
 palatial car would not be provided with reasonable accommodations if 
 they were there unreasonably and negligently exposed by the carrier 
 to the society of small-pox patients. Sober, quiet, moral, and sensi- 
 tive travellers may have cause to complain of their accommodations if 
 the}' are unreasonably exposed to the companionship of unrestrained, 
 intoxicated, noisy, profane, and abusive passengers, who may enjoy 
 the discomfort the} - cast upon others. In one sense, both classes, car- 
 ried together, might be provided with equal accommodations ; in another 
 sense, the}' would not. The feelings not corporal, and the decencies of 
 progressive civilization, as well as physical life, health, and comfort, 
 are entitled to reasonable accommodations. 2 Greenl. Ev. sec. 222 a/ 
 Bennett v. Dutton, 10 N. LL 481, 486. Mental and moral sensibilities, 
 unreasonably wounded, may be an actual cause of suffering, as plain 
 as a broken limb ; and if the injury is caused by unreasonableness of 
 facilities or accommodations (which is synonymous with unreasonable- 
 ness of service), it may be as plain a legal cause of action as any 
 bodily hurt, commercial inconvenience, or pecuniar}' loss. To allow 
 one passenger to be made uncomfortable by another committing an 
 outrage, without physical violence, against the ordinary proprieties of 
 life and the common sentiments of mankind, may be as clear a viola- 
 tion of the common right, and as clear an actionable neglect of a 
 common carrier's duty, as to permit one to occupy two seats while 
 another stands in the aisle. Although reasonableness of service or 
 price may require a reasonable discrimination, it does not tolerate an 
 unreasonable one ; and the law does not require a court or jury to 
 w r aste time in a useless investigation of the question whether a proved 
 injurious unreasonableness of service or price was in its intrinsic or 
 in its discriminating quality. The main question is, not whether the 
 unreasonableness was in this or in that, but whether there was un- 
 reasonableness, and whether it was injurious to the plaintiff. 
 
 This question may be made unnecessarily difficult by an indcfinite- 
 ness, confusion, and obscurity of ideas that may arise when the public 
 duty of a common carrier, and the correlative common right to his 
 reasonable service for a reasonable price, are not clearly and broadly 
 distinguished from a matter of private charity. If A receives, as a 
 charity, transportation service without price, or for less than a reason- 
 able price, from B, who is a common carrier, A does not receive it as
 
 McDUFFEE V. PORTLAND & ROCHESTER RAILROAD. 145 
 
 his enjoyment of the common right ; B does not give it as a perform- 
 ance of his public duty; C, who is required to pay a reasonable price 
 for a reasonable service, is not injured ; and the public, supplied with 
 reasonable facilities and accommodations on reasonable terms, cannot 
 complain that B is violating his public duty. There is, in such :i case, 
 no discrimination, reasonable or unreasonable, in that reasonable ser- 
 vice for a reasonable price which is the common right. A person who 
 is a common carrier may devote to the need}*, in any necessary form 
 of relief, all the reasonable profits of his business. lie has the same 
 right that any one else has to give money or goods or transportation 
 to the poor. But it is neither his legal duty to be charitable at his 
 own expense, nor his legal right to be charitable at the expense of 
 those whose servant he is. If his reasonable compensation for certain 
 carriage is one hundred dollars, and his just profit, not needed in his 
 business, is one tenth of that sum, he has ten dollars which he may 
 legally use for feeding the hungry, clothing the naked, or carrying 
 those in poverty to whom transportation is one of the necessaries of 
 life, and who suffer for lack of it. But if he charges the ten dollars to 
 those who pay him for their transportation, if he charges them one 
 hundred and ten dollars for one hundred dollars' worth of service, he 
 is not benevolent himself, but he is undertaking to compel those to be 
 benevolent who are entitled to his service; he is violating the common 
 right of reasonable terms, which cannot be increased by compulsory 
 contributions for any charitable purpose. So, if he carries one or 
 many for half the reasonable price, and reimburses himself by charging 
 others more than the reasonable price, he is illegally* administering, 
 not his own, but other people's charity. And when he attempts to 
 justify an instance of apparent discrimination on the ground of char- 
 ity, it ma}* be necessary to ascertain whose charity was dispensed, — 
 whether it was his, or one forced by him from others, including the 
 party complaining of it. But it will not be necessary to consider this 
 point further until there is some reason to believe that what the plain- 
 tiff complains of is defended as an act of disinterested benevolence 
 performed by the railroad at its own expense. 
 
 In Garton v. B. & E. R. Co., 1 B. & S. 112, 154, 1G5, when it was 
 not found that any unreasonable inequality had been made by the 
 defendants to the detriment of the plaintiffs, it was held that a reason- 
 able price paid by them was not made unreasonable by a less price 
 paid by others, — a proposition sufficiently plain, and expressed by 
 Crompton, J., in another form, when he said to the plaintiffs' counsel 
 during the argument of that case: '-The charging another person too 
 little is not charging you too much." The proposition takes it for 
 granted that it has been settled that the price paid by the party com- 
 plaining was reasonable, — a conclusion that settles the whole contro- 
 versy as to that price. But before that conclusion is reached, it may 
 be necessary to determine whether the receipt of a less price from 
 another person was a matter of charity, or an unreasonable discrimi- 
 
 10
 
 146 McDUFFEE V. PORTLAND & ROCHESTER RAILROAD. 
 
 nation and a violation of the common right. Charging A less than B 
 for the same service, or service of the same value, is not of itself neces- 
 sarily charging A too little, or charging B too much ; but it may be 
 evidence tending to show that B is charged too much, either by being 
 charged more than the actual value of the service, or by being made 
 the victim of an unjustifiable discrimination. The doctrine of reason- 
 ableness is not to be overturned b}' a conclusive presumption that every 
 inequality of price is the work of alms-giving, dictated by a motive of 
 humanity. If an apparent discrimination turns out, on examination, 
 to have been, not a discrimination in the performance of the public 
 duty, but a private charity, there is an end of the case. But if an ap- 
 parent discrimination is found to have been a real one, the question 
 is whether it was reasonable, and, if unreasonable, whether the party 
 complaining was injured by it. 
 
 In some cases, this may be an inquiry of some difficult}' in each of 
 its branches. But such difficulty as there ma}' be will arise from the 
 breadth of the inquiry, the intricate nature of the matter to be investi- 
 gated, the circumstantial character of the evidence to be weighed, and 
 the application of the legal rule to the facts, and not from an}* want of 
 clearness or certainty in the general principle of the common law ap- 
 plicable to the subject. The difficulty will not be in the common law, 
 and cannot be justly overcome by altering that law. The inquiry may 
 sometimes be a broad one, but it will never be broader than the justice 
 of the case requires. A narrow view that would be partial cannot be 
 taken ; a narrow test of right and wrong that would be grossly inequi- 
 table cannot be adopted. If the doctrine of reasonableness is not the 
 doctrine of justice, it is for him who is dissatisfied with it to show its 
 injustice ; if it is the doctrine of justice, it is for him to show the 
 grounds of his discontent. 
 
 The decision in N. E. Express Co. v. M. C. R. Co., 57 Me. 188, sat- 
 isfactorily disposed of the argument, vigorously and ably pressed by 
 the defendants in that case, that a railroad, carrying one expressman 
 and his freight on passenger trains, on certain reasonable conditions, 
 but under an agreement not to perform a like service for others, does 
 not thereby hold itself out as a common carrier of expressmen and 
 their freight on passenger trains, on similar conditions. So far as the 
 common right of mere transportation is concerned, and without reference 
 to the peculiar liability of a common carrier of goods as an insurer, 
 such an arrangement would, necessarily and without hesitation, be 
 found, by the court or the jury, to be an evasion. A railroad corpora- 
 tion, carrying one expressman, and enabling him to do all the express 
 business on the line of their road, do hold themselves out as common 
 carriers of expresses ; and when they unreasonably refuse, directly or 
 indirectly, to carry any more public servants of that class, they perform 
 this duty with illegal partiality. The legal principle, which establishes 
 and secures the common right, being the perfection of reason, the right 
 is not a mere nominal one. and is in no danger of being destroyed by
 
 McDUFFEE V. PORTLAND & ROCHESTER RAILROAD. 147 
 
 a quibble. If there could possibly be a case in which the exclusive 
 arrangement in favor of one expressman would not be an evasion of 
 the common-law right, the question might arise whether, under our 
 statute law (Gen. Stats, chs. 145, 14G, 149, 150), public railroad cor- 
 porations are not common carriers (at least to the extent of furnishing 
 reasonable facilities and accommodations of transportation on reason- 
 able terms) of such passengers and such freight as there is no good 
 reason for their refusing to carry. 
 
 The public would seem to have reason to claim that the clause of 
 Gen. Stats, eh. 146, sec. 1, — " Railroads being designed for the public 
 accommodation, like other highways, are public," — is a very compre- 
 hensive provision ; that public agents, taking private property for the 
 public use, are bound to treat all alike (that is, without unreasonable 
 preference) so far as the property is used, or its use is rightfully de- 
 manded, by the public for whose use it was taken ; and that, in a 
 country professing to base its institutions on the natural equality of 
 men in respect to legal rights and remedies, it cannot be presumed 
 that the legislature intended, in the charter of a common carrier, to 
 grant an implied power to create monopolies in the express business, 
 or in any other business, by undue and unreasonable discriminations. 
 There would seem to be great doubt whether, upon an}' fair construc- 
 tion of general or special statutes, a common carrier, incorporated in 
 this country, could be held to have received from the legislature the 
 power of making unreasonable discriminations and creating monopolies, 
 unless such power were conferred in ver}' explicit terms. And, if such 
 power were attempted to be conferred, there would be, in this State, a 
 question of the constitutional authority of the legislature to convey a 
 prerogative so hostile to the character of our institutions and the spirit 
 of the organic law. But, resting the decision of this case, as we do, 
 on the simple, elementary, and unrepealed principle of the common 
 law, equally applicable to individuals and corporations, we have no 
 occasion, at present, to go into these other inquiries. 1 
 
 Case discharged. 2 
 
 1 The rest of the opinion is omitted. — En. 
 
 2 " An express company engaged in the husiness of transporting small' packages has 
 as good a right to the benefits of the railroad as the owners of the packages possess in 
 person. It is impossible that they can all appear in person to claim their rights, and 
 it is sufficient that they are represented by agents who are intrusted with their goods, 
 and have a special property in them. The business of carrying what is called " ex- 
 press matter " has recently grown up, and is productive of great public advantage. 
 The objection to carrying such matters, ou the ground of the novelty of the business, 
 has nothing in it deserving serious consideration. If all the improvements of this pro- 
 gressive age are to be excluded from railroad transportation because they were not in 
 existence when the charters were granted for the roads, the public would soon be de- 
 prived of the chief value of these important works. The law is not so unreasonable in 
 its constructions. The rights of express agents or carriers have been fully recognized 
 in this respect in England. They are entitled to equal benefits with others, and no 
 exclusive advantages can be granted to others to their injury. Piekford v. G. J. Ry., 
 10 M. & W. 397 ; Parker v. G. W. Ry., 7 M. & G. 253 ; Parker o, G. W. Ry., 11 C. B 
 545, 583."— Lewis, C. J., in Randford v. R. R., 24 Pa. 378. 
 
 Ace. New Eng. Exp. Co. v. R R., 57 Me 188. — Ed.
 
 148 THE EXPRESS CASES. 
 
 THE EXPRESS CASES. 
 Supreme Court of the United States, 1886. 
 [117 U.S. i.] 
 
 Mr. Chief Justice Watte delivered the opinion of the court. 1 
 
 These suits present substantially the same questions and may prop- 
 erly be considered together. They were each brought by an express 
 company against a railway company to restrain the railway company 
 from interfering with or disturbing in an}' manner the facilities there- 
 tofore afforded the express company for doing its business on the 
 railway of the railway company. . . . The evidence shows that the 
 express business was first organized in the United States about the 
 year 1839. ... It has become a public necessit}', and ranks in im- 
 portance with the mails and with the telegraph. It employs for the 
 purposes of transportation all the important railroads in the United 
 States, and a new road is rarely opened to the public without being 
 equipped in some form with express facilities. It is used in almost 
 every conceivable wa}", and for almost every conceivable purpose, by 
 the people and by the government. All have become accustomed to 
 it, and it cannot be taken away without breaking up many of the long 
 settled habits of business, and interfering materially with the con- 
 veniences of social life. 
 
 In this connection it is to be kept in mind that neither of the rail- 
 road companies involved in these suits is attempting to deprive the 
 general public of the advantages of an express business over its road. 
 The controversy, in each case, is not with the public but with a single 
 express company. And the real question is not whether the railroad 
 companies are authorized by law to do an express business themselves ; 
 nor whether they must carry express matter for the public on their 
 passenger trains, in the immediate charge of some person specially 
 appointed for that purpose ; nor whether they shall carry express 
 freights for express companies as they carry like freights for the gen- 
 eral public ; but whether it is their duty to furnish the Adams Com- 
 pany or the Southern Company facilities for doing an express business 
 upon their roads the same in all respects as those they provide for 
 themselves or afford to any other express company. 
 
 When the business began railroads were in their infancy. They 
 were few in number, and for comparatively short distances. There 
 has never been a time, howeA^er, since the express business was started 
 that it has not been encouraged by the railroad companies, and it is 
 no doubt true, as alleged in each of the bills filed in these cases, that 
 " no railroad compan}' in the United States . . . has ever refused to 
 transport express matter for the public, upon the application of some 
 express company of some form of legal constitution. Every railway 
 
 1 Part of the opinion is omitted. — Ed.
 
 THE EXPRESS CASES. 149 
 
 company . . . has recognized the right of the public to demand trans- 
 portation by the railway facilities which the public has permitted to be 
 created, of that class of matter which is known as express matter." 
 Express companies have undoubtedly invested their capital and built 
 up their business in the hope and expectation of securing and keeping 
 fur themselves such railway facilities as they needed, and railroad com- 
 panies have likewise relied upon the express business as one of their 
 important sources of income. 
 
 But it is neither averred in the bills, nor shown by the testimony, 
 that any railroad company in the United States has ever held itself 
 out as a common carrier of express companies, that is to say, as a 
 common carrier of common carriers. On the contrary it has been 
 shown, and in fact it was conceded upon the argument, that, down to 
 the time of bringing these suits, no railroad company had taken an 
 express company on its road for business except under some special con- 
 tract, verbal or written, and generally written, in which the rights and the 
 duties of the respective parties were carefully fixed and defined. These 
 contracts, as is seen by those in these records, vary necessarily in their 
 details, according to the varying circumstances of each particular case, 
 and according to the judgment and discretion of the parties immedi- 
 ately concerned. It also appears that, with very few exceptions, only 
 one express company has been allowed by a railroad company to do 
 business on its road at the same time. In some of the States, statutes 
 have been passed which, either in express terms or b}' judicial inter- 
 pretation, require railroad companies to furnish equal facilities to all 
 express companies, Gen. Laws N. H., 1878, ch. 163, § 2; Rev. Stat. 
 Maine, 1883, 494, ch. 51, § 134; but these are of comparative recent 
 origin, and thus far seem not to have been generally adopted. . . . 
 
 The reason is obvious wh}* special contracts in reference to this busi- 
 ness are necessary. The transportation required is of a kind which 
 must, if possible, be had for the most part on passenger trains. It 
 requires not only speed, but reasonable certainty as to the quantity 
 that will be carried at any one time. As the things carried are to be 
 kept in the personal custody of the messenger or other employe of the 
 express company, it is important that a certain amount of car space 
 should be specially set apart for the business, and that, this should, as 
 far as practicable, be put in the exclusive possession of the express- 
 man in charge. As the business to be done is " express," it implies 
 access to the train for loading at the latest, and for unloading at the 
 earliest, convenient moment. All this is entirely inconsistent with the 
 idea of an express business on passenger trains free to all express 
 carriers. Railroad companies are by law carriers of both persons and 
 property. Passenger trains have from the beginning been provided for 
 the transportation primarily of passengers and their baggage. This 
 must be done with reasonable promptness and with reasonable comfort 
 to the passenger. The express business on passenger trains is in a 
 degree subordinate to the passenger business, and it is consequently
 
 150 THE EXPEESS CASES. 
 
 the duty of a railroad company in arranging for the express to see that 
 there is as little interference as possible with the wants of passengers. 
 This implies a special understanding and agreement as to the amount 
 of car space that will be afforded, and the conditions on which it is to 
 be occupied, the particular trains that can be used, the places at which 
 they shall stop, the price to be paid, and all the varying details of a 
 business which is to be adjusted between two public servants, so that 
 each can perform in the best manner its own particular duties. All 
 this must necessariby be a matter of bargain, and it by no means fol- 
 lows that, because a railroad company can serve one express company 
 in one way, it can as well serve another company in the same waj', and 
 still perform its other obligations to the public in a satisfactory manner. 
 The car space that can be given to the express business on a passenger 
 train is, to a certain extent, limited, and, as has been seen, that which 
 is allotted to a particular carrier must be, in a measure, under his exclu- 
 sive control. No express company can do a successful business unless 
 it is at all times reasonabby sure of the means it requires for trans- 
 portation. On important lines one company will at times fill all the 
 space the railroad compan}' can well allow for the business. If this 
 space had to be divided among several companies, there might be occa- 
 sions when the public would be put to inconvenience by delays which 
 could otherwise be avoided. So long as the public are served to their 
 reasonable satisfaction, it is a matter of no importance who serves 
 them. The railroad company performs its whole dut}- to the public at 
 large and to each individual when it affords the public all reasonable 
 express accommodations. If this is done the railroad company owes 
 no duty to the public as to the particular agencies it shall select for 
 that purpose. The public require the carriage, but the company may 
 choose its own appropriate means of carriage, always provided thej T are 
 such as to insure reasonable promptness and security. 
 
 The inconvenience that would come from allowing more than one 
 express company on a railroad at the same time was apparent^ so 
 well understood both by the express companies and the railroad com- 
 panies that the three principal express companies, the Adams, the 
 American, and the United States, almost immediately on their organ- 
 ization, now more than thirty years ago, by agreement divided the 
 territory in the United States traversed by railroads among themselves, 
 and since that time each has confined its own operations to the par- 
 ticular roads which, under this division, have been set apart for its 
 special use. No one of these companies has ever interfered with the 
 other, and each has worked its allotted territory, always extending its 
 lines in the agreed directions as circumstances would permit. At the 
 beginning of the late civil war the Adams Company gave up its terri- 
 tory in the Southern States to the Southern Company, and since then 
 the Adams and the Southern have occupied, under arrangements 
 between themselves, that part of the ground originally assigned to the 
 Adams alone. In this way these three or four important and in flu-
 
 THE EXPRESS CASES. 151 
 
 ential companies were able substantially to control, from 1854 until 
 about the time of the bringing of these suits, all the railway express 
 business in the United States, except upon the Pacific roads and in 
 certain comparatively limited localities. In fact, as is stated in the 
 argument for the express companies, the Adams was occup3'ing when 
 these suits were brought, one hundred and fifty-five railroads, with a 
 mileage of 21.216 miles, the American two hundred roads, with a mile- 
 age of 28,000 miles, and the Southern ninety-five roads, with a mileage 
 of 10,000 miles. Through their business arrangements with each other, 
 and with other connecting lines, they have been able for a long time 
 to receive and contract for the deliver}* of any package committed to 
 their charge at almost any place of importance in the United States 
 and in Canada, and even at some places in Europe and the W< -^L 
 Indies. They have invested millions of dollars in their business, and 
 have secured public confidence to such a degree that they are trusted 
 unhesitatingly b}- all who need their services. The good will of their 
 business is of very great value, if they can keep their present facilities 
 for transportation. The longer their lines and the more favorable their 
 connections, the greater will be their own profits, and the better their 
 means of serving the public. In making their investments and in 
 extending their business, they have undoubtedly relied on securing and 
 keeping favorable railroad transportation, and in this they were en- 
 couraged by the apparent willingness of railroad companies to accom- 
 modate them ; but the fact still remains that they have never been 
 allowed to do business on any road except under a special contract, 
 and that as a rule only one express company has been admitted on a 
 road at the same time. 
 
 The territory traversed by the railroads involved in the present suits 
 is part of that allotted in the division between the express companies 
 to the Adams and Southern companies, and in due time after the roads 
 were built these companies contracted with the railroad companies for 
 the privileges of an express business. The contracts were all in writ- 
 ing, in which the rights of the respective parties were clearly defined, 
 and there is now no dispute about what they were. Each contract 
 contained a provision for its termination by either party on notice. 
 That notice has been given in all the cases by the railroad companies, 
 and the express companies now sue for relief. Clearly this cannot be 
 afforded by keeping the contracts in force, for both parties have agreed 
 that they may be terminated at any time by either party on notice ; 
 nor by making new contracts, because that is not within the scope 
 of judicial power. 
 
 The exact question, then, is whether these express companies can now 
 demand as a right what they have heretofore had onh* as by permission. 
 That depends, as is conceded, on whether all railroad companies are 
 now by law charged with the duty of carrying all express companies 
 in the way that express carriers when taken are usually carried, just as 
 they are with the duty of carrying all passengers and freights when
 
 152 THE EXPEESS CASES. 
 
 offered in the way that passengers and freight are carried. The con- 
 tracts which these companies once had are now out of the way, and 
 the companies at this time possess no other rights than such as belong 
 to any other company or person wishing to do an express business 
 upon these roads. If the}- are entitled to the relief the}- ask it is 
 because it is the duty of the railroad companies to furnish express 
 facilities to all alike who demand them. 
 
 The constitutions and the laws of the States in whi6h the roads are 
 situated place the companies that own and operate them on the foot- 
 ing of common carriers, but there is nothing which in positive terms 
 requires a railroad company to carry all express companies in the way 
 that under some circumstances they may be able without inconvenience 
 to cany one company. In Kansas, the Missouri, Kansas, and Texas 
 Company must furnish sufficient accommodations for the transporta- 
 tion of all such express freight as may be offered, and in each of the 
 States of Missouri, Arkansas, and Kansas railroad companies are prob- 
 ably prohibited from making unreasonable discriminations in their busi- 
 ness as carriers, but this is all.. 
 
 Such being the case, the right of the express companies to a decree 
 depends upon their showing the existence of a usage, having the force 
 of law in the express business, which requires railroad companies to 
 carry all express companies on their passenger trains as express carri- 
 ers are usually carried. It is not enough to establish a usage to cany 
 some express company, or to furnish the public in some way with the 
 advantages of an express business over the road. The question is not 
 whether these railroad companies must furnish the general public with 
 reasonable express facilities, but whether they must carry these par- 
 ticular express carriers for the purpose of enabling them to do an 
 express business over the lines. 
 
 In all these voluminous records there is not a syllable of evidence to 
 show a usage for the carriage of express companies on the passenger 
 trains of railroads unless specially contracted for. While it has uni- 
 formly been the habit of railroad companies to arrange, at the earliest 
 practicable moment, to take one express company on some or all of 
 their passenger trains, or to provide some other way of doing an ex- 
 press business on their lines, it has never been the practice to grant 
 such a privilege to more than one company at the same time, unless a 
 statute or some special circumstances made it necessary or desirable. 
 The express companies that bring these suits are certainly in no situ- 
 ation to claim a usage in their favor on these particular roads, because 
 their entry was originally under special contracts, and no other compa- 
 nies have ever been admitted except by agreement. By the terms of 
 their contracts they agreed that all their contract rights on the roads 
 should be terminated at the will of the railroad company. The}- were 
 willing to begin and to expand their business upon this understanding, 
 and with this uncertainty as to the duration of their privileges. The 
 stoppage of their facilities was one of the risks they assumed when
 
 THE EXPRESS CASES. 153 
 
 they accepted their contracts, and made their investments under them. 
 If the general public were complaining because the railroad companies 
 refused to carry express matter themselves on their passenger trains, 
 or to allow it to be carried by others, different questions would be 
 presented. As it is, we have only to decide whether these particular 
 express companies must be carried notwithstanding the termination of 
 their special contract rights. 
 
 The difficulty in the cases is apparent from the form of the decrees. 
 As express companies had always been carried by railroad companies 
 under special contracts, which established the duty of the railroad com- 
 pany upon the one side, and fixed the liabilit}' of the express company 
 on the other, the court, in decreeing the carriage was substantially 
 compelled to make for the parties such a contract for the business as 
 in its opinion they ought to have made for themselves. Having found 
 that the railroad company should furnish the express company with 
 facilities for business, it had to define what those facilities must be, 
 and it did so by declaring that they should be furnished to the same 
 extent and upon the same trains that the company accorded to itself 
 or to any other compan}' engaged in conducting an express business 
 on its line. It then prescribed the time and manner of making the 
 payment for the facilities and how the payment should be secured, as 
 well as how it should be measured. Thus, by the decrees, these rail- 
 road companies are compelled to carry these express companies at 
 these rates, and on these terms, so long as they ask to be carried, no 
 matter what other express companies pay for the same facilities or 
 what such facilities may, for the time being, be reasonably worth, unless 
 the court sees fit, under the power reserved for that purpose, on the 
 application of either of the parties, to ehange the measure of compen- 
 sation. In this wa}' as it seems to us, " the court has made an arrange- 
 ment for the business intercourse of these companies, such as, in its 
 opinion, they ought to have made for themselves," and that, we said 
 in Atchison, Topeka and Santa Fe Railroad Co. v. Denver db Neio 
 Orleans Railroad Co., 110 U. S. 667, followed at this term in Pull- 
 man's Palace Car Co. v. Missouri Pacific Railway Co., 1 15 U. S. 587, 
 could not be done. The regulation of matters of this kind is legisla 
 tive in its character, not judicial. To what extent it must come, if it 
 comes at all, from Congress, and to what extent it ma}' come from the 
 States, are questions we do not now undertake to decide ; but that it 
 must come, when it does come, from some source of legislative power, 
 we do not doubt. The legislature may impose a duty, and when im- 
 posed it will, if necessary, be enforced by the courts, but, unless a duty 
 lias been created either by usage or by contract, or by statute, the 
 courts cannot be called on to siive it effect. 
 
 The decree in each of the cases is reversed, a?id the suit is remanded, 
 with directions to dissolve the injunction, and, after adjusting the 
 accounts between the parties for business done while the injunc- 
 tions were in force, and decreeing the payment of any amounts 
 that may be found to be due, to dismiss the bills.
 
 154 THE EXPRESS CASES. 
 
 Mr. Justice Miller dissenting. 
 
 When these cases were argued before Circuit Judge McCrary and 
 myself at St. Louis, after due consideration and consultation with him 
 and Judge Treat, of the District Court, I announced certain proposi- 
 tions as the foundations on which the decrees should be rendered. 
 These were afterwards entered in the various circuits to which the 
 cases property belonged, and, I believe, in strict accordance with the 
 principles thus announced. 
 
 I am still of opinion that those principles are sound, and I repeat 
 them here as the reasons of my dissent from the judgment of the 
 court now pronounced in these cases. 
 
 They met the approval of Judge McCrary when they were submitted 
 to his consideration. They were filed in the court in the following 
 language : 
 
 " 1. I am of opinion that what is known as the express business is 
 a branch of the carrying trade that has, by the necessities of com- 
 merce and the usages of those engaged in transportation, become 
 known and recognized. 
 
 "That, while it is not possible to give a definition in terms which 
 will embrace all classes of articles usually so carried, and to define it 
 with a precision of words of exclusion, the general character of the 
 business is sufficiently known and recognized to require the court to 
 take notice of it as distinct from the transportation of the large mass 
 of freight usually carried on steamboats and railroads. 
 
 " That the object of this express business is to carry small and valu- 
 able packages rapidly, in such a manner as not to subject them to the 
 danger of loss and damage, which, to a greater or less degree, attends 
 the transportation of heavy or bulky articles of commerce, as grain, 
 flour, iron, ordinary merchandise, and the like. 
 
 "2. It has become law and usage, and is one of the necessities of 
 this business, that these packages should be in the immediate charge of 
 an agent or messenger of the person or company engaged in it, and to 
 refuse permission to this agent to accompany these packages on steam- 
 boats or railroads on which they are carried, and to deny them the 
 right to the control of them while so carried, is destructive of the 
 business and of the rights which the public have to the use of the rail- 
 roads in this class of transportation. 
 
 "3. I am of the opinion that when express matter is so confided 
 to the charge of an agent or messenger, the railroad company is no 
 longer liable to all the obligations of a common carrier, but that when 
 loss or injury occurs, the liability depends upon the exercise of due 
 care, skill, and diligence on the part of the railroad company. 
 
 "4. That, under these circumstances, there does not exist on the 
 part of the railroad company the right to open and inspect all pack- 
 ages so carried, especially when they have been duly closed or sealed 
 up by their owners or by the express carrier. 
 
 "5. I am of the opinion that it is the duty of every railroad com-
 
 THE EXPRESS CASES. 155 
 
 pany to provide such conveyance by special cars, or otherwise, attached 
 to their freight and passenger trains, as are required for the sale and 
 proper transportation of this express matter on their roads, and that 
 the use of these facilities should be extended on equal terms to all who 
 are actually and usually engaged in the express business. 
 
 " If the number of persons claiming the right to engage in this busi- 
 ness at the same time, on the same road, should become oppressive, 
 other considerations might prevail ; but until such a state of affairs 
 is shown to be actually in existence in good faith, it is unnecessary 
 to consider it. 
 
 " 6. This express matter and the person in charge of it should be 
 carried by the railroad company at fair and reasonable rates of com- 
 pensation ; and where the parties concerned cannot agree upon what 
 that is, it is a question for the courts to decide. 
 
 " 7. I am of the opinion that a court of equity, in a case properly 
 made out, has the authority to compel the railroad companies to carry 
 this express matter, and to perform the duties in that respect which I 
 have already indicated, and to make such orders and decrees, and to 
 enforce them by the ordinary methods in use necessaiy to that end. 
 
 " 8. While I doubt the right of the court to fix in advance the pre- 
 cise rates which the express companies shall pa}' and the railroad 
 company shall accept, I have no doubt of its right to compel the 
 performance of the service by the railroad company, and after it is 
 rendered to ascertain the reasonable compensation and compel its 
 payment. 
 
 " 9. To permit the railway company to fix upon a rate of com- 
 pensation which is absolute, and insist upon the payment in advance or 
 at the end of every train, would be to enable them to defeat the just 
 rights of the express companies, to destroy their business, and would 
 be a practical denial of justice. 
 
 " 10. To avoid this difficulty, I think that the court can assume 
 that the rates, or other mode of compensation heretofore existing be- 
 tween any such companies are 'prima facie reasonable and just, and 
 can require the parties to conform to it as the business progresses, with 
 the right to either party to keep and present an account of the busi- 
 ness to the court at stated intervals, and claim an addition to, or 
 rebate from, the amount paid. And to secure the railroad companies 
 in any sum which ma}' be thus found due them, a bond from the ex- 
 press company may be required in advance. 
 
 "11. When no such arrangement has heretofore been in existence 
 it is competent for the court to devise some mode of compensation to 
 be paid as the business progresses, with like power of final revision on 
 evidence, reference to master, &c. 
 
 "12. I am of opinion that neither the statutes nor constitutions 
 of Arkansas or Missouri were intended to affect the right asserted in 
 these cases ;.nor do they present an}' obstacle to such decrees as may 
 enforce the right of the express companies."
 
 156 THE EXPRESS CASES. 
 
 Three years' reflection and the renewed and able argument in this 
 court have not changed my belief in the soundness of these principles. 
 
 That there may be slight errors in the details of the decrees of the 
 Circuit Courts made to secure just compensation for the services of the 
 railroad companies is possibly true, but I have not discovered them, 
 and the attention of the court has not been given to them in deciding 
 this case ; for holding, as it does, that the complainants were entitled 
 to no relief whatever, it became unnecessary to consider the details of 
 the decrees. 
 
 I only desire to add one or two observations in regard to matters 
 found in the opinion of this court. 
 
 1. The relief sought in these cases is not sought on the ground of 
 usage in the sense that a long course of dealing with the public has 
 established a custom in the nature of law. Usage is onby relied on as 
 showing that the business itself has forced its wav into general recos- 
 nition as one of such necessity to the public, and so distinct and 
 marked in its character, that it is entitled to a consideration differ- 
 ent from other modes of transportation. 
 
 2. It is said that the regulation of the duties of earning by the 
 railroads, and of the compensation they shall receive, is legislative in 
 its character and not judicial. 
 
 As to the duties of the railroad company, if they are not, as com- 
 mon carriers, under legal obligation to cany express matter for any 
 one engaged in that business in the manner appropriate and usual in 
 such business, then there is no case for the relief sought in these bills. 
 But if they are so bound to carry, then in the absence of any legislative 
 rule fixing their compensation I maintain that that compensation is 
 a judicial question. 
 
 It is, then, the ordinary and ever-recurring question on a quantum 
 meruit. The railroad compan}- renders the service which, by the law 
 of its organization, it is bound to render. The express compan}- re- 
 fuses to pay for this the price which the railroad company demands, 
 because it believes it to be exorbitant. That it is a judicial question to 
 determine what shall be paid for the service rendered, in the absence 
 of an express contract, seems to me beyond doubt. 
 
 That the legislature may, in proper case, fix the rule or rate of com- 
 pensation, I do not den}'. But until this is done the court must decide 
 it, when it becomes matter of controvers}\ 
 
 The opinion of the court, while showing its growth and importance, 
 places the entire express business of the country wholl}- at the mercy 
 of the railroad companies, and suggests no means by which they can 
 be compelled to do it. According to the principles there announced, 
 no railroad company is bound to receive or carry an express messen- 
 ger or his packages. If they choose to reject him or his packages, 
 they can throw all the business of the country back to the crude condi- 
 tion in which it was a half-century ago, before Harndeu estal dished 
 his local express between the large Atlantic cities ; for, let it be remem-
 
 OLD COLONY RAILROAD V. TRIPP. 157 
 
 bered that plaintiffs have never refused to pay the railroad companies 
 reasonable compensation for their services, but those companies refuse 
 to carry for them at any price or under any circumstances. 
 
 I am very sure such a proposition as this will not long be acquiesced 
 in by the great commercial interests of the country and by the public, 
 whom both railroad companies and the express men are intended to 
 serve. If other courts should follow ours in this doctrine, the evils to 
 ensue will call for other relief. 
 
 It is in view of amelioration of these great evils that, in dissenting 
 here, I announce the principles which I earnestly believe ought to con- 
 trol the actions and the rights of these two great public services. 
 
 Mb. Justice Field dissenting. 
 
 I agree with Mb. Justice Miller in the positions he has stated, 
 although in the cases just decided I think the decrees of the courts 
 below require modification in several particulars ; they go too far. 
 But I am clear that railroad companies are bound, as common carriers, 
 to accommodate the public in the transportation of goods according to 
 its necessities, and through the instrumentalities or in the mode best 
 adapted to promote its convenience. Among these instrumentalities 
 express companies, by the mode in which their business is conducted, 
 are the most important and useful. 
 
 Mr. Justice Matthews took no part in the decision of these cases. 1 
 
 OLD COLONY RAILROAD v. TRIPP. 
 Supreme Judicial Court of Massachusetts, 1888. 
 
 [147 Mass. 35 ; 17 N. E. 89.] 
 
 W. Allen, J., delivered the opinion of the court. 
 
 Whatever implied license the defendant may have had to enter the 
 plaintiff's close had been revoked by the regulations made by the 
 plaintiff for the management of its business and the use of its property 
 in its business. The defendant entered under a claim of right, and 
 can justify his entry only by showing a right superior to that of the 
 plaintiff. The plaintiff has all the rights of an owner in possession, 
 except such as are inconsistent with the public use for which it holds 
 its franchise; that is, with its duties as a common carrier of persons 
 and merchandise. As concerns the case at bar, the plaintiff is obliged 
 to be a common carrier of passengers; it is its duty to furnish rea- 
 sonable facilities and accommodations for the use of all persons who 
 seek for transportation over its road. It provided its depot for the 
 use of persons who were transported on its cars to or from the sta- 
 
 1 Ace. Pfister v. R. R., 70 Cal. 169 ; Louisville, &c. Ry. v. Keefer, 146 Ind 21 ; 44 
 N. E. 796; Sargent v. R. R., 115 Mass. 416; Exp. Co. v. R. R., Ill N. C. 463; 16 S. 
 E. 393. — Ki..
 
 158 OLD COLONY RAILROAD V. TltlPP. 
 
 tion, and holds it for that use; and it has no right to exclude from it 
 persons seeking access to it for the use for which it was intended and 
 is maintained. It can subject the use to rules and regulations; but 
 by statute, if not by common law, the regulations must be such as to 
 secure reasonable and equal use of the premises to all having such 
 right to use them. See Pub. Stat. chap. 112, § 188; Fitchburg Railroad 
 v. Gage, 12 Gray, 393; Spofford v. Boston & Maine Railroad, 128 
 Mass. 326. The station was a passenger station. Passengers taking 
 and leaving the cars at the station, and persons setting down passen- 
 gers or delivering merchandise or baggage for transportation from 
 the station, or taking up passengers or receiving merchandise that 
 had been transported to the station, had a right to use the station 
 buildings and grounds, superior to the right of the plaintiff to exclu- 
 sive occupancy. All such persons had business with the plaintiff, 
 which it was bound to attend to in the place and manner which it had 
 provided for all who had like business with it. 
 
 The defendant was allowed to use the depot for any business that 
 he had with the plaintiff. But he had no business to transact with 
 the plaintiff. He had no merchandise or baggage to deliver to the 
 plaintiff or to receive from it. His purpose was to use the depot as a 
 place for soliciting contracts with incoming passengers for the trans- 
 portation of their baggage. The railroad company may be under 
 obligation to the passenger to see that he has reasonable facilities for 
 procuring transportation for himself and his baggage from the station, 
 where his transit ends. What conveniences shall be furnished to 
 passengers within the station for that purpose is a matter wholly be- 
 tween them and the company. The defendant is a stranger both to 
 the plaintiff and to its passengers, and can claim no rights against the 
 plaintiff to the use of its station, either in his own right or in the 
 right of passengers. The fact that he is willing to assume relations 
 with any passenger, which will give him relations with the plaintiff 
 involving the right to use the depot, does not establish such rela- 
 tions or such right; and the right of passengers to be solicited by 
 drivers of hacks and job-wagons is not such as to give to all such 
 drivers a right to occupy the platforms and depots of railroads. 
 If such right exists, it exists, under the statute, equally for all; and 
 railroad companies are obliged to admit to their depots, not only 
 persons having business there to deliver or receive passengers or 
 merchandise, but all persons seeking such business, and to furnish 
 reasonable and equal facilities and conveniences for all such. 
 
 The only case we have seen which seems to lend any countenance 
 to the position that a railroad company has no right to exclude per- 
 sons from occupying its depots for the purpose of soliciting the 
 patronage of passengers is Markham v. Brown, 8 N. H. 523, in 
 which it was held that an innholder had no right to exclude from his 
 inn a stagedriver who entered it to solicit guests to patronize his 
 stage in opposition to a driver of a rival line who had been admitted
 
 OLD COLONY RAILROAD V. TRIPP. 159 
 
 for a like purpose. It was said to rest upon the right of the passen- 
 gers rather than that of the driver. However it may be with a guest 
 at an inn, we do not think that passengers in a railroad depot have 
 such possession of a right in the premises as will give to carriers of 
 baggage, soliciting their patronage, an implied license to enter, irrev- 
 ocable by the railroad company. Barney v. Oyster Bay II. Steam- 
 boat Co. 67 N. Y. 301, and Jencks v. Coleman, 2 Sumn. 221, are 
 cases directly in point. See also Com. v. Power, 7 Met. 596, and 
 Harris v. Stevens, 31 Vt. 79. 
 
 It is argued that the statute gave to the defendant the same right to 
 enter upon and use the buildings and platforms of the plaintiff, which 
 the plaintiff gave to Porter & Sons. The plaintiff made a contract 
 with Porter & Sons to do all the service required by incoming passen- 
 gers, in receiving from the plaintiff, and delivering in the town, bag- 
 gage and merchandise brought by them; and prohibited the defendant 
 and all other owners of job-wagons from entering the station for the 
 purpose of soliciting from passengers the carriage of their baggage 
 and merchandise, but allowed them to enter for the purpose of deliv- 
 ering baggage or merchandise, or of receiving any for which they had 
 orders. Section 188 of the Pub. Stats, chap. 112, is in these words: 
 "Every railroad corporation shall give to all persons or companies 
 reasonable and equal terms, facilities, and accommodations for the 
 transportation of themselves, their agents, and servants, and of any 
 merchandise and other property, upon its railroad, and for the use 
 of its depot and other buildings and grounds, and, at any point 
 where its railroad connects with another railroad, reasonable and 
 equal terms and facilities of interchange." A penalty is prescribed 
 in § 191 for violations of the statute. The statute, in providing 
 that a railroad corporation shall give to all persons equal facilities 
 for the use of its depot, obviously means a use of right. It does 
 not intend to prescribe who shall have the use of the depot, but 
 to provide that all who have the right to use it shall be furnished 
 by the railroad company with equal conveniences. The statute 
 applies only to relations between railroads as common carriers, 
 and their patrons. It does not enact that a license given by a 
 railroad company to a stranger shall be a license to all the world. 
 If a railroad company allows a person to sell refreshments or news- 
 papers in its depots, or to cultivate flowers on its station-grounds, the 
 statute does not extend the same right to all persons* If a railroad 
 company, for the convenience of its passengers, allows a baggage 
 expressman to travel in its cars to solicit the carriage of the baggage 
 of passengers, or to keep a stand in its depot for receiving orders 
 from passengers, the statute does not require it to furnish equal 
 facilities and conveniences to all persons. The fact that the defend- 
 ant, as the owner of a job-wagon, is a common carrier, gives him 
 no special right under the statute; it only shows that it is possible 
 for him to perform for passengers the service which he wishes to 
 solicit of them.
 
 160 OLD COLONY RAILROAD V. TRIPP. 
 
 The English Railway & Canal Traffic Act, 17 & 18 Vict. chap. 31, 
 requires every railway and canal company to afford all reasonable 
 facilities for traffic, and provides that "no such company shall make 
 or give any undue or unreasonable preference or advantage to or in 
 favor of any particular person or company, or any particular descrip- 
 tion of traffic, in any respect whatsoever." Marriott v. London & S. 
 W. R. Co. 1 C. B. N. S. 499, was under this statute. The complaint 
 was that the omnibus of Marriott, in which he brought passengers to 
 the railroad, was excluded by the railway company from its station 
 grounds, when other omnibuses, which brought passengers, were 
 admitted. An injunction was ordered. Beaded v. Eastern Counties 
 R. Co. 2 C. B. N. S. 509, was a complaint, under the statute, that 
 the railway company refused to allow the complainant to ply for 
 passengers at its station, it having granted the exclusive right of 
 taking up passengers within the station, to one Clark. The respond- 
 ent allowed the complainant's cabs to enter the station for the purpose 
 of putting down passengers, and then required him to leave the yard. 
 An injunction was refused. One ground on which the case was dis- 
 tinguished from Marriott's was that the complainant was allowed to 
 enter the yard to set down passengers, and was only prohibited from 
 remaining to ply for passengers. See also Painter v. London, B. & 
 S. C. R.^Co. 2 C. B. N. S. 702; Barker v. Midland R. Co. 18 C. B. 
 4G. Besides Marriott's Case, supra, Palmer v. London, B. & S. C. 
 R. Co. L. R. 6 C. P. 194, and Parkinson v. Great Western R. Co. 
 L. R. 6 C. P. 554, are cases in which injunctions were granted under 
 the statute: in the former case, for refusing to admit vans containing 
 goods to the station-yard for delivery to the railway company for 
 transportation by it; in the latter case, for refusing to deliver at 
 the station, to a carrier authorized to receive them, goods which had 
 been transported on the railroad. 
 
 We have not been referred to any decision or dictum, in England 
 or in this country, that a common carrier of passengers and their 
 baggage to and from a railroad station has any right, without the 
 consent of the railroad company, to use the grounds, buildings, and 
 platforms of the station for the purpose of soliciting the patronage 
 of passengers; or that a regulation of the company which allows such 
 use by particular persons, and denies it to others, violates any right 
 of the latter. Cases at common law or under statutes to determine 
 whether railroad companies in particular instances gave equal terms 
 and facilities to different parties to whom they furnished transporta- 
 tion, and with whom they dealt as common carriers, have no bearing 
 on the case at bar. The defendant, in his business of solicitor of the 
 patronage of passengers, held no relations with the plaintiff as a com- 
 mon carrier, and had no right to use its station-grounds and buildings. 
 
 A majority of the court are of the opinion that there should be — 
 
 Judgment on the verdict} 
 
 1 Ace. Brown o. N. Y. C. & H. R. R. R., 27 N. Y. Sup. 69. —Ed.
 
 OLD COLONY RAILROAD V. TRIPP. 161 
 
 Field, J. 1 The Chief Justice, Mr. Justice Devens, and myself 
 thiuk that our statutes should receive a different construction from 
 that given to them by a majority of the court. . . . 
 
 The provision that every railroad corporation shall give to all per- 
 sons or companies reasonable and equal terms, facilities, and accom- 
 modations for the use of the depot and other buildings and grounds, 
 must include the use of the depot and other buildings and grounds for 
 receiving passengers and merchandise from a railroad at the terminus 
 where the transportation on the railroad ends, as well as for deliver- 
 ing oasseno-ers and merchandise to a railroad at the terminus where 
 such transportation begins. As the last clause of the section makes 
 provision for carriers connecting by railroad, we think that the pre- 
 ceding clause was intended to make provision for other connecting 
 carriers, and to include public or common carriers as well as private 
 carriers actually employed by passengers or by the owners or con- 
 signees of merchandise. Stages and expresses are the only common 
 carriers of passengers and of merchandise to and from many places in 
 the Commonwealth, and, in connection with railroads, often form a 
 continuous line of transportation. The statute, we think, was in- 
 tended to prevent unjust discrimination by a railroad corporation be- 
 tween common carriers connected with it in any manner, and to 
 require that the railroad corporation should furnish to such carriers 
 reasonable and equal terms, facilities, and accommodations in the use 
 of its depot and other buildings and grounds for the interchange of 
 traffic. 
 
 A railroad corporation can make reasonable rules and regulations 
 concerning the use of its depot and other buildings and grounds, and 
 can exclude all persons therefrom who have no business with the 
 railroad, and it can probably prohibit all persons from soliciting 
 business for themselves on its premises. Whatever may be its right 
 to exclude all common carriers of passengers or of merchandise from 
 its depot and grounds, who have not an order to enter, given by 
 persons who are, or who intend to become, passengers, or who own 
 or are entitled to the possession of merchandise which has been or is 
 to be transported, it cannot arbitrarily admit to its depot and grounds 
 one common carrier and exclude all others. The effect of such a 
 regulation would be to enable a railroad corporation largely to con- 
 trol the transportation of passengers and merchandise be} T ond its own 
 line and to establish a monopoly not granted by its charter which 
 might be solely for its own benefit and not for the benefit of the 
 public- Such a regulation does not give "to all persons or companies 
 reasonable and equal terms, facilities, and accommodations . . . for 
 the use of its depot and other buildings and grounds," in the trans- 
 portation of persons and property. See Parkinson v. Great Western 
 R. Co., L. R. 6 C P. 5f>4; Palmer v. London, B. & S. C. R. Co. Id. 
 
 1 Part of this opinion is omitted. — Ed. 
 11
 
 162 GRISWOLD V. WEBB. 
 
 194 ; New England Express Co. v. Maine Central R. Co. 57 Me. 
 
 loo. . . . 
 
 It is undoubtedly a convenience to passengers on a railroad, that 
 common carriers of passengers, or of baggage and other merchan- 
 dise, should be in waiting on the arrival of trains at a station, al- 
 though no order requiring the attendance of such carriers has been 
 previously given. 
 
 While the statute requiring a railroad corporation to give to all 
 persons and companies reasonable and equal terms, facilities, and 
 accommodations for the use of its depot and other buildings and 
 grounds must, from the nature of the subject, be so construed as to 
 permit the corporation to make such reasonable regulations as are 
 necessary to enable it to perform, without inconvenience, its duties 
 as a common carrier, and such as the size and condition of its depot 
 and other buildings and grounds require, yet the facts stated in the re- 
 port cannot be held sufficient to warrant the plaintiff in admitting one 
 company of expressmen to, and in excluding all others from, the ad- 
 vantages of bringing express wagons within its grounds, and of 
 accepting or of soliciting employment as a common carrier of bag- 
 gage from the passengers arriving at its depot. The report does not 
 show that any inconvenience to the railroad company, or to the public 
 using the railroad, was occasioned by the defendant entering the 
 grounds of the company for the purpose of soliciting employment as 
 a common carrier of baggage. Upon the facts, as they appear in 
 the report, it cannot be said that, within any reasonable construction 
 of the statute, reasonable and equal facilities were granted to the de- 
 fendant and to Porter & Sons ; or that any necessity existed for giving 
 a preference to the latter. 
 
 GRISWOLD v. WEBB. 
 Supreme Court of Rhode Island, 1889. 
 
 [16 R. I. 649: 19 Atl. 143.] 
 
 Stiness, J. The plaintiff is owner of Commercial Wharf, in New- 
 port, a part of which is leased to the Newport & Wickford Railroad 
 & Steam-Boat Company as a terminus. To preserve order upon 
 the wharf, stands are let for hackney carriages, and the following 
 rules are prescribed for its use: "Rules for Hackmen and Others. 
 (1) Drivers of hackney carriages shall remain on or near their 
 carriages, except when carrying baggage to or from them. (2) No 
 one shall occupy a hack-stand or express-stand except the licensee 
 or his employes. (3) No hackney carriage or express wagon shall 
 stand on the space to the eastward of the restaurant building, or on 
 the road-ways, except on licensed hack-stands, even though ordered 
 ,in .advance by a passenger." East of the restaurant building is a
 
 GKISWOLD V. WEBB. 163 
 
 plank walk for passengers, and east of the walk a space is reserved 
 for private carriages. The rest of the wharf is used for sidewalks, 
 road-ways, and buildings. The defendant, driver of a hackney car- 
 riage in Newport, went to the wharf, on the day in question, for a 
 lady who was to arrive in the boat, as he had been ordered to do by 
 the passenger, or some one in her behalf. He backed his hack as 
 near as he could to the space reserved for private carriages, when he 
 was ordered to leave the wharf by the superintendent, upon the ground 
 that he had no right to be there, having no license from the owner. 
 The plaintiff claimed that the wheels of the defendant's carriage were 
 backed on to the plank walk, but, upon all the testimony, we are not 
 satisfied this was so, or, if so, that it was anything more than acci- 
 dental. At any rate, the order to leave the wharf was not put upon 
 this ground, but because he had no right there. Upon receiving the 
 order to leave, the defendant stated, both to the plaintiff and to the 
 superintendent of the wharf, that he had been ordered there for a 
 passenger, and he refused to leave. The plaintiff then called a 
 policeman, who moved the carriage to another place in the road-way, 
 where the defendant remained until the boat arrived, when he took 
 his passenger and drove away. The passenger was an infirm lady, 
 who had been accustomed to ride with the defendant, and one who 
 was obliged to use a stool, which he had with him, to aid her in 
 getting into the carriage. The plaintiff sues in trespass, and the 
 defendant justifies under a right as servant of the passenger. The 
 question is whether the defendant had the right to enter and remain 
 upon the wharf to take the passenger, notwithstanding the rules and 
 the order to leave. We understand the rules to forbid an unlicensed 
 hackney carriage to stand upon the wharf at all ; for none are allowed 
 to stand in the road-ways, except on the licensed stands, and none are 
 allowed to occupy a stand without a license. But the wharf is leased 
 to a common carrier of passengers, with a provision that the space 
 east of the restaurant shall be reserved for the use of private car- 
 riages of passengers arriving at the wharf. 
 
 The question of right, therefore, is the same as it would be between 
 passengers and a company which owns its terminus. While such 
 ownership carries with it a right of control, in most respects the same 
 as in private property, a railroad station or steam-boat wharf is, to 
 some extent, a public place. The public have the right to come and 
 go there for the purpose of travel; for taking and leaving passengers; 
 and for other matters growing out of the business of the company as 
 a common carrier. But the company has the right to say that no 
 business of any other character shall be carried on within the limits 
 of its property. It has the right to say that no one shall come there 
 to solicit trade, simply because it may be convenient for travellers, 
 and so to say that none, except those whom it permits, shall solicit in 
 the business of hacking or expressing. When notice of such prohi- 
 bition has been given, the license which otherwise might be implied
 
 164 GRISWOLD V. WEBB. 
 
 is at an end, and it is the duty of persons engaged in any such busi- 
 ness to heed the notice and to retire from the premises. Barney v. 
 Steam-Boat Co., 67 N. Y. 301; Com. v. Power, 7 Met. 596. 
 
 But, while this is so, the company cannot deprive a passenger of 
 the ordinary rights and privileges of a traveller, among which is the 
 privilege of being transported from the terminus in a reasonably con- 
 venient and usual way. A company cannot compel a passenger to 
 take one of certain carriages, or none at all ; nor impose unreasonable 
 restrictions, which will amount to that. If a passenger orders a car- 
 riage to take him from the terminus, such carriage is, pro hac vice, 
 a private carriage; not in the sense that the passenger has a special 
 property in it, so as to be liable for the driver's negligence, but in 
 the sense that it is not "standing for hire." Masterson v. Short, 33 
 How. Pr. 481. The driver is not engaged in his vocation of solicit- 
 ing patronage, but is waiting to take one with whom a contract has 
 already been made. No question is made that a passenger may have 
 his own carriage enter the premises of a carrier to take him away; 
 but to say that one who is not so fortunate as to own a carriage shall 
 not be allowed to call the one he wants, because it is a hackney car- 
 riage, would be a discrimination intolerable in this country. Yet this 
 is really the plaintiff's claim. Every passenger has the right, upon 
 the premises of the carrier, to reasonable and usual facilities for 
 arrival and departure; and, so far as this includes the right to be 
 taken to and from a station or wharf, it is immaterial whether he goes 
 in a private or a hired carriage. Decisions upon this question have 
 not been numerous, and we know of but one directly in point, although 
 in others there are dicta which indicate what is understood to be the 
 law. Summitt v. State, 8 Lea, 413, was a conviction of the defend- 
 ant, a watchman in a depot, for assault in ejecting a hackman there- 
 from. The company had forbidden hackmen to enter the building. 
 Notwithstanding this rule, the right of a hackman to go into a part of 
 the depot to obtain the baggage of a passenger, whose check he had, 
 was not controverted. The prosecutor, having the check of a passen- 
 ger, was in another part of the depot; but it was held that the defend- 
 ant was not justified in ejecting him altogether from the station, and 
 the conviction was sustained. Tobin v. Railroad Co., 59 Me. 183, 
 was an action for damages by a hackman who was injured by step- 
 ping on a defective platform when leaving a passenger at the station. 
 The court say: "The hackman, conveying passengers to a railroad 
 depot for transportation, and aiding them to alight upon the platform 
 of the corporation, is as rightfully upon the same as the passengers 
 alighting." In this case it was not claimed that any rules had been 
 violated. The recent case of Railroad Co. v. Tripp, 147 Mass. 35, 
 was an action of trespass against an expressman who solicited patron- 
 age in the plaintiff's station, contrary to its rules. W. Allen, J., 
 says: "Passengers taking and leaving the cars at the station, and 
 persons setting down passengers or delivering merchandise or bag-
 
 GRISWOLD V. WEBB. 165 
 
 gage for transportation from the station, or taking up passengers or 
 receiving merchandise that had been transported to the station, had a 
 right to use the station buildings and grounds, superior to the right 
 of the plaintiff to exclusive occupancy. All such persons had busi 
 ness with the plaintiff, which it was bound to attend to in the place 
 and manner which it had provided for all who had like business with 
 it." A statute of Massachusetts prescribes that railroad corporations 
 shall give to all persons equal facilities for the use of its depot. 
 The court held that this statute applied only to the relations between 
 common carriers and their patrons, or those who had the right to use 
 the station. It did not give the defendant the right to go there to 
 solicit business because another had the right. See, also, Harris v. 
 Stevens, 31 Vt. 79. In Markham v. Brown, 8 N. II. 523, an action 
 of trespass, brought by an innkeeper against a stage driver, the 
 court say the defendant had clearly a right "to go to the plaintiff's 
 inn with travellers, and he might of course lawfully enter it for the 
 purpose of leaving their baggage and receiving his fare." The case 
 most nearly in support of the plaintiff's contention of those we have 
 seen is Barker v. Railroad Co., 18 C. B. 46, where it was held that an 
 omnibus proprietor, carrying passengers to and from a station, could 
 not maintain an action for a refusal to allow him to drive his vehicle 
 into the station yard. As the proprietor was not using or seeking to 
 use the railway, it was considered that the company owed him no 
 duty. Jervis, C. J., said a passenger would, no doubt, have a right 
 of action, if unduly obstructed, but a violation of duty to him would 
 not give an action to the plaintiff. It is to be observed that the 
 recent English cases are mainly controlled by statute (17 & 18 Vict. 
 c. 31), to which the Massachusetts statute is similar. They relate 
 chiefly to the question whether a prohibition to one, to ply for passen- 
 gers within a station, when the same right is granted to another, is 
 an undue preference, under the statute. It is generally held that it 
 is not. See In re Beaded, 2 C. B. (N. S.) 509; In re Painter, Id. 
 702; Hole v. Digby, 27 Wkly. Rep. 884. In the latter case it seems 
 to be conceded that one going, bona fide, to meet a passenger, would 
 not be guilty of trespass. In re Marriott, 1 C. B. (N. S.) 499, the 
 defendant company was ordered to admit the complainant's omnibus 
 into the station to receive and set down passengers and goods, as 
 other public vehicles were admitted. Upon the question before us, 
 we do not think these cases are in conflict with the views we have 
 above expressed. The case at bar differs from Barker v. Railroad 
 Co., supra, in this: that here the hackney driver is not plaintiff, 
 seeking to recover damages for the revocation of a license to go upon 
 the wharf, or for a breach of duty to another, but the defendant 
 against an alleged trespass, who relied upon his right as servant of 
 the other to justify his being there. "VVe think the justification is 
 sufficient. It is substantially given by the terms of the lease to the 
 steam-boat company. This does not deprive the owner of the general
 
 166 MONTANA UNION EY. V. LANGLOIS. 
 
 control of his wharf, nor interfere with his reasonable rules for its 
 management. It simply secures to a passenger the common privilege 
 of a passenger, and enables the hackney driver to shield himself from 
 an apparent violation of the rules only when he is acting, bona fide, 
 as the servant of such passenger. This qualification guards the 
 owner from an incursion of unlicensed drivers under a mere pretense 
 of serving passengers, and also confines the right of soliciting busi- 
 ness on his premises to those whom he may permit. We give judg- 
 ment for the defendant for his costs. 
 
 MONTANA UNION RY. v. LANGLOIS. 
 
 Supreme Court of Montana, 1890. 
 
 [9 Mont. 419 ; 24 Pac. 209.] 
 
 Harwood, J. 1 The whole question involved in this controversy is 
 compassed by the proposition, on the part of the plaintiff, "that it is 
 the owner of said grounds, depot buildings, and platform, and that 
 it may regulate the use of said platform as it desires, providing the 
 travelling public is not inconvenienced; that it may, if it desires, 
 engage in carrying passengers in hacks to and from its trains; that, 
 if it was so engaged, it would have the right to its own property for 
 such purpose; that, if it has such rights, it can as well employ Lovell 
 Brothers with hacks to do such service as to own the backs; that, if 
 the plaintiff has the right to its platform, it has the right to sell that 
 right to Lovells for a valuable consideration," and should be protected 
 in the exercise and benefits of these rights. These propositions are 
 controverted by defendants in so far as they affirm the right of the 
 plaintiff to grant exclusive use of a portion of said platform to one 
 party to approach and occupy the same, to convey passengers thereto, 
 and receive passengers therefrom, and exclude all others from so 
 doing. No complaint is made that any reasonable rule or regulation 
 made by plaintiff for the government of its depot platform or grounds 
 has been violated, or that defendants have committed any act which 
 interferes with the transaction of plaintiff's business, except in so 
 far as defendants interfere with the exclusive use of said portion of 
 plaintiff's platform granted to Lovell Bros. In respect to the delivery 
 of the United States mail matter at said platform, and transportation 
 thereof to the United States post-office in the city of Butte, it is 
 admitted that ample space for that purpose is left to the use of the 
 company and its employes, according to its requirements. The 
 question of handling the United States mail matter, it seems, is inci- 
 dentally brought into this controversy; the transfer of this mail 
 matter for the plaintiff being principally the consideration performed 
 
 1 Part of the statement of facts contained in the opinion of the court is omitted. 
 — Ed.
 
 MONTANA UNION RY. V. LANGLOIS. .167 
 
 by Lovell Bros, for the grant of exclusive use of the designated por- 
 tions of the railway platform to them, at which place Lovell Bros. 
 may ply for passengers to patronize their hacks and carriages. 
 
 If the plaintiff has the right to grant the exclusive use of its plat- 
 form in the respect mentioned, it may be granted for any other valid 
 consideration as well. It is not denied that a railway company may 
 make and enforce all reasonable rules and regulations necessary to' 
 govern persons coming to its station buildings, platform, and 
 grounds. It is highly proper and beneficial to all concerned that this 
 be done. The law recognizes this right on the part of the common 
 carrier, and the courts enforce it. Upon this point the learned 
 counsel for appellant cites many authorities, with which this court 
 agrees: but we conceive that the matter under consideration is a far 
 different proposition. The grant of a special privilege to Lovell 
 Bros, to use the specified portion of plaintiff's platform at said station, 
 and the exclusion of all from approaching thereto, to land or receive 
 passengers, is not a rule or regulation, in the common acceptation of 
 these terms as used in the legal authorities, and applied to this sub- 
 ject. We therefore find in the numerous and valuable authorities 
 cited on that theory only general aid in solving this controversy. A 
 general rule or regulation, as applied to the government of the con- 
 duct of persons, or of a class of persons, contemplates uniformity, 
 and not discrimination, in its requirements. This controversy must 
 be solved by a consideration of the mutual rights of the appellant as 
 a common carrier and its passengers. All passengers in common 
 are entitled to equal opportunities and conveniences of place to 
 approach and depart from plaintiff's trains. At the station men- 
 tioned the railway company either commences or terminates its 
 engagement to transport its passengers to and from said station, as 
 the case may be. The contract of the railway company does not 
 require that it either furnish conveyance to bring the passenger to 
 said platform, or transport him therefrom. The passenger may 
 employ whom he desires to bring him there for the departure on 
 plaintiff's trains, or to meet and receive him on his arrival at said 
 station. But the plaintiff contends that it may grant the exclusive 
 use of a large portion of its platform to one party, at which to land 
 passengers for departure on said trains, or to receive passengers from 
 said trains, and, if the passenger is willing to contract with this one 
 party for transportation thereto or therefrom, such passenger may 
 have the convenience of landing or departing from that portion of 
 said platform ; otherwise, he must land 50 feet away from said plat- 
 form, or go to another portion of the platform, incumbered with 
 express and baggage wagons and the handling of freight and baggage 
 matter. Suppose a passenger travels every day from this station, and 
 returns, he is entitled to the same convenience and facilities for 
 approaching and leaving this depot as other passengers. If he con- 
 tracts with another than Lovell Bros., or the party to whom the rail
 
 168 MONTANA UNION KY. V. LANGLOIS. 
 
 way company has granted the exclusive use of said portion of the 
 platform to bring him there, and be there to receive him on his return, 
 he must alight from his carriage, or be received by it 50 feet away 
 from said platform, or be lauded where the express and baggage 
 matter is handled; while the passenger who employs Lovell Bros, 
 for the same purpose may land at and depart from this convenient 
 portion of said platform. Or if a party desired to use his own car- 
 riage to bring him to said station, or receive him on his return, it 
 seems the same conditions would prevail. 
 
 Certainly, if the plaintiff has the right to grant the exclusive use 
 of said platform to one, and exclude the public hackmen therefrom, 
 it would apparently have the right to exclude the private hackmen 
 therefrom. To the strong it would perhaps make no difference, as 
 a matter of convenience, just where they were landed at or received 
 from said station; but to the feeble and the helpless, and those 
 incumbered with their care, it would be a matter of great discom- 
 fiture and inconvenience. Still other conditions which directly result 
 from the position demanded by plaintiff, and which militate against 
 the equal rights of passengers, may be suggested. Suppose all other 
 hackmen who desire to compete with Lovell Bros, for the carrying 
 passengers to and from this depot will perform the service for half 
 the sum charged by Lovell Bros., are the passengers entitled to the 
 benefit of this competition? Has not the passenger the right to call 
 these other hackmen to his service, and, if he does call them, has he 
 not a right to have such other hackmen approach the platform at the 
 same place, or at least have an equal and common chance to approach 
 at this same convenient place, as his co-passenger wdio employs 
 Lovell Bros. ? If any of the passengers do accept these better terms, 
 they must suffer the discrimination of being denied a landing at that 
 portion of the platform granted exclusively to Lovell Bros., or, 
 when they alight from plaintiff's trains, they either go 50 feet away 
 from that portion of said platform, or to the east side of the depot 
 building, for transportation with a hackman at the less rate. It is a 
 rule of universal application that the public is entitled to whatever 
 competition may grow out of the public demands, on the one hand, 
 and the contest of others to supply such demands, and receive the com- 
 pensation therefor. Are not the conditions here sought to be so con- 
 trolled by the plaintiff as to stifle the natural development of such 
 competition? It is alleged by the plaintiff that by its arrangement 
 with Lovell Bros, the latter engage to have a sufficient number of 
 hacks and carriages, at the arrival of all passenger trains, to trans- 
 port such passengers to the city of Butte from said station. But the 
 plaintiff does not contract to carry its passengers destined to said 
 station beyond that point, nor to see that such passengers are pro- 
 vided with transportation beyond that point. The plaintiff simply 
 undertakes to reap a benefit from the necessity of its passengers, to 
 procure on their own account, and from such party, and on such
 
 MONTANA UNION RY. V. LANGLOIS. 169 
 
 terms as they may, transportation to the city. This benefit is sought 
 to be derived by the plaintiff from a grant of the most favorable 
 portion of the platform, where plaintiff sees (it to land its passen- 
 gers, exclusively to one party to solicit their patronage, and, for this 
 grant, such party aids plaintiff in carrying out its contract to deliver 
 the United States mails at the post-office in the city of Butte. On 
 principle we cannot reconcile these conditions which are demanded 
 by appellant with the rule that all who come to take passage or who 
 arrive at the station of a common carrier are entitled to equal con- 
 venience and opportunity to approach said station or depart there- 
 from. It seems to us that the direct effect of appellant's position is 
 to say to its passengers, "You must employ Lovell Bros., or suffer 
 certain inconveniences in taking passage with another." 
 
 These observations are not to be confounded with the question as 
 to whether the railway company may not exclude all hackmen from 
 its station buildings, or even from the platform, or set bounds on its 
 grounds beyond which they should not come, as the exigencies of the 
 situation and business might reasonably require, or to make and 
 enforce any other reasonable rule as to the government of its depot 
 buildings and grounds. It is not a general question of that character 
 which here engages the consideration of the court. The constitution 
 of this state (article 15, § 7) provides that "no discrimination in 
 charges or facilities for transportation of freight or passengers of 
 the same class shall be made by any railroad or transportation or 
 express company between persons or places within the state." 
 
 The reported cases, involving like or similar facts as the one at 
 bar, which have come to our attention, are few in number. The 
 recent case of Railroad Co. v. Tripp, 147 Mass. 35, is the nearest in 
 point. The facts involved in that case are quite similar to the case 
 at bar, although it appears from the statement of facts and the 
 opinion that while exclusive grant was made by the railroad company 
 to Porter & Sous to come upon the depot premises to solicit passen- 
 gers and baggage for transportation, and all other hackmen were 
 forbidden to come there for that purpose, still all hackmen were 
 allowed equal privileges to come to the station to deliver passengers 
 and baggage, and to receive such as they had a previous order for. 
 While we concur in the general principles of law applicable to common 
 carriers announced by the majority of the nearly evenly divided court 
 in that case we cannot subscribe to the conclusions drawn by the 
 majority. On the contrary, after a careful consideration of that case, 
 we are inclined to adopt the reasoning and conclusion of the dissent- 
 ing opinion delivered by the three minority judges. The majority 
 opinion in that case very clearly and forcibly states the general prin- 
 ciples of law governing common carriers applicable to the present 
 consideration. The court says: "The plaintiff is obliged to be a 
 common carrier of passengers. It is its duty to furnish reasonable 
 facilities and accommodations for the use of all persons who seek 
 for transportation over its road. It provides its depot fo- the usp *
 
 170 MONTANA UNION BY. V. LANGLOIS. 
 
 persons who were transported on its cars, to or from the station, and 
 holds it for that use; and it has no right to exclude from it persons 
 seeking access to it for the use for which it was intended and is 
 maintained. It can subject the use to rules and regulations; but by 
 statute, if not by common law, the regulations must be such as 
 secure reasonable and equal use of the premises to all having such 
 right to use them." We do not find it consonant with reason, based 
 upon those general propositions, to draw the conclusion that the 
 railroad company may bring its passengers to a common landing, 
 where the necessity, comfort, or convenience of their situation com- 
 pels them to obtain on their own account transportation to some 
 place beyond, and there introduce them to one favored party, saying: 
 l 'If you engage transportation from this party, you may do so here on 
 the spot, without delay or inconvenience, and take passage from this 
 platform without delay or inconvenience, provided you will engage 
 this particular party, and pay his demands; otherwise, you must 
 suffer the importunity of this party to take passage with him, and if 
 you will not, you must suffer the inconvenience and delay of going to 
 some other point to engage conveyance and take passage." All this 
 the railroad does, not for a benefit to the passengers, but for a bene- 
 fit to itself, over and above what the passenger has paid for transpor- 
 tation over the railroad. If the railroad company set bounds beyond 
 which all hackmen were forbidden to come, and undertook to forbid 
 all solicitation within the depot or on the platform on the part of 
 hackmen or others for employment, this would be an entirely different 
 proposition. The company does not undertake to protect the passen- 
 ger from that annoyance in these cases, but invites it, and farms out 
 the exclusive privilege and opportunity to do this. In the case cited 
 supra, the majority of the court bases its conclusion on the ground 
 that the hackman has no right or license to be in plaintiff's depot 
 without the express or tacit permission of plaintiff; and this license, 
 if granted, may be revoked at pleasure. We may grant this premise. 
 The right which the railroad has to exclude all hackmen from its 
 depot buildings and platform may rest upon the same principle. 
 But has the railroad company, in dealing with its passengers, and 
 exercising a control over their movements aud the conditions which 
 surround thern for the time being, a right to place one hackman in 
 their midst, with exclusive control over the common conveniences 
 aud facilities of the place at which the passenger may land, or from 
 which he ma}' depart, so that, if the passenger obtain the use of 
 these conveniences and facilities, he must purchase the privilege from 
 such hackmen or suffer discrimination? The use of these common 
 conveniences and facilities belong to the passengers alike, in the 
 order in which they may come to occupy them; whereas the railroad 
 company has granted away what belonged to the passengers in com- 
 mon, and the one holding the grant ma}' use it as an advantage 
 over the passenger, to compel his employment. It is said in the 
 opinion cited supra: "If a railroad company allows a person to sell
 
 MONTANA UNION KY. V. LANGLOIS. 171 
 
 refreshments or newspapers in its depots, or to cultivate flowers on 
 its station grounds, the statute does not extend the same right to all 
 persons." Upon this proposition it might be suggested that the 
 passenger has no common interest or rights which meet and inter 
 mingle with the rights of the common carrier on this subject, or which 
 are affected by such a grant. The same reply may be made, we 
 think, with good reason, to the proposition as to a place to serve 
 refreshments on the premises of the plaintiff. The passenger has no 
 common rights which are taken away or interfered with by the com- 
 pany in this respect. It is true, the passenger's necessities may re- 
 quire that he have food at proper times on his journey; but all pas- 
 sengers have an equal right to provide supplies, under regulations 
 which apply to all alike as to the amount of baggage allowed to each. 
 Moreover, this question has no relation to the mutual engagements 
 existing between the common carrier and its passengers. The pas- 
 senger has purchased, or proposes to purchase, from the common car- 
 rier, transportation, and he must come to the station to receive such 
 transportation, and on arriving at his destination he must depart 
 from the station. The right to come to the station, and depart there- 
 from, under reasonable regulations which apply alike to all passen- 
 gers, without special conditions, is incidental to the main contract; 
 while the supply of refreshments or newspapers, or the cultivation of 
 flowers, at the station grounds, has, as we conceive, no appropriate con- 
 nection with the engagements of the passenger and the common carrier. 
 
 The case cited supra is the only American case brought to our 
 attention which passes upon points directly involved herein. The 
 subject is apparently a new one in this country. The English cases 
 involving the main subject of controversy are also few in number. 
 In the case of Marriott v. Railway Co., 1 C. B. (N. S.) 499, the 
 complainant, Marriott, alleged that he brought passengers to defend- 
 ant's railway station, and the latter refused him access to the station 
 grounds to deliver his passengers there, while at the same time this 
 privilege was granted to other omnibuses; and, upon this showing, 
 an injunction was granted. Other English cases bearing upon the 
 main subject here under consideration have been examined. Beaded 
 v. Railway Co., 2 C. B. (N. S.) 509; Painter v. Railway Co., Id. 702; 
 Barker v. Railway Co., 18 C. B. 46. The demands in the case at 
 bar on the part of plaintiff go beyond those urged in any of the cases 
 so far examined by us. 
 
 Upon grounds of sound reason, public policy, and the general prin- 
 ciples of law governing common carriers, as well as the provisions of 
 the constitution, we believe the order of the court below ought to be 
 affirmed ; and it is so ordered. 
 
 Blake, C. J., concurs. 1 
 
 1 Ace. Indian River S. B. Co. r. East Coast Transp. Co., 28 Fla. 387, 10 So. 480 ; 
 McConnell v. Pedigo, 92 Ky. 465, 18 S. W. 15 ; Kalamazoo Hack & Bus Co. v. Sootsma, 
 84 Mich. 194, 47 N. W. 667 ; Cravens v. Rodgers, 101 Mo. 247. 14 S. W. 106. 
 
 See Oregon Short Line & U. N. Ry. r. Ilwaco Ry. & Nav. Co., 51 Fed. 611. — Ed.
 
 172 STATE V. STEELE. 
 
 STATE v. STEELE. 
 Supreme Court of North Carolina, 1890. 
 
 [106 N. C. 766; 11 S. E. 478.] 
 
 This was a criminal action, tried before Charles A. Moore, 
 Judge, and a jury, at the October term of the Criminal Court of 
 Buncombe County, on an appeal from a court of a justice of the peace 
 of said county. 1 . . . 
 
 The court charged the jury as follows: — 
 
 "If you shall find from the evidence that others engaged in the 
 same business as the prosecutor were permitted by the defendant to 
 go to the Battery Park Hotel for the same purpose for which the 
 prosecutor went there, — that is, to secure and transact business for 
 his employer's livery stable, — then the prosecutor had also the right 
 to go there for that purpose at reasonable times, and to remain there 
 a reasonable length of time for the transaction of such business; and 
 it would not matter that the rules of the hotel forbade his entering 
 the premises of the hotel for that purpose, or that he had been pre- 
 viously forbidden, in writing, to come upon the premises of the hotel, 
 nor would it matter that the defendant had designated a place at the 
 back of the hotel where livery-men could transact their livery business 
 with the guests of the hotel, through the servants and employes of the 
 hotel, even though the prosecutor knew of such place being so desig- 
 nated. He would not, however, have the right to go there at all 
 times, nor would he have the right to remain there all the time, or an 
 unreasonable length of time, for the transaction of such business, 
 against the will of the owner or manager." . . . 
 
 Avery, J. It was formerly held by the courts of England that 
 where an innkeeper allured travellers to his tavern by holding 
 himself out to the public as ready to entertain them, and then refused 
 to receive them into his house when he had room to accommodate 
 them, and after they had teudered the money to pay their bills, he was 
 liable to indictment. But this doctrine, says Bishop (Volume I. 
 § 532, Crim. Law), "has little practical effect at this time, being 
 rather a relic of the past than a living thing of the present." Bex v. 
 Luellin, 12 Mod. 445. In a dictum in State v. Matthews, 2 Dev. & 
 B. 424, this old principle was stated with some qualification, viz., 
 that "all and every one of the citizens have a right to demand enter- 
 tainment of a public innkeeper, if they behave themselves, and are 
 willing and able to pay for their fare; and, as all have a right to go 
 there and be entertained, they are not to be annoyed there by dis- 
 order, and if the innkeeper permits it he is subject to be indicted 
 as for a nuisance." Rommel v. Schanbacker, 120 Pa. 579. The 
 duty and legal obligation resting upon the landlord is to admit only 
 
 1 Part of the statement of facts is omitted. — Ed.
 
 STATE V. STEELE. 173 
 
 such guests as demand accommodation, and he lias the right to refuse 
 to allow even travellers who are manifestly so filthy, drunken, or 
 profane as to prove disagreeable to others who are inmates, and 
 thereby to injure the reputation of his house, to enter his inn for food 
 or shelter, though they may be abundantly able to pay his charges. 
 2 Whart. Crim. Law, § 1587; Keg. v. Rymer, 13 Cox, Crim. (as. 
 378. The right to demand admission to the hotel is confined to pri- 
 sons who sustain the relation of guests, and does not extend to every 
 individual who invades the premises, not in response to the invitation 
 given by the keeper to the public, but in order to gratify his curiosity 
 by seeing, or his cupidity by trading with, patrons who are under the 
 protection of the proprietor. 1 Whart. Crim. Law, § 625. The land- 
 lord is not only under no obligation to admit, but he has the power to 
 prohibit the entrance of, any person or class of persons into his house 
 for the purpose of plying his guests with solicitations for patronage 
 in their business; and especially is this true when the very nature of 
 the business is such that human experience would lead us to expect 
 the competing "drummers," in the heat of excitement, not only to 
 trouble the guests by earnest and continued approaches, but by their 
 noise, or even strife. The guest has a positive right to demand of the 
 host such protection as will exempt him from annoyance by such 
 persons as intrude upon him without invitation and without welcome, 
 and subject him to torture by a display of their wares or books, or a 
 recommendation of their nostrums or business. That learned and 
 accomplished jurist, Chief Justice Shaw, delivering the opinion in 
 Com. v. Power, 7 Met. 600, said: "An owner of a steamboat or rail- 
 road, in this respect, is in a condition somewhat similar to that of an 
 innkeeper, whose premises are open to all guests, yet he is not only 
 empowered, but he is bound, so to regulate his house as well with 
 regard to the peace and comfort of his guests, who there seek repose, 
 as to the peace and quiet of the vicinity, and to repress and prohibit 
 all disorderly conduct therein, and of course he has a right and is 
 bound to exclude from his premises all disorderly persons, and all 
 persons not conforming to regulations necessary and proper to secure 
 such quiet and good order." This principle was stated as an estab- 
 lished one, and used by the court as an argument to sustain by 
 analogy its ruling announced in a subsequent portion of the opinion, 
 that a railroad company had a right by its regulations to exclude from 
 its depot and cars, at any station, persons who visited them for the 
 purpose of soliciting passengers to stop at particular hotels; and 
 one of the reasons given for holding the regulation reasonable was 
 that, where the agent urged the claims of their respective hotels "with 
 earnestness and importunity, it was an annoyance to passengers." 
 The doctrine is there laid down, too, that persons other than passen- 
 gers pri ma facie have the right to enter the depot of a railroad company, 
 as others besides guests may go into hotels, without making themselves 
 trespassers, because in both instances there is an implied license given
 
 174 STATE V. STEELE. 
 
 to the public to enter. But such licenses in their nature are revocable, 
 except in the one case as to passengers, and in the other as to guests, 
 who have the right to enter the train, ticket-office, or hotel, as the 
 case may be, if they are sober, orderly, and able to pay for transpor- 
 tation or fare. The court went further in that case, and held that, 
 in enforcing the reasonable regulation against "drummers" for hotels 
 at the depot, the servants of the railway company were not guilty of 
 an assault for expelling by force, not excessive, a person who had 
 repeatedly violated the regulation by going upon the platform and 
 soliciting for a hotel, though on the particular occasion when he was 
 ejected from it he had a ticket, and intended to take the train des- 
 tined for another town, but failed to disclose to such servants the fact 
 that he entered for "another purpose, when it was in his power to 
 do so." 
 
 Were we to follow the analogy to which the principle laid down in 
 that case would lead, an innkeeper could not only make aud enforce a 
 regulation forbidding persons to come on his premises for the purpose 
 of soliciting his guests to patronize the livery stables that they might 
 represent, but he might, in enforcing the rule against one who had 
 previously violated it after notice that he should not do so, put such 
 person off his premises, without excessive force, though at the partic- 
 ular time the person had entered with the bona fide intent to become a 
 guest at the hotel, but failed to announce his purpose; or, under the 
 same principle, he might expel by force one who becomes a guest, 
 and takes advantage of his situation to subject other inmates of the 
 house to the annoyance of "drumming" for such establishments. The 
 same distinction is drawn between guests and others who enter an 
 hotel intent on business or pleasure by the courts of Pennsylvania. 
 In Com. v. Mitchell, 1 Phila. 63, and Com. v. Mitchel, 2 Pars. 
 Eq. Cas. 431, it was held that an innkeeper is bound to receive and 
 furnish food and lodging for all who enter his hotel as guests, and 
 tender him a reasonable price for such accommodation; but "if an 
 individual [other than a guest] has entered a public inn, and his pres- 
 ence is disagreeable to the proprietor or his guests, he has a right to 
 request the person to depart, and, if he refuses, the innkeeper has the 
 right to lay his hands gently upon him, and lead him out, and, if 
 resistance is made, to employ sufficient force to put him out," with- 
 out incurring liability to indictment "for assault and batter}'." . . . 
 
 [The learned judge here stated and commented upon the cases of 
 Jencks v. Coleman, 2 Sum. 224: Barney v. Steam-Boat Co., 67 N. Y. 
 302; Harris v. Stevens, 31 Vt. 79; Old Colony R. R. v. Tripp, 147 
 Mass. 35. J 
 
 Upon a review of all the authorities accessible to us, and upon the 
 application of well-established principles of law to the admitted facts 
 of this particular case, we are constrained to conclude that there was 
 error in the charge given by the court to the jury, because: 
 
 1. Guests of an hotel, and travellers or other persons entering it
 
 STATE V. STEELE. 175 
 
 with the bona fide intent of becoming guests, cannot be lawfully 
 prevented from going in or put out by force, after entrance, provided 
 they are able to pay the charges and tender the money necessary for 
 that purpose, if requested by the landlord, unless they be persons of 
 bad or suspicious character, or of vulgar habits, or so objectionable 
 to the patrons of the house, on account of the race to which they be- 
 long, that it would injure the business to admit them to all portions 
 of the house, or unless they attempt to take advantage of the freedom 
 of the hotel to injure the landlord's chances of profit derived either 
 from his inn or any other business incidental to or connected with its 
 management, and constituting a part of the provision for the wants 
 or pleasure of his patrons. Jencks v. Coleman, supra; Com. v. 
 Mitchell, supra ; Com. v. Power, supra; Pinkerton v. Woodward, 91 
 Amer. Dec. 660; Barney v. Steam-Boat Co., supra; 1 Whart. dim. 
 Law, § 621; Ang. Carr. §§ 525, 529, 530; Britton v. Railroad Co., 88 
 N. C. 536. 
 
 2. When persons unobjectionable on account of character or race 
 enter an hotel, not as guests, but intent on pleasure or profit, to be 
 derived from intercourse with its inmates, they are there, not of 
 right, but under an implied license that the landlord may revoke at 
 any time; because, barring the limitation imposed by holding out 
 inducements to the public to seek accommodation at his inn, the 
 proprietor occupies it as his dwelling-house, from which he may expel 
 all who have not acquired rights, growing out of the relation of guest, 
 and must drive out all who, by their bad conduct, create a nuisance 
 and prove an annoyance to his patrons. Harris v. Stevens, 31 Vt. 
 79 ; 1 Whart. Crim. Law, § 625. 
 
 3. The regulation, if made by any innkeeper, that the proprietors 
 of livery stables, and their agents or servants, shall not be allowed 
 to enter his hotel for the purpose of soliciting patronage for their 
 business from his guests, is a reasonable one, and, after notice to 
 desist, a person violating it may be lawfully expelled from his house, 
 if excessive force be not used in ejecting him. Com. v. Power, 
 supra; Harris v. Stevens, supra. See, also, Griswold v. Webb, 16 
 R. I. 649 ; Railroad Co. v. Tripp, supra. 
 
 4. An innkeeper has unquestionably the right to establish a news- 
 stand or a barber-shop in his hotel, and to exclude persons who come 
 for the purpose of vending newspapers or books, or of soliciting 
 employment as barbers; and, in order to render his business more 
 lucrative, he may establish a laundry or a livery stable in connection 
 with his hotel, or contract with the proprietor of a livery stable in the 
 vicinity to secure for the latter, as far as he legitimately can, the 
 patronage of his guests in that line for a per centum of the proceeds 
 or profits derived by such owner of vehicles and horses from dealing 
 with the patrons of the public house. After concluding such a con- 
 tract, the innkeeper may make, and after personal notice to violators, 
 enforce, a rule excluding from his hotel the agents and representa-
 
 176 STATE v. STEELE. 
 
 tives of other livery stables who enter to solicit the patronage of his 
 guests; and where one has persisted in visiting the hotel for that 
 purpose, after notice to desist, the proprietor may use sufficient force 
 to expel him if he refuse to leave when requested, and may eject him, 
 even though on a particular occasion he may have entered for a lawful 
 purpose, if he does not disclose his true intent when requested to 
 leave, or whatever may have been his purpose in entering, if he in 
 fact has engaged in soliciting the patronage of the guests. Barney 
 v. Steam-Boat Co., supra; Jencks v. Coleman, and Harris v. Stevens, 
 supra ; Aug. & A. Corp. § 530. 
 
 5. The broad rule laid down by Wharton (1 Crim. Law, § 625) is 
 that "the proprietor of a public inn has a right to request a person 
 who visits it, not as a guest or on business with a guest, to depart, 
 and if he refuse the innkeeper has a right to lay his hands gently upon 
 him, and lead him out, aud, if resistance be made, to employ sufficient 
 force to put him out; and for so doing he can justify his conduct on 
 a prosecution for assault and battery." It will be observed that the 
 author adopts in part the language already quoted from the courts of 
 Pennsylvania. 
 
 6. If it be conceded that the prosecutor went into the hotel at the 
 request of a guest, and for the purpose of conferring with the latter on 
 business, still, in any view of the case, if, after entering, he engaged 
 in "drumming " for his employer when he had been previously notified 
 to desist in obedience to a regulation of the house, the defendant had 
 a right to expel him if he did not use more force than was necessary; 
 and if the prosecutor, having entered to see a guest, did not then 
 solicit business from the patrons of the hotel, but had done so pre- 
 viously, the defendant, seeing him there, had a right to use sufficient 
 force to eject him, unless he explained, when requested to leave, what 
 his real intent was. Harris v. Stevens, and Com. v. Power, supra. 
 The guest, by sending for a hackman, could not delegate to him the 
 right to do an act for which even the guest himself might lawfully be 
 put out of the hotel. 
 
 7. If we go further, and admit, for the sake of argument, that the 
 principle declared in Markham v. Brown, 8 N. H. 530, aud relied on 
 to sustain the view of the court below, is not inconsistent with the 
 law on the same subject, as we find it laid down by Wharton and 
 other recognized authorities, still our case will be found to fall under 
 the exception to the general rule stated in express terms in that case. 
 The court said: "If one comes to injure his [the innkeeper's] house, 
 or if his business operates directly as an injury, that may alter the 
 case ; but that has not been alleged here ; and perhaps there may be 
 cases in which he may have a right to exclude all but travellers and 
 those who have been sent for by them. It is not necessary to settle 
 that at this time." There was no evidence in Markham v. Brown 
 that the proprietor of the hotel had any contract with another stage 
 line, or would suffer pecuniary loss or injury, if the agent who was
 
 STATE V. STEELE. 177 
 
 expelled was successful in bis solicitations; and it seems that Angell 
 and others, who cite as authority that case, as well as Jencks v. Cole- 
 man and Barney v. Steam-Boat Co., reconcile them by drawing the 
 distinction that in the latter cases, and in the hypothetical case of an 
 innkeeper, put by .Justice Story, the person whose expulsion was 
 justified was doing an injury to the proprietor, who had him removed, 
 bv diminishing his profits derived legitimately from a business used 
 as an adjunct to that of common carrier or innkeeper. In using the 
 language quoted above, Justice Parker seems to have had in his 
 mind, without referring to it, the opinion of Justice Story, delivered 
 in the circuit court but two years before (Jencks v. Coleman, supra). 
 8. The defendant, as manager of the hotel, could make a valid 
 contract, for a valuable consideration, with Sevier, to give him the 
 exclusive privilege of remaining in the house and soliciting patronage 
 from the guests in any business that grew out of providing for the 
 comfort or pleasure of the patrons of the house. The proprietors of 
 the public house might legitimately share in the profits of any such 
 incidental business, as furnishing carriages, buggies, or horses to the 
 patrons, and for that purpose had as full right to close their house 
 against one who attempted to injure the business in which they had 
 such interest as the owner of a private house would have had, and 
 this view of the case is consistent with the doctrine enunciated in 
 Markham v. Brown. There was no evidence tending to show that 
 Chambers had actual permission from the proprietors to approach the 
 inmates of the hotel on the subject of patronizing him, nor that they 
 had actual knowledge of the fact that he had continued his solicita- 
 tions after receiving a similar notice to that sent to the prosecutor. 
 The fact that he was overlooked or passively allowed to remain in the 
 hotel (it may be under the impression on the part of the defendant 
 that he had desisted from his objectionable practices) cannot, in any 
 view of the law, work a forfeiture of the right to enforce a reasonable 
 regulation, made to protect their legitimate business from injury. 
 If, therefore, a permit on the part of the defendant to Chambers to 
 "drum " gratuitously in the house would at once have opened his doors 
 to all of the competitors of the latter (a proposition that we are not 
 prepared to admit), the defendant did not, so far as the testimony dis- 
 closes the facts, speak to him on the subject; and the soundness of 
 the doctrine that, without interfering with the legal rights of the 
 guests, the proprietor of a hotel is prohibited by the organic law from 
 granting such exclusive privileges to any individual, as to the use or 
 occupancy of his premises, as any other owner of land may extend, 
 is not drawn in question. We therefore sustain the second and third 
 assignments of error. His honor erred, for the reasons given, in in- 
 structing the jury that the guilt of the defendant depended upon the 
 question whether he permitted Chambers or Sevier to solicit custom 
 in the house. He had a lawful right to discriminate, for a consider- 
 ation, in favor of Sevier, while it does not appear from the evidence 
 
 12
 
 178 HALE V. GKAND TRUNK RAILROAD. 
 
 that he granted any exclusive privileges to Chambers. We hold that 
 the regulation was such a one as an innkeeper had the power to 
 make, and must not be understood as approving the idea that the 
 sanction of the municipal authorities could impart validity to it, if it 
 were not reasonable in itself, and within the powers which the law 
 gives to proprietors of public houses in order that they may guard 
 their own rights and protect their patrons from annoyance. For the 
 reasons given the defendant is entitled to a new trial. 1 
 
 HALE v. GRAND TRUNK RAILROAD. 
 Supreme Court of Vermont, 1888. 
 
 [60 Vt. 605; 15 All. 300.] 
 
 Ross, J. 2 By the agreed case, November 2, 1885, the defendant 
 was operating a railway from Portland, Me., to Canada Line, and 
 had a station at Berlin Falls, N. H. As such it was carrying the 
 mail on its mail trains for the United States government, according 
 to the laws of the United States, and pursuant to the conditions and 
 regulations imposed by the post-office department, at a fixed compen- 
 sation. The plaintiff, on that evening, in attempting to go to its 
 mail train while stopping at the station at Berlin Falls, for the pur- 
 pose of mailing some letters, in the exercise of due and proper care, 
 fell from an unguarded and, as he claims, insufficiently lighted plat- 
 form, leading from the station to the train, and was injured. By the 
 regulations of the post-office department it was then the duty of 
 postal clerks on trains carrying the mail to receive at the cars among 
 other things, from the public, letters on which the postage had been 
 prepaid, and then to sell stamps with which to prepay such postage. 
 Sections 720, 762, Instructions to Railway Postal Clerks. Hence, 
 as a part of the service which the defendant was performing for the 
 government, and for which it was receiving compensation from the 
 government, it was under a duty to furnish the public a reasonably 
 safe passage to and from its mail trains, while stopping at its regular 
 stations, for the purpose of purchasing stamps and mailing such 
 letters. The plaintiff was a member of the public, and was attempt- 
 ing to pass over the platform provided by the defendant to the mail 
 train, for the lawful purpose of mailing two letters. By accepting 
 the carriage of the mail for the government, the defendant became 
 under the duty to furnish him a reasonably safe passage to its mail 
 train, for the purpose of mailing his letters. In attempting to pass 
 over the platform to its mail train for this purpose the plaintiff was 
 
 1 See Fluker v. Georgia R. R. & B. Co., 81 Ga. 461, 8 S. E. 529; Com. v. Power, 
 7 Met 596 ; Cole v. Rowen, 88 Mich. 219, 50 N W. 138 ; Smith v. New York, L. E. & 
 W. R. R. 149 Pa. 249, 24 Atl. 304. — Ed. 
 
 2 The opinion only is given ; it sufficiently states the case. — En.
 
 HALE V. GRAND TRUNK RAILROAD. 179 
 
 neither a trespasser, intruder, nor loafer, but was there to transact 
 business, which the defendant had undertaken to do with him, for a 
 compensation received from the government; in fact was there, at the 
 invitation of the defendant, to transact business which it had been 
 hired to perform for and with him, by the government. The duty of 
 the defendant to furnish the plaintiff a reasonably safe passage to its 
 mail train to mail his letters was none the less binding or obligatory 
 because the compensation received therefor came from the government 
 rather than the plaintiff. A. holds a regular passenger ticket over 
 a railroad. The duty of the company'operating the road to carry him 
 safely is none the less binding, nor are his legal rights, if injured, in 
 the least abridged because the ticket was paid for by the money of 
 B., rather than with his own money. The government derives a 
 large part of its revenue with which it pays for the mail service by 
 the sale of postage stamps to whomsoever of the public may desire to 
 use that arm of its service. The money which the plaintiff had paid 
 for the postage stamps upon the letters he was carrying, or which he 
 would have paid the postal clerk for stamps to use upon the letters, 
 was indirectly a payment to the defendant for the service which it 
 was about to perform for the plaintiff, in carrying the letters which 
 he was about to post, on the way towards their destination. But 
 whether the plaintiff paid indirectly to the defendant for the service 
 and accommodations which it was under a duty to furnish him, or the 
 government paid therefor, and gave it to the plaintiff, does not vary 
 the defendant's duty to furnish him a reasonably safe passage to the 
 mail car for the purpose of mailing his letters, nor are his legal rights 
 thereby abated. Actionable negligence is a failure in legal duty 
 which occasions an injury to a party free from contributory negli- 
 gence, or who has not failed in the discharge of his duty in the given 
 circumstances. They have also conceded in the agreed case that the 
 plaintiff exercised due and proper care ou the occasion. They only 
 contend that the defendant was under no legal duty to furnish the 
 plaintiff a reasonably safe passage to the mail car, for the purpose of 
 mailing his letters, mainly because he was to pay the defendant 
 nothing therefor directly. But, as we have already endeavored to 
 show, that fact would not relieve the defendant from the duty, inas- 
 much as it was paid by the government for discharging that duty to 
 the public; that is, to any person who had occasion to go to the mail 
 car when stopping at regular stations to transact any lawful business 
 with the servants of the government. These views would affirm the 
 judgment of the county court, but, in accordance with the stipulation 
 of the parties, that judgment is reversed pro forma, with costs to the 
 plaintiff, and the cause remanded for trial. 1 
 
 1 See Bradford v. Boston & M. R. R , 160 Mass. 392, 35 N. E. 1131. — Ed.
 
 180 LOUISVILLE & N. B. B. V. CBUNK. 
 
 LOUISVILLE & N. R. R. v. CRUNK. 
 Supreme Court of Indiana, 1889. 
 
 [119 Lid. 542; 21 N. E. 31.] 
 
 Olds, J. 1 The first cause for new trial assigned was the giving by 
 the court, at the request of the plaintiff, instructions 1, 2, 3, and 5. 
 We set out some of the instructions. No. 1 is as follows: "If you 
 believe from the evidence that at the time mentioned in the complaint 
 the defendant, for hire, agreed to receive, and did receive, on board 
 its train of cars at its passenger station at Mt. Vernon, Ind., one 
 George Naas as a passenger, and that the defendant had knowledge 
 that said Naas was at the time so sick and feeble as to render it 
 necessary for him to be carried into defendant's car, and the con- 
 ductor of said train then present had knowledge or had reasonable 
 grounds to believe that the plaintiff entered said car as an assistant 
 in carrying said Naas therein, and in seating said Naas in said car, 
 then you may find that the plaintiff rightfully entered said car, and 
 that the defendant owed the plaintiff the same duties, while he was 
 rendering said assistance to said Naas, and while he was leaving said 
 car, that it would owe to any of its passengers for hire." This in- 
 struction was proper. The defendant, in contracting to carry the 
 passenger, Naas, in his sick and enfeebled condition, contracted an 
 obligation which could only be carried out by Naas being carried 
 upon the train and seated in the car. By thus contracting to carry 
 Naas as a passenger it took upon itself the obligation of allowing him 
 assistants to place him upon the train, and seat him in the car, and 
 the compensation received by the defendant for conveying Naas from 
 Mt. Vernon to his destination included as well the right to have 
 assistants place him in the car as the carrying him after being so 
 placed in the car, and the defendant owed the same obligation to his 
 assistants while necessarily entering and leaving the car with Naas 
 as it owed to Naas himself. 2 
 
 SEARS v. EASTERN RAILROAD. 
 Supreme Judicial Court of Massachusetts, 1867. 
 
 [14 Allen, 433.] 
 
 Action containing one count in contract and one in tort. Each 
 count alleged that the defendants were common carriers of passengers 
 
 1 Only so much of the opinion as deals with the refusal to give instruction 1 is re- 
 printed. — Ed. 
 
 2 See Ry. v. Lawton, 55 Ark. 428, 18 S. W. 543 ; Coleman v. Georgia R. R. & B. 
 Co., 84 Ga. 1, 10 S. E. 498 ; Doss v. M. K. & T. R. R., 59 Mo. 27 ; Whitley v. Southern 
 Ry. (N..C.),.29 S..E. 783. — Ed.
 
 SEARS V. EASTERN RAILROAD. 1 SI 
 
 between Boston and Lynn, and that on the loth of September, I860, 
 the plaintiff was a resident of Nahant, near Lynn, and the defendants 
 before then publicly undertook and contracted with the public to run a 
 train for the carriage of passengers from Boston to Lynn at nine and 
 one half o'clock in the evening each week day, Wednesdays and Satur- 
 days excepted ; and the plaintiff, relying on said contract and under- 
 taking, purchased of the defendants a ticket entitling him to carriage 
 upon their cars between Boston and Lynn, and paid therefor twenty- 
 five cents or thereabouts, and on a certain week day thereafter, neither 
 "Wednesday nor Saturday, namely, on the loth of said September, pre- 
 sented himself on or before the hour of nine and a half o'clock in the 
 evening at the defendant's station in Boston and offered and attempted 
 to take the train undertaken to be run at that hour, as a passenger, but 
 the defendants negligently and wilfully omitted to run the said train at 
 that hour, or any train for Lynn, till several hours thereafter ; wherefore 
 the plaintiff was compelled to hire a livery carriage and to ride therein 
 to Lynn b} T night, and was much disturbed and inconvenienced. 
 
 The following facts were agreed in the Superior Court. The defend- 
 ants were common carriers, as alleged, and inserted in the Boston 
 Daily Advertiser, Post, and Courier, from the 15th day of August till 
 the 15th da}' of September an advertisement announcing the hours at 
 which trains would leave Boston for various places, and among others 
 that a train would leave for Lynn at 9.30 p. m., except Wednesdays, 
 when it would leave at 11.15, and Saturdays, when it would leave at 
 10.30. 
 
 The plaintiff, a resident of Nahant, consulted one of the above 
 papers, about the 9th of September, 1865, for the purpose of ascertain- 
 ing the time when the latest night train would start from Boston for 
 Lynn on the 15th, in order to take the train on that day, and saw the 
 advertisement referred to. On the 15th, which was on Friday, he 
 came to Boston from Lynn in a forenoon train, and in the evening, 
 shortly after nine o'clock, presented himself at the defendants' station 
 in Boston for the purpose of taking the 9.30 train for Lynn, having 
 with him a ticket which previously to September 9th he had purchased 
 in a package of five. This ticket specified no particular train, but pur- 
 ported to be good for one passage in the cars between Boston and 
 Lynn during the year 1865. He learned that this train had been post- 
 poned to 11.15, on account of an exhibition, and thereupon hired a 
 buggy and drove to Lynn, arriving there soon after 10.30. He had 
 seen no notice of any postponement of this train. He once, in 1864, 
 observed a notice of postponement, and heard that the defendants 
 sometimes postponed their late trains. 
 
 For several years before 1865 the defendants' superintendent had 
 been accustomed occasionally to postpone this train, as often as from 
 once to three times a month, for the purpose of allowing the public to 
 attend places of amusement and instruction, and also upon holidays 
 and other public occasions in Boston ; giving notice thereof by hand-
 
 182 SEARS V. EASTERN RAILROAD. 
 
 bills posted in the defendants' cars and stations. On the 13th of Sep- 
 tember, 1865, in pursuance of this custom, he decided to postpone this 
 train for September 15th till 11.15, and on the same da} - caused notice 
 thereof to be printed and posted in the usual manner. The train was 
 so postponed, and left Boston at 11.15, arriving at L}nn at 11.45. 
 
 The defendants offered to prove, if competent, that this usage of de- 
 taining the train was generally known to the people using the Eastern 
 Railroad, and that the number of persons general!}* going by the post- 
 poned train was larger than generally went by the 9.30 train, and was 
 larger on the evening in question ; but at the station in Boston there 
 were persons complaining of the postponement of the train, and leaving 
 the station. 
 
 It was agreed that, if on these facts the plaintiff was entitled to re- 
 cover, judgment should be entered in his favor for ten dollars, without 
 costs. Judgment was rendered for the defendants, and the plaintiff 
 appealed to this court. 
 
 J. L. Stackpole, for the plaintiff. 
 
 C. P. Judd, for the defendants. If the plaintiff can maintain any 
 action, it must be upon the count in contract. There was no proof of 
 deceit. Tryon v. Whitmarsh, 1 Met. 1. What then was the nature of 
 the contract between the parties? The ticket merely secured one pas- 
 sage at any time in 1865. This was a contract to carry the plaintiff in 
 the usual way of transporting passengers. It was usual to postpone 
 this train, in order to give the public greater accommodations. The 
 plaintiff was bound by this usage, whether he knew it or not. If he 
 neglected to inquire as to the custom, it is his own fault. Van Sant- 
 voord v. St. John, 6 Hill, 160; Cheney v. Boston & Maine Railroad, 
 11 Met. 121 ; Clark v. Baker, lb. 186*; City Bank v. Cutter, 3 Pick. 
 414; Ouimit v. Henshaw, 35 Vt. 616, 622. If the advertisement was 
 an offer to carry passengers at 9.30, this offer was withdrawn on the 
 13th by due notice. M'Culloch v. Eagle Ins. Co., 1 Pick. 278 ; Boston 
 & Maine Railroad v. Bartlett, 3 Cush. 227. The acquiescence in the 
 usage of the defendants by the public for years shows that the notice 
 was sufficient. The plaintiff should have made further inquiry. Booth 
 v. Barnum, 9 Conn. 290 ; Taylor v. Stibbert, 2 Ves. Jr. 437 ; Taylor v. 
 Baker, 5 Price, 306. 
 
 Chapman, J. If this action can be maintained, it must be for the 
 breach of the contract which the defendants made with the plaintiff. 
 He had purchased a package of tickets entitling him to a passage in 
 their cars for each ticket from Boston to Lynn. This constituted a 
 contract between the parties. Cheney v. Boston & Fall River Railroad, 
 11 Met. 121 ; Boston & Lowell Railroad v. Proctor, 1 Allen, 267; Najac 
 v. Boston & Lowell Railroad, 7 Allen, 329. The principal question in 
 "tliis case is, what are the terms of the contract? The ticket does not 
 express all of them. A public advertisement of the times when their 
 trains run enters into the contract, and forms a part of it. Denton v. 
 Great Northern Railway, 5 El. & Bl. 860. It is an offer which, when
 
 SEARS V. EASTERN RAILROAD. 133 
 
 once publicly made, becomes binding, if accepted before it is retracted. 
 Boston & Maine Railroad v. Bartlett, 3 Cush. 227. Advertisements 
 offering rewards are illustrations of this method of making contracts. 
 But it would be unreasonable to hold that advertisements as to the time 
 of running trains, when once made, are irrevocable. Railroad corpora- 
 tions find it necessary to vary the time of running their trains, and they 
 have a right, under reasonable limitations, to make this variation, even 
 as against those who have purchased tickets. This reserved right 
 enters into the contract, and forms a part of it. The defendants had 
 such a right in this case. 
 
 But if the time is varied, and the train fails to go at the appointed 
 time, for the mere convenience of the company or a portion of their ex- 
 pected passengers, a person who presents himself at the advertised 
 hour, and demands a passage, is not bound by the change unless he has 
 had reasonable notice of it. The defendants acted upon this view of 
 their duty, and gave certain notices. Their trains had been advertised 
 to go from Boston to Lynn at 9.30 p. m., and the plaintiff presented 
 himself, with his ticket, at the station to take the train ; but was there 
 informed that it was postponed to 11.15. The postponement had been 
 made for the accommodation of passengers who desired to remain in 
 Boston to attend places of amusement. Certain notices of the change 
 had been given ; but none of them had reached the plaintiff. The}* 
 were printed handbills posted up'in the cars and stations on the day of 
 the change, and also a day or two before. Though he rode in one of 
 the morning cars from Lynn to Boston, he did not see the notice, and 
 no legal presumption of notice to him arises from the fact of its being 
 posted up. Brown v. Eastern Railroad, 11 Cush. 101 ; Malone v. 
 Boston & Worcester Railroad, 12 Gray, 388. The defendants pub- 
 lished daily advertisements of their regular trains in the Boston Daily 
 Advertiser, Post, and Courier, and the plaintiff had obtained his 
 information as to the time of running from one of these papers. If 
 they had published a notice of the change in these papers, we think he 
 would have been bound by it. For as they had a right to make changes, 
 he would be bound to take reasonable pains to inform himself whether or 
 not a change was made. So if in their advertisement they had reserved 
 the right to make occasional changes in the time of running a particu- 
 lar train, he would have been bound by the reservation. It would have 
 bound all passengers who obtained their knowledge of the time-tables 
 from either of these sources. But it would be contrary to the elemen- 
 tary law of contracts to hold that persons who relied upon the adver- 
 tisements in either of those papers should be bound by a reservation of 
 the offer, which was, without their knowledge, posted up in the cars 
 and stations. If the defendants wished to free themselves from their 
 obligations to the whole public to run a train as advertised, they should 
 publish notice of the change as extensively as they published notice of 
 the regular trains. And as to the plaintiff, he was not bound by a 
 notice published in the cars and stations which he did not see. If it
 
 184 BASTARD V. BASTARD. 
 
 had been published in the newspapers above mentioned, where his in- 
 formation had in fact been obtained, and he had neglected to look for 
 it, the fault would have been his own. 
 
 The evidence as to the former usage of the defendants to make occa- 
 sional changes was immaterial, because the advertisement was an ex- 
 press stipulation which superseded all customs that were inconsistent 
 with it. An express contract cannot be controlled or varied b}* usage. 
 Ware v. Hayward Rubber Co., 3 Allen, 84. 
 
 The court are of opinion that the defendants, by failing to give such 
 notice of the change made by them in the time of running their train on 
 the evening referred to as the plaintiff was entitled to receive, violated 
 their contract with him, and are liable in this action. 
 
 Judgment for the plaintiff} 
 
 Section II. Compensation. 
 
 BASTARD v. BASTARD. 
 
 King's Bench, 1679. 
 
 [2 Shower, 81.] 
 
 Case against the defendant as a common carrier, for a box delivered 
 to him to be carried to B., and lost by negligence. 
 
 Williams moved in arrest of judgment, because there was no partic- 
 ular sum mentioned to be paid or promised for hire, but onby pro me?'- 
 cede rationabili. 
 
 Resolved well enough, and judgment given for the plaintiff; for 
 perhaps there was no particular agreement, and then the carrier might 
 have a quantum, meruit for his hire, and he is therefore chargeable for 
 the loss of the goods in the one case as the other. 
 
 FITCHBURG RAILROAD v. GAGE. 
 
 Supreme Judicial Court of Massachusetts, 1859. 
 
 [12 Gray, 393.] 
 
 Action of contract upon an account annexed against Gage, Hit- 
 tinger, & Company for the transportation of ice from Fresh and Spy 
 Ponds to Charlestown, over that portion of the plaintiff's railroad which 
 was formerly the Charlestown Branch Railroad, and from Groton to 
 Charlestown over that portion which has always been known as the 
 Fitchburg Railroad. The case was referred to an auditor, to whose 
 
 1 See Denton v. Great Northern Ey., 5 E. & B. 860. — Ed.
 
 FITCHBURG RAILROAD V. GAGE. 185 
 
 report the defendants took exceptions presenting pure questions of law, 
 and was thereupon reserved by Biyelow, J., for the consideration of the 
 whole court, and is stated in the opinion. 
 
 /S. Bartlett & D. Thaxter, for the defendants. 
 
 R. Choate & If. C. Ilutchins, for the plaintiffs. 
 
 Merrick, J. This action is brought to recover the balance of the 
 account annexed to the writ. The defendants admit the transportation 
 for them of all the ice charged to them in the account, and that the sev- 
 eral items contained in it relative to the service performed for them are 
 correct. But they insist that the rate of compensation claimed is too 
 large, and that the charges ought to be reduced. They have also filed 
 an account in set-off, claiming to recover back the amount of an alleged 
 overpayment made by them for similar services in the transportation of 
 other quantities of ice belonging to them. 
 
 Their claim to be entitled to a diminution in the amount of charges 
 in the plaintiffs' account, and to a recovery of the sum stated in their 
 account in set-off, both rest upon the same ground. The)' contended 
 and offered to prove at the hearing before the auditor, that while the 
 plaintiffs were transporting the ice they were at the same time hauling 
 over the same portion of their road various quantities of bricks for other 
 parties ; that ice and bricks were of the same class of freight, and that 
 ice was as low a class of freight as bricks in regard to the risk and 
 hazard of transportation ; and that while the)- charged the defendants 
 fifty cents per ton for the transportation of ice, they charged other par- 
 ties only twenty cents per ton for a like service in reference to bricks. 
 
 The defendants contended that they were entitled to maintain their 
 claim upon two grounds : first, under the provisions in the plaintiffs' 
 act of incorporation ; and, secondly, upon the general principle that as 
 common carriers they were bound and required to transport every species 
 of freight of the same class for any and all parties at the same rate of 
 compensation ; and that they had therefore no right to charge any greater 
 sum for the transportation of ice than that for which they had actually 
 carried bricks for other parties. Neither of the claims was sustained by 
 the auditor, and he accordingly rejected the evidence offered in support 
 of them. In botli particulars we think his ruling was correct. 1 
 
 It is contended on behalf of the defendants that the plaintiffs were 
 common carriers ; and that by the principles of the common law they 
 are in that relation required to carry merchandise and other goods or 
 chattels of the same class at equal rates for the public and for each in 
 dividual on whose account service in this line of business is performed. 
 There is no doubt they are common carriers. That is fully established. 
 Thomas v. Boston & Providence Railroad, 10 Met. 472. Norway, 
 Plains Co. v. Boston & Maine Railroad, 1 Gray, 263. But by the law 
 of this Commonwealth every railroad corporation is authorized to estab- 
 lish for their sole benefit a toll upon all passengers and property 
 conveyed or transported on their railroad, at such rates as may be de- 
 
 1 The decision upon the first ground is omitted. — Ed.
 
 V 
 
 186 FITCHBURG RAILROAD V. GAGE. 
 
 termined by the directors. Kev. Sts. c. 39, § 83. This right however 
 is very fully, and reasonably, subjected to legislative supervision and 
 control ; a provision which may be believed to be sufficient to guard 
 this large conceded power against all injustice or abuse. And in view 
 of this large and unqualified, and therefore adequate supervision, the 
 right of railroad corporations to exact compensation for services ren- 
 dered ma} - be considered as conforming substantiall}' to the rule of the 
 common law upon the same subject. This rule is clearly stated by 
 Lawrence, J., in the case of Harris v. Packwood, 3 Taunt. 272: "I 
 would not, however, have it understood that carriers are at liberty bj* 
 law to charge whatever they please ; a carrier is liable by law to carry 
 everything which is brought to him, for a reasonable sum to be paid to 
 him for the same carriage ; and not to extort what he will." This is 
 the doctrine of the common law. 2 Kent Com. (6th ed.) 599. Angell 
 on Carriers, § 124. And it supplies substantially the same rule which 
 is recognized and established in this Commonwealth by the provisions of 
 St. 1845, c. 191. The recent English cases, cited by the counsel for 
 the defendants, are chiefly commentaries upon the special legislation of 
 Parliament regulating the transportation of freight on railroads con- 
 structed under the authority of the government there ; and consequently 
 throw very little light upon questions concerning the general rights and 
 duties of common carriers, and are for that reason not to be regarded 
 as authoritative expositions of the common law upon those subjects. 
 The principle derived from that source is very plain and simple. It 
 requires equal justice to all. But the equality which is to be observed 
 in relation to the public and to every individual consists in the re- 
 stricted right to charge, in each particular case of service, a reasonable 
 compensation, and no more. If the carrier confines himself to this, no 
 wrong can be done, and no cause afforded for complaint. If, for special 
 reasons, in isolated cases, the carrier sees fit to stipulate for the car- 
 riage of goods or merchandise of an} - class for individuals for a certain 
 time or in certain quantities for less compensation than what is the 
 usual, necessary, and reasonable rate, he may undoubtedly do so with- 
 out thereby entitling all other persons and parties to the same advantage 
 and relief. It could of course make no difference whether such a con- 
 cession was in relation to articles of the same kind or belonging to the 
 same general class as to risk and cost of transportation. The defend- 
 ants do not deny that the charge made on them for the transportation 
 of their ice was according to the rates established bv the directors of 
 the company, or assert that the compensation claimed is in any degree 
 excessive or unreasonable. Certain h" then the charges of the plaintiffs 
 should be considered legal as well as just ; nor can the defendants have 
 any real or equitable right to insist upon any abatement or deduction, 
 because for special reasons, which are not known and cannot therefore 
 be appreciated, allowances may have been conceded in particular in- 
 stances, or in reference to a particular series of services, to other 
 parties.
 
 MESSENGER V. PENNSYLVANIA RAILROAD CO. 187 
 
 There remains another question, the determination of which depends 
 upon other and different considerations. The auditor, for the purpose 
 of presenting the question to the determination of the court, rejected 
 evidence offered by the defendants tending to prove that prior to the 
 22d of February, 1855, and down to that time, the plaintiffs had trans- 
 ported for them large quantities of ice from Groton at a much less rate 
 of compensation than the amount charged in their account under date 
 of the 31st January of that year, without having given them notice, and 
 without their knowledge, of an} - intention to increase the charge for 
 such service. This evidence was rejected, for the reason that the direc- 
 tors of the plaintiff corporation had, prior to the transportation of the 
 ice in the last named item, fixed and raised the rate of transportation of 
 ice on their road from Groton to ninety cents per ton. This evidence 
 ought to have been received. In the absence of any special contract be- 
 tween the parties, it had a tendency to show what was the understand- 
 ing between the parties on the subject, and what the defendants had a 
 right to consider would be the price to be charged to them for services 
 performed in their behalf. If not controlled, it would and ought to 
 have had a material effect upon determining the question concerning 
 the compensation which the plaintiffs were entitled to recover. It might 
 have been controlled either by showing that the defendants did in fact 
 have notice of the new rate of charge established by the directors of the 
 company, or that the notice was communicated generally to all persons, 
 in the usual and ordinary manner, and with such degree of publicity that 
 all persons dealing with them might fairly be presumed to have cog- 
 nizance of the change. 
 
 In this particular therefore the exception to the ruling of the auditor 
 must be sustained ; in all others, the exceptions taken to his decisions 
 are overruled. 
 
 The case must therefore be recommitted to the auditor for the pur- 
 pose of hearing the evidence rejected, and any other proofs which the 
 parties may respectively produce relative to the items of charge under 
 date of January 31st, and finding the amount which is due for the ser- 
 vices there stated ; but for no other purpose whatever. 
 
 Exceptions sustained. 
 
 MESSENGER v. PENNSYLVANIA RAILROAD COMPANY. 
 
 Supreme Court of New Jersey, 1873. 
 Court of Errors and Appeals of New Jkrsey, 1871. 
 
 [7 Vroom (36 N. J. L.), 407 , 8 Vroom (37 N. J. L ), 531.] 
 
 Beasley, C. J. The Pennsylvania Railroad Company, who are the 
 defendants in this action, agreed with the plaintiffs to carry certain 
 merchandise for them, between certain termini, at a fixed rate less than 
 they should cany between the same points for any other person. The 
 allegation is, that goods have been carried for other parties at a certain
 
 188 MESSENGER V. PENNSYLVANIA RAILEOAD CO. 
 
 rate below what the goods of the plaintiffs have been carried, and this 
 suit is to enforce the foregoing stipulation. The question is, whether 
 the agreement thus forming the foundation of the suit is legal. 
 
 There can be no doubt that an agreement of this kind is calculated to 
 give an important advantage to one dealer over other dealers, and it is 
 equally clear that, if the power to make the present engagement exists, 
 many brauches of business are at the mercy of these companies. A 
 merchant who can transport his wares to market at a less cost than his 
 rivals, will soon acquire, by underselling them, a practical monopoly of 
 the business ; and it is obvious, that this result can often be brought 
 about if the rule is, as the plaintiffs contend that it is, that these 
 bargains giving preferences can be made. A railroad is not, in 
 general, subject to much competition in the business between its 
 termini ; the difficult}- in getting a charter, and the immense ex- 
 pense in building and equipping a road, leaves it, in the main, 
 without a rival in the field of its operation ; and the consequence 
 is, the trader who can transmit his merchandise over it on terms more 
 favorable than others can obtain is in a fair wa}- of ruling the market. 
 The tendency of such compacts is adverse to the public welfare, which 
 is materially dependent on commercial competition and the absence of 
 monopolies. Consequently, the inquiry is of moment, whether such 
 compacts may be made. I have examined the cases, and none that I 
 have seen is, in all respects, in point, so that the problem is to be solved 
 by a recurrence to the general principles of the law. 
 
 The defendants are common carriers, and it is contended that bailees 
 of that character cannot give a preference in the exercise of their call- 
 ing to one dealer over another. It cannot be denied, that at the com- 
 mon law, eveiy person, under identical conditions, had an equal right to 
 the services of their commercial agents. It was one of the primary 
 obligations of the common carrier to receive and cany all goods offered 
 for transportation, upon receiving a reasonable hire. If he refused the 
 offer of such goods, he was liable to an action, unless he could show a 
 reasonable ground for his refusal. Thus, in the very foundation and 
 substance of the business, there was inherent a rule which excluded a 
 preference of one consignor of goods over another. The duty to receive 
 and cany was due to every member of the community, and in an equal 
 measure to each. Nothing can be clearer than that, under the preva- 
 lence of this principle, a common carrier could not agree to carry one 
 man's goods in preference to those of another. 
 
 It is important to remark, that this obligation of this class of bailees 
 is always said to arise out of the character of the business. Sir William 
 Jones, importing the expression from the older reports, declares that 
 this, as well as the other peculiar responsibilities of the common carrier, 
 is founded in the consideration that the calling is a public employment. 
 Indeed, the compulsion to serve all that apply could be justified in no 
 other way, as the right to accept or reject an offer of business is neces- 
 sarily incident to all private traffic.
 
 MESSENGER V. PENNSYLVANIA RAILROAD CO. 189 
 
 Recognizing this as the settled doctrine, I am not able to see how it 
 can be admissible for a common carrier to demand a different hire from 
 various persons for an identical kind of service, under identical condi- 
 tions. Such partiality is legitimate in private business, but how can it 
 square with the obligations of a public employment? A person having 
 a public duty to discharge, is undoubtedly bound to exercise such ollice 
 for the equal benefit of all, and therefore to permit the common carrier 
 to charge various prices, according to the person with whom he deals, 
 for the same services, is to forget that he owes a duty to the community. 
 If he exacts different rates for the carriage of goods of the same kind, 
 between the same points, he violates, as plainly, though it may be not 
 in the same degree, the principle of public policy which, in his own de- 
 spite, converts his business into a public employment. The law that 
 forbids him to make any discrimination in favor of the goods of A over 
 the goods of B, when the goods of both are tendered for carriage, must, 
 it seems to me, necessarily forbid any discrimination with respect to the 
 rate of pay for the carriage. I can see no reason why, under legal 
 rules, perfect equality to all persons should be exacted in the dealings 
 of the common carrier, except with regard to the amount of compensa- 
 tion for his services. The rules that the carrier shall receive all the 
 goods tendered loses half its value, as a politic regulation, if the cost 
 of transportation can be graduated by special agreement so as to favor 
 one party at the expense of others. Nor would this defect in the law, 
 if it existed, be remedied by the principle which compels the carrier to 
 take a reasonable hire for his labor, because, if the rate charged by him 
 to one person might be deemed reasonable, by charging a lesser price 
 to another for similar services, he disturbs that equality of rights among 
 his employers which it is the endeavor of the law to effect. Indeed, 
 when a charge is made to one person, and a lesser charge, for precisely 
 the same offices, to another, I think it should be held that the higher 
 charge is not reasonable; a presumption which would cut up by the 
 roots the present agreement, as, by the operation of this rule, it would 
 be a promise founded on the supposition that some other person is to 
 be charged more than the law warrants. 
 
 From these considerations, it seems to me, that testing the duties of 
 this class of bailees by the standard of the ancient principles of the law, 
 the agreement now under examination cannot be sanctioned. This is 
 the sense in which Mr. Smith understands the common law rule. In 
 his Leading Cases, p. 174, speaking of the liabilities of carriers, he says : 
 " The hire charged must be no more than a reasonable remuneration 
 to the carrier, and, consequently, not more to one (though a rival car- 
 rier) than to another, for the same service." I am aware, that in the 
 case of Baxendale v. The Eastern Counties Railway, 4 C. B. (N. S.) 
 81, this definition of the common law rule was criticised by one of the 
 judges, but the subject was not important in that case, anil was not 
 discussed, and the expression of opinion with respect to it was entirely 
 cursory. Indeed, the whole question has become of no moment in the
 
 190 MESSENGEE V. PENNSYLVANIA RAILROAD CO. 
 
 English law, as the subject is specifically regulated by the statute 17 
 and 18 Vict., ch. 31, which prohibits the giving " of any undue or un- 
 reasonable preference or advantage to or in favor of any particular per- 
 son or company, or any particular description of traffic, in any respect 
 whatsoever." The date of this act is 1854, and since that time the 
 decisions of the courts of Westminster have, when discussing this class 
 of the responsibilities of common carriers, been devoted to its exposi- 
 tion. But the courts of Pennsylvania have repeatedly declared that 
 this act was but declaratory of the doctrine of the common law. This 
 was so held in the case of Sandford v. The Catawissa, WilHamsport, & 
 Erie Railroad Co., 24 Penn. 37«, in which an agreement by a railway 
 compan} to give an express company the exclusive right to carry goods 
 in certain trains was pronounced to be illegal. In a more recent de- 
 cision, Mr. Justice Strong refers to this case with approval, and says 
 that the special provisions which are sometimes inserted in railroad 
 charters, in restraint of undue preferences, are " but declaratory of 
 what the common law now is." This is the view which, for the reasons 
 ahead}' given, I deem correct. 
 
 But even if this result could not be reached by fair induction from the 
 ancient principles which regulate the relationship between this class of 
 bailees and their employers, I should still be of opinion that we would 
 be necessaril}* led to it by another consideration. 
 
 I have insisted that a common carrier was to be regarded, to some 
 extent at least, as clothed with a public capacity, and 1 now maintain, 
 that even if this theory should be rejected, and thrown out of the argu- 
 ment, still the defendants must be considered as invested with that at- 
 tribute. In my opinion, a railroad company, constituted under statutory 
 authorit}-, is not only, by force of its inherent nature, a common carrier, 
 as was held in the case of Palmer v. Grand Junction Railway, 4 M. & 
 W. 749, but it becomes an agent of the public in consequence of the 
 powers conferred upon it. A company of this kind is invested with 
 important prerogative franchises, among which are the rights to build 
 and use a railway, and to charge and take tolls and fares. These pre- 
 rogatives are grants from the government, and public utility is the con- 
 sideration for them. Although in the hands of a private corporation, 
 they are still sovereign franchises, and must be used and treated as 
 such ; they must be held in trust for the general good. If they had 
 remained under the control of the state, it could not be pretended, that 
 in the exercise of them it would have been legitimate to favor one citi- 
 zen at the expense of another. If a state should build and operate a 
 railroad, the exclusion of everything like favoritism with respect to its use 
 would seem to be an obligation that could not be -disregarded without 
 violating natural equity and fundamental principles. And it seems to 
 me impossible to concede, that when such rights as these are handed 
 over, on public considerations, to a company of individuals, such rights 
 lose their essential characteristics. I think they are, unalterably, parts 
 of the supreme authority, and in whatsoever hands they may be found,
 
 MESSENGER V. PENNSYLVANIA RAILROAD CO. 191 
 
 they must be considered as such. In the use of such franchises, all citi- 
 zens have an equal interest and equal rights, and all must, under the same 
 circumstances, be treated alike. It cannot be supposed that it was the 
 legislative intention, when such privileges were given, that they were to 
 be used as private property, at the discretion of the recipient, but. to 
 the contrary of this, I think an implied condition attaches to such 
 grants, that they are to be held as a quasi public trust for the benefit, 
 at least to a considerable degree, of the entire community. In their 
 very nature and constitution, as I view this question, these companies 
 become, in certain aspects, public agents, and the consequence is, the}' 
 must, in the exercise of their calling, observe to all men a perfect im- 
 partiality. On these grounds, the contract now in suit must be deemed 
 illegal in the very particular on which a recovery is sought. 
 
 The result is, the defendants must have judgment on the demurrer. 
 
 In tire Court of Errors and Appeals, on error to the Supreme Court, 
 the opinion of the Court was delivered by 
 
 Beule, J. 1 The business of the common carrier is for the public, and 
 it is his duty to serve the public indifferently. He is entitled to a rea- 
 sonable compensation, but on payment of that he is bound to carry for 
 whoever will employ him, to the extent of his ability. A private carrier 
 can make what contract he pleases. The public have no interest in 
 that, but a service for the public necessarily implies equal treatment in 
 its performance, when the right to the service is common. Because 
 the institution, so to speak, is public, every member of the community 
 stands on an equality as to the right to its benefit, and, therefore, the 
 carrier cannot discriminate between individuals for whom he will render 
 the service. In the very nature, then, of his duty and of the public 
 right, his conduct should be equal and just to all. So, also, there is 
 involved in the reasonableness of his compensation the same principle. 
 A want of uniformity in price for the same kind of service under like 
 circumstances is most unreasonable and unjust, when the right to demand 
 it is common. It would be strange if, when the object of the employ- 
 ment is the public benefit, and the law allows no discrimination as to 
 individual customers, but requires all to be accommodated alike as indi- 
 viduals, and for a reasonable rate, that by the indirect means of unequal 
 prices some could lawfully get the advantage of the accommodation and 
 others not. A direct refusal to carry for a reasonable rate would in- 
 volve the carrier in damages, and a refusal, in effect, could be accom- 
 plished by unfair and unequal charges, or if not to that extent, the 
 public right to the convenience and usefulness of the means of carriage 
 could be greatly impaired. Besides, the injur}' is not only to the indi- 
 vidual affected, but it reaches out, disturbing trade most seriously. 
 Competition in trade is encouraged by the law, and to allow any one to 
 use means established and intended for the public good, to promote un- 
 
 1 Part of the opinion is omitted. — Ed. 
 
 v
 
 192 MESSENGER V. PENNSYLVANIA RAILROAD CO. 
 
 fair advantages amongst the people and foster monopolies, is against 
 public policy, and should not be permitted. . . . 
 
 It must not be inferred that a common carrier, in adjusting his price, 
 cannot regard the peculiar circumstances of the particular transporta- 
 tion. Many considerations ma}- properly enter into the agreement for 
 carriage or the establishment of rates, such as the quantity carried, its 
 nature, risks, the expense of carriage at different periods of time, and 
 the like ; but he has no right to give an exclusive advantage or prefer- 
 ence, in that respect, to some over others, for carriage, in the course of 
 his business. For a like service, the public are entitled to a like price. 
 There ma}' be isolated exceptions to this rule, where the interest of the 
 immediate parties is alone involved, and not the rest of the public, but 
 the rule must be applied whenever the service of the carrier is sought 
 or agreed for in the range of business or trade. This contract being 
 clearly within it, and odious to the law in the respect on which a recovery 
 is sought, cannot be sustained. But there is an additional ground upon 
 which it is also objectionable. I entirely agree with the Chief Justice, 
 that, in the grant of a franchise of building and using a public railway, 
 that there is an implied condition that it is held as a quasi public trust, 
 for the benefit of all the public, and that the company possessed of the 
 grant must exercise a perfect impartiality to all who seek the benefit of 
 the trust. It is true that these railroad corporations are private, and, 
 in the nature of their business, are subject to and bound by the doc- 
 trine of common carriers, yet, beyond that, and in a peculiar sense, they 
 are intrusted with certain functions of the government, in order to 
 afford the public necessary means of transportation. The bestowment 
 of these franchises is justified only on the ground of the public good, 
 and they must be held and enjoyed for that end. This public good is 
 common, and unequal and unjust favors are entirely inconsistent with 
 the common right. So far as their duty to serve the public is concerned, 
 they are not only common carriers, but public agents, and in their very 
 constitution and relation to the public, there is necessarily implied a 
 duty on their part, and a right in the public, to have fair treatment and 
 immunity from unjust discrimination. The right of the public is equal 
 in every citizen, and the trust must be performed so as to secure and 
 protect it. 
 
 Every trust should be administered so as to afford to the cestui que 
 trust the enjoyment of the use intended, and these railroad trustees 
 must be held, in their relation to the public, to such a course of dealing 
 as will insure to every member of the community the equal enjoyment 
 of the means of transportation provided, subject, of course, to their 
 reasonable ability to perform the trust. In no other way can trade and 
 commercial interchange be left free from unjust interference. On this 
 latter ground, that part of the contract in question is illegal. 
 
 The judgment of the Supreme Court must be affirmed. 1 
 
 1 See ace. Scofield v. Lake Shore A M. S. R. R., 43 Ohio St. 571. In this case 
 Athi:rton, J., said : " I think that all the cases that have been referred to might be
 
 318* TONS OF COAL. 193 
 
 318.V TONS OF COAL. 
 
 District Court of the United States (Conn.), 1877. 
 Circuit Court of the United States, 1878. 
 
 [14 Blatch. 453.] ! 
 
 Libel in rem for freight and demurrage. 
 
 The libellants carried a cargo of coal to New Haven, to be delivered 
 to the Glasgow Co. at the Canal Railroad Dock. The consignee was 
 located near the line of the railroad in Massachusetts. It was the 
 custom of the port for coal, thus consigned to a railroad wharf, to be 
 shovelled from the hold of the vessel into large buckets, let down and 
 hauled up by a steam derrick, which discharged them into the cars of 
 the railroad. Prior to 1871, the shovellers who filled the buckets had 
 been hired and paid by the master of the vessel. In that year the Canal 
 Railroad Co. made a rule that it would thereafter supply all coal vessels 
 with shovellers, at ten cents a ton, and that no vessel could discharge 
 except by using shovellers thus supplied. Ten cents a ton was then 
 the ordinary rate of wages for such services, but in 1876 charges of 
 shovellers fell, and they could be hired for eight cents. The libellants 
 thereupon hired shovellers at eight cents, and refused to receive those 
 furnished b}' the company, unless they would work at the same rate. 
 The company for this cause refused to allow the cargo to be unloaded, 
 and it was discharged at a neighboring wharf, after some delay, and 
 there libelled. 
 
 Shipman, J. If the rule is valid and reasonable, there was no de- 
 livery of the coal. If the rule is invalid or unreasonable, there was a 
 deliveiy, or its equivalent, an offer and tender of delivery to the person 
 entitled to receive the coal, at the usual and reasonable time and place, 
 and in the reasonable manner of delivery, and a refusal to accept on 
 the part of the railroad company. In the latter event, the contract of 
 affreightment was complied with by the libellants, and freight was 
 earned. No question was made as to the liability of the defendants 
 under the bill of lading, for freight, in case the railroad company im- 
 properly refused to receive the coal. The bill of lading required de- 
 livery to the defendants at the Canal Dock. It is admitted that the 
 company, upon notification that the coal was ready to be discharged, 
 
 harmonized by observing the distinction so often alluded to, that is to say that as 
 between a consignor and the common carrier, where no other reason intervenes to 
 engraft an exception on the rule, all the consignor can demand of the common carrier 
 is, that his goods shall be carried at a reasonable rate, not necessarily at an equal rate 
 with all others. But when the reduced rate is either intended to or has a natural 
 tendency to injure the plaintiff in his business and destroy his trade, then a necessary 
 exception is engrafted on the more general rule, and the plaintiff has then the right 
 to insist that rates to all be made the same for goods shipped ' under like circum- 
 stances.' " — Ed. 
 
 1 The statement of facts is taken from the report of the same case, 4 Law & Equity 
 Reporter, 105, and part of the opinion of Shipjian, J., is omitted. — Ed. 
 
 13
 
 194 318J TONS OF COAL. 
 
 replied that said cargo might be forthwith discharged, and would he 
 received by it for the defendants. 
 
 The railroad company is not merely an owner of a private wharf, 
 having restricted duties to perform towards the public. Such a wharf 
 owner may properly construct his wharf for particular kinds of business, 
 and may make rules to limit and to restrict the manner in which his 
 property shall be used ; (Croucher v. Wilder, 98 Mass. 322 ;) but the 
 railroad company is a common carrier, and its wharf, occupied b} r rail- 
 road tracks, is the place provided by itself for the reception of goods 
 which must be received and transported, in order to comply with its 
 public obligations. The coal was to be received from the vessel by the 
 railroad company, as the carrier next in line, and thence carried to its 
 place of destination. The question which is at issue between the par- 
 ties depends upon the power of a common carrier to establish rules 
 which shall prescribe by what particular persons goods shall be deliv- 
 ered to him for transportation. "Common carriers undertake generally, 
 and not as a casual occupation, and for all people indifferently, to con- 
 vey goods and deliver them at a place appointed, for hire, as a business, 
 and with or without a special agreement as to price. . . . As they hold 
 themselves to the world as common carriers for a reasonable compen- 
 sation, they assume to do, and are bound to do, what is required of 
 them in the course of their employment, if they have the requisite con- 
 venience to carry, and are offered a reasonable or customary price ; 
 and, if they refuse, without some just ground, the}' are liable to an 
 action." (2 Kent's Comm. 599.) A common carrier is under an obli- 
 gation to accept, within reasonable limits, ordinary goods which may 
 be tendered to him for carriage at reasonable times, for which he has 
 accommodation. (Crouch v. L. & N. W. Railway Co., 14 C. B. 255.) 
 The carrier cannot generally discriminate between persons who tender 
 freight, and exclude a particular class of customers. The railroad 
 company could not establish the rule that it would receive coal only 
 from certain barge owners, or from a particular class of barge captains. 
 It carries " for all people indifferently." But, while admitting this 
 duty, the compan}' has declared that, for the convenience of the public, 
 and in order to transport coal more expeditiously, and to avoid delays, 
 it will receive such coal only, from barges at its wharf, as shall be de- 
 livered through the agency of laborers selected b\* the company. This 
 rule is a restriction upon its common law obligation. The carrier, on 
 its part, is bound to receive goods from all persons alike. The duty 
 and the labor of delivery to the carrier is imposed upon the barge 
 owner, who pays for the necessary labor. The service, so far as the 
 shovelling is concerned, is performed, not upon the property of the 
 railroad company, but upon the deck of the vessel. The compan} r is 
 virtually saying to the barge owner, You shall employ upon j T our own 
 property, in the service which 3*ou are hound to render, and for which 
 you must pay, onl}- the laborers whom we designate, and, though our 
 .general. duty is to. receive all ordinary goods delivered at reasonable
 
 318-i TONS OF COAL. 195 
 
 times, we will receive only those goods which may be handled by per- 
 sons of our selection. The law relating to carriers has not \ et permitted 
 them to impose such limitations upon the reception or acceptance of 
 goods. The carrier may properly impose reasonable restrictions in re- 
 gard to the persons by whom he shall deliver goods to the consignee 
 or the carrier next in line. The delivery of goods is the duty of the 
 carrier, for which he is responsible, and should be in his own control. 
 (Beadell v. Eastern Counties R. Co., 2 C. B. N. S. 509.) It would not 
 be contended that the railroad company could designate the crew 14)011 
 the barge, or could select the barge captains, and I am of opinion that 
 it has no more authority over the selection of the other employees of 
 the barge owners. The fact that the barge owners are using, for a 
 compensation, the derricks and tubs of the railroad company, is not 
 material. The berths under the derricks have been designated by the 
 company, as proper places where coal is to be received, and. under 
 reasonable circumstances as to time, and freedom from interference 
 with prior occupants, the incoming barges property occupy such posi- 
 tions. Delivery is impracticable at the places designated by the 
 company for delivery, without the use of the railroad company's 
 machinery. 
 
 It is true, that, under this rule, the delivery of coal into the cars of 
 the railroad company has been more expeditiously performed, and has 
 been attended with fewer delays than formerly, and that the rule has 
 been a convenience to the consignees, but the convenience of the prac- 
 tice is not, of itself, an adequate reason for compelling its enforcement, 
 if it interferes with the legal rights of others. I am not prepared to 
 sa}', that, for the orderly management of an extensive through freight- 
 ing business by means of connecting lines, and for the systematic and 
 efficient transportation of immense quantities of goods, it may not 
 hereafter be found a necessity that one or the other of the connecting 
 lines shall be furnished with the power which is now sought by the rail- 
 road company ; but, in the present condition of the coal traffic at the 
 port of New Haven, this necessity does not exist. The power is a 
 convenience to the railroad company. It is not a necessity for the 
 transaction of business. 
 
 It is not necessary to consider the inconveniences which may flow 
 from the rule, but the case discloses one practical inconvenience which 
 may arise. The rule presupposes that the same price is to be charged 
 b} - the employees furnished bj T the railroad company, which is gener- 
 alty paid by others for the same service. When prices are unvarying, 
 no serious trouble results. There is no alternative, however, for the 
 barge owners, but to pa}' the price which the railroad company declares 
 to be the general price, or else submit to a refusal on the part of the 
 railroad company to accept the coal. The barge captain may be able 
 to obtain the service at a reduced rate, as he could have done in this 
 case, but he must pay his own employees the regular tariff which the 
 company has established, and then have the question of rates deter-
 
 196 318J TONS OF COAL. 
 
 mined by litigation. The result would be, that annoying litigation or 
 vexatious altercations would ensue. If the barge owners are to make 
 the payment, they should have an opportunity to make their own con- 
 tracts, and to take advantage of changes in the price of labor. 
 
 As matter of law, it is held that the rule is invalid, and that a valid 
 delivery was made of the coal, whereby freight was earned in accord- 
 ance with the terms of the contract. " Damages in the nature of 
 demurrage are recoverable for detention beyond a reasonable time, in 
 unloading only, and where there is no express stipulation to pay 
 demurrage." (Wordin v. Bemis, 32 Conn. 268.) 
 
 The libellants are entitled to a decree for the freight at the rate 
 mentioned in the bill of lading, less $19.55, the amount paid, to wit, the 
 sum of $171.55, and for damages in the nature of demurrage, for a 
 detention for six days, being $114.66. 
 
 The claimants appealed. 
 
 Simeon JE. Baldwin and William K. Townsend, for the libellants. 
 
 Johnson T. Piatt, for the claimants. 
 
 Blatchford, J. The decision of this case in the District Court was 
 placed upon the ground that the New Haven and Northampton Com 
 pan}', as a common carrier, had no right to impose on the canal-boat 
 the requirement that it should, as a condition of the right to place the 
 coal in the tubs of the company, attached to the company's derrick, 
 employ, to place it there, shovellers designated by the company, and 
 pa} r such shovellers the rate of compensation fixed by the company for 
 such service. It is contended, in this court, by the claimants, that the 
 District Court ignored the status of the company as a wharf owner ; 
 that the company, as the owner of the wharf, had the right to make 
 reasonable rules in regard to the use of the wharf; that the company 
 had a right, by statute, to exact seven cents per ton for coal discharged 
 at its wharf, as wharfage ; that the libellants' boat was not charged 
 any such wharfage ; that the use by the boat of the facilities provided 
 by the company, in the way of derricks, hoisting engines, etc., is the 
 use of the wharf; that all which the company did was to refuse to 
 allow the boat to use those facilities, and thus use the wharf, unless it 
 would permit the coal to be shovelled into the tubs by men designated 
 by the company ; and that this was only a reasonable regulation made 
 by the company, as a wharf owner. The difficulty with this view of the 
 case is, that the regulation was not sought to be enforced, in fact, as a 
 regulation of wharfage, or of the use of the wharf bv the boat. There 
 was no charge made against the boat for the privilege of making fast 
 to the wharf; and, if any payment was to be made for the use of the 
 wharf, by depositing the coal on the wharf, it was to be made by the 
 claimants, who were the owners of the coal and the employers of 
 the company. According to the well understood acceptation of a bill of 
 lading such as the one in question here, where the coal was deliverable 
 "• to Glasgow Co., Canal Dock, New Haven," — the Glasgow Company 
 being a mill owner at a place on the line of the railroad company, and
 
 HAYS V. THE PENNSYLVANIA COMPANY. 197 
 
 the latter company being the owner of tbe Canal Dock at New Haven, 
 with its tracks running to and on the dock, and having derricks and 
 engines for hoisting the coal in tubs from the deck of the boat to tbe 
 cars on the tracks, — tbe coal was delivered by the boat into the tubs, 
 and the boat paid the company so much per ton for hoisting the coal 
 and clumping it into the cars. The boat had nothing to do with paving 
 anything for the use or occupation of the wharf by the coal, and it paid 
 separately for the hoisting. If the company had a right to charge the 
 boat for tying up to, and using the spiles on, the wharf, no such charge 
 was made. There was, therefore, no foundation for the requirement as 
 to the shovellers, in any relation between the company as a wharf owner 
 and the boat. 
 
 The imposition of the requirement by the claimants' agent, as a 
 common carrier, was not a reasonable one. In regard to this I concur 
 entirely with the views of the District Judge, in his decision in the 
 court below. He found that the regulation was not a necessary one. 
 If it had been necessary and indispensable, it would have been reason- 
 able. It might, indeed, have been reasonable without being necessary. 
 But, to be reasonable, it mus be reasonable as respects both parties. 
 In the present case, the effect of the requirement was to impose on the 
 boat an unnecessary expense of two cents per ton of coal, for shovelling 
 into the tubs. 
 
 There must be a decree for the libellants, in affirmance of the decree 
 below, with costs. 
 
 HAYS v. THE PENNSYLVANIA COMPANY. 
 
 Circuit Court of the United States, N. Ohio, 1882. 
 
 [12 Fed. 309.] 
 
 Baxter, C. J. The plaintiffs were, for several years next before the 
 commencement of this suit, engaged in mining coal at Salineville and 
 near defendant's road, for sale in the Cleveland market. The}" were 
 wholly dependent on the defendant for transportation. Their com- 
 plaint is that the defendant discriminated against them, and in favor 
 of their competitors in business, in the rates charged for carrying coal 
 from Salineville to Cleveland. But the defendant traversed this allega- 
 tion. The issue thus made was tried at the last term of the court, 
 when it appeared in evidence that defendant's regular price for car- 
 rying coal between the points mentioned, in 1876, was $1.60 per ton, 
 with a rebate of from 30 to 70 cents per ton to all persons or com- 
 panies shipping 5,000 tons or more during the }'ear, — the amount of 
 rebate being graduated by the quantity of freight furnished by each 
 shipper. Under this schedule the plaintiffs were required to pay 
 higher rates on the coal shipped b}' them than were exacted from 
 other and rival parties who shipped larger quantities. But the defend-
 
 198 HAYS V. THE PENNSYLVANIA COMPANY. 
 
 ant contended, if the discrimination was made in good faith, and for 
 the purpose of stimulating production and increasing its tonnage, it 
 was both reasonable and just, and within the discretion confided by 
 law to every common carrier. The court, however, entertained the 
 contrary opinion, and instructed the jury that the discrimination com- 
 plained of and proven, as above stated, was contrary to law, and a 
 wrong to plaintiffs, for which they were entitled to recover the dam- 
 ages resulting to them therefrom, to wit, the amount paid by the 
 plaintiffs to the defendant for the transportation of their coal from 
 Salineville to Cleveland (with interest thereon) in excess of the rates 
 accorded by defendant to their most favored competitors. The jury, 
 under these instructions, found for the plaintiffs, and assessed their 
 damages at $4,585. The defendant thereupon moved for a new trial, 
 on the ground that the instructions given were erroneous, and this is 
 the question we are now called on to decide. If the instructions are 
 correct the defendant's motion must be overruled ; otherwise a new 
 trial ought to be granted. 
 
 A reference to recognized elementary principles will aid in a cor- 
 rect solution of the problem. The defendant is a common carrier by 
 rail. Its road, though owned by the corporation, was nevertheless 
 constructed for public uses, and is, in a qualified sense, a public 
 highwa}'. Hence everybody constituting a part of the public, for 
 whose benefit it was authorized, is entitled to an equal and impar- 
 tial participation in the use of the facilities it is capable of affording. 
 Its ownership by the corporation is in trust as well for the public as 
 for the shareholders ; but its first and primary obligation is to the 
 public. We need not recount all these obligations. It is enough for 
 present purposes to say that the defendant has no right to make 
 unreasonable and unjust discriminations. But what are such dis- 
 criminations? No rule can be formulated with sufficient flexibility 
 to appl}' to every case that may arise. It may, however, be said 
 that it is only when the discrimination enures to the undue advantage 
 of one man, in consequence of some injustice inflicted on another, that 
 the law intervenes for the protection of the latter. Harmless discrimi- 
 nation may be indulged in. For instance, the carrying of one person, 
 who is unable to pay fare, free, is no injustice to other passengers who 
 may be required to pa} T the reasonable and regular rates fixed by the 
 company. Nor would the carrying of supplies at nominal rates to 
 communities scourged by disease, or rendered destitute by floods or 
 other casualt}-, entitle other communities to have their supplies carried 
 at the same rate. It is the custom, we believe, for railroad companies 
 to carry fertilizers and machiner}- for mining and manufacturing pur- 
 poses to be employed along the lines of their respective roads to de- 
 velop the country and stimulate productions, as a means of insuring a 
 permanent increase of their business, at lower rates than are charged 
 on other classes of freight, because such discrimination, while it tends 
 to advance the interest of all, works no injustice to an}' one. Freight
 
 HAYS V. THE PENNSYLVANIA COMPANY. 199 
 
 carried over long distances may also be carried at a reasonably less rate 
 per mile than freight transported for shorter distances, simply because 
 it costs less to perform the service. For the same reason passengers 
 may be divided into different classes, and the price regulated in accord- 
 ance with the accommodations furnished to each, because it costs less 
 to carry an emigrant, with the accommodations furnished to that class, 
 than it does to cany an occupant of a palace car. And for a like reason' 
 an inferior class of freight may be carried at a less rate than first-class 
 merchandise of greater value and requiring more labor, care, and 
 responsibilit\' in the handling. It has been held that 20 separate par- 
 cels done up in one package, and consigned to the same person, may lie 
 carried at a less rate per parcel than 20 parcels of the same character 
 consigned to as many different persons at the same destination, because 
 it is supposed that it costs less to receive and deliver one package con- 
 taining 20 parcels to one man, than it does to receive and deliver 20 
 different parcels to as many different consignees. 
 
 Such are some of the numerous illustrations of the rule that mi<dit 
 be given. But neither of them is exactly like the case before us, either 
 in its facts or principles involved. The case of Nicholson v. G. W. R. Co., 
 4 C. B. (N. S.) 366, is in its facts more nearly like the case under con- 
 sideration than an} r other case that we have been able to find. This 
 ■was an application, under the railway and traffic act, for an injunction 
 to restrain the railroad company from giving lower rates to the Buabon 
 Coal Company than were given to the complainant in that case, in the 
 shipment of coal, in which it appeared that there was a contract be- 
 tween the railroad company and the Ruabon Coal Company, whereby 
 the coal company undertook to ship, for a period of 10 years, as much 
 coal for a distance of at least 100 miles over defendant's road as would 
 produce an annual gross revenue of £40,000 to the railroad company, 
 in fully loaded trains, at the rate of seven trains per week. In passing 
 on these facts the court said that in considering the question of undue 
 preference the fair interest of the railroad company ought to be taken 
 into the account ; that the preference or prejudice, referred to by the 
 statute, must be undue or unreasonable to be within the prohibition ; 
 and that, although it was manifest that the coal company had many 
 and important advantages in carrying their coal on the railroad as 
 against the complainant and other coal owners, still the question re- 
 mained, were they undue or unreasonable advantages? And this, the 
 court said, mainly depended on the adequacy of the consideration given 
 by the coal company to the railroad company for the advantages afforded 
 by the latter to the coal company. And because it appeared that the 
 cost of carrying coal in fully loaded trains, regularly furnished at the 
 rate of seven trains per week, was less per ton to the railwa}' compan\ r 
 than coal delivered in the usual way, and at irregular intervals, and in 
 unequal quantities, in connection with the coal company's undertaking 
 to ship annually coal enough over defendant's road, for at least a 
 distance of 100 miles, to produce a gross revenue to the railroad of
 
 200 HAYS V. THE PENNSYLVANIA COMPANY. 
 
 £40,000, the court held that the discrimination complained of in the 
 case was neither undue nor unreasonable, and therefore denied the 
 application. 
 
 This case seems to have been well considered, and we have no dis- 
 position to question its authority. Future experience may possibly 
 call for some modification of the principle therein announced. But 
 this case calls for no such modification, inasmuch as the facts of that 
 case are very different, when closely analyzed, from the facts proven 
 in this one. In the former the company, in whose favor the discrimi- 
 nation was made, gave, in the judgment of the court, an adequate con- 
 sideration for the advantages conceded to it under and in virtue of its 
 contract. It undertook to guaranty £40,000 worth of tonnage per year 
 for 10 years to the railroad company, and to tender the same for ship- 
 ment in fully loaded trains, at the rate of seven trains per week. It 
 was in consideration of these obligations — which, in the judgment of 
 the court, enabled the railroad company to perforin the service at less 
 expense — the court held that the advantages secured by the contract 
 to the coal compan}* were neither undue nor unreasonable. But there 
 are no such facts to be found in this case. There was in this case no 
 undertaking by an}* one to furnish any specific quantity of freight at 
 stated periods ; nor was any one bound to tender coal for shipment in 
 fully loaded trains. In these particulars the plaintiffs occupied com- 
 mon ground with the parties who obtained lower rates. Each tendered 
 coal for transportation in the same condition and at such times as suited 
 his or their convenience. The discrimination complained of rested ex- 
 clusively on the amount of freight supplied by the respective shippers 
 during the }*ear. Ought a discrimination resting exclusively on such a 
 Ijasis to be sustained? If so, then the business of the country is, in 
 some degree, subject to the will of railroad officials ; for, if one man 
 engaged in mining coal, and dependent on the same railroad for trans- 
 portation to the same market, can obtain transportation thereof at from 
 25 to 50 cents per ton less than another competing with him in business, 
 solely on the ground that he is able to furnish and does furnish the larger 
 quantity for shipment, the small operator will sooner or later be forced 
 to abandon the unequal contest and surrender to his more opulent rival. 
 If the principle is sound in its application to rival parties engaged in 
 mining coal, it is equally applicable to merchants, manufacturers, mil- 
 lers, dealers in lumber and grain, and to everybody else interested in 
 an}* business requiring any considerable amount of transportation by 
 rail ; and it follows that the success of all such enterprises would de- 
 pend as much on the favor of railroad officials as upon the energies 
 and capacities of the parties prosecuting the same. 
 
 It is not difficult, with such a ruling, to forecast the consequences. 
 The men who control railroads would be quick to appreciate the power 
 with which such a holding would invest them, and, it may be, not slow 
 to make the most of their opportunities, and perhaps tempted to favor 
 their friends to the detriment of their personal or political opponents ;
 
 MENACHO v. WARD. 201 
 
 or demand a division of the profits realized from such collateral pur- 
 suits as could be favored or depressed by discriminations for or against 
 them ; or else, seeing the augmented power of capital, organize into 
 overshadowing combinations and extinguish all petty competition, mo- 
 nopolize business, and dictate the price of coal and every other com- 
 modity to consumers. We say these results might follow the exercise 
 of such a right as is claimed for railroads in this ease. But we think 
 no such power exists in them ; they have been authorized for the com- 
 mon benefit of every one, and cannot be lawfully manipulated for the 
 advantage of any class at the expense of any other. Capital needs no 
 such extraneous aid. It possesses inherent advantages, which cannot 
 be taken from it. But it has no just claim, b} T reason of its accu- 
 mulated strength, to demand the use of the public highways of the 
 country, constructed for the common benefit of all, on more favorable 
 terms than are accorded to the humblest of the land ; and a discrimi- 
 nation in favor of parties furnishing the largest quantit} - of freight, and 
 solely on that ground, is a discrimination in favor of capital, and is 
 contrary to a sound public policy, violative of that equality of right 
 guaranteed to eveiy citizen, and a wrong to the disfavored party, for 
 which the courts are competent to give redress. 
 
 The motion, therefore, for a new trial will be denied, and a judgment 
 entered on the verdict for the damages assessed and the costs of the 
 suit. 
 
 Welker, D. J., concurred. 
 
 MENACHO v. WARD. 
 
 Circuit Court of the United States, S. New York, 1886. 
 
 [27 Fed. 529.] 
 
 Wallace, J. The complainants have filed a bill in each of these 
 causes to restrain the defendants from making discriminations for trans- 
 portation against the complainants, which consist in charging them a 
 higher rate of freight than is charged by defendants to other shippers 
 of merchandise generally. A motion is now made for a preliminary 
 injunction. The facts in each case are essentially the same, and both 
 cases may be considered together. 
 
 The complainants are merchants domiciled in the city of New York, 
 and engaged in commerce between that port and the island of Cuba. 
 The defendants are proprietors or managers of steamship lines plying 
 between New York and Cuba. Formerly the business of transportation 
 between the two places was carried on by sailing vessels. In 1877 the 
 line of steamships known as " AVard's Line" was established, and in 
 1881 was incorporated b} r the name of the New York & Cuba Mail 
 Steamship Line under the general laws of the State of New York. At
 
 202 MENACHO V. WARD. 
 
 the time of the incorporation of this company the line of steamships 
 owned by the defendants Alexandre & Sons had also been established. 
 These two lines were competitors between New York and Cuba, but for 
 several years both lines have been operated under a traffic agreement 
 between themselves, bj' which uniform rates are charged by each to the 
 public for transportation. The two lines are the only lines engaged in 
 the business of regular transportation between New York and Cuba ; 
 and unless merchants choose to avail themselves of the facilities offered 
 by them, they are obliged to ship their merchandise by vessels or 
 steamers which may casually ply between the two places. 
 
 It is alleged by the complainant that the defendants have announced 
 generally to New York merchants engaged in Cuban trade that they 
 must not patronize steamships which offer for a single voyage, and on 
 various occasions when other steamships have attempted to procure 
 cargoes from New York to Havana have notified shippers that those 
 employing such steamships would thereafter be subjected to onerous 
 discriminations by the defendants. The defendants allege in their 
 answer to the bill, in effect, that it has been found necessary, for the 
 purpose of securing sufficient patronage, to make differences in rates of 
 freight between shippers in favor of those who will agree to patronize 
 the defendants exclusively. Within a few months before the commence- 
 ment of this suit two foreign steamers were sent to New York to take 
 cargoes to Havana, and the complainants were requested to act as 
 agents. Thereupon the complainants were notified by the defendants 
 that they would be "placed upon the black-list" if they shipped goods 
 b}' these steamers, and that their rates of freight would thereafter be 
 advanced on all goods which they might have occasion to send Iry the 
 defendants. Since that time the defendants have habitually charged 
 the complainants greater rates of freight than those merchants who 
 shipped exclusively by the defendants. The freight charges, by the 
 course of business, are paid by consignees at the Cuban ports. The 
 complainants have attempted to pay the freight in advance, but have 
 found this course impracticable because their consignees are precluded 
 from deducting damages or deficiencies upon the arrival of the goods 
 from the charges for freight, and as a result some of the complainants' 
 correspondents in Cuba refuse to continue business relations with them, 
 being unwilling to submit to the annoyance of readjusting overcharges 
 with complainants. Upon this state of facts the complainants have 
 founded the allegation of their bill that the defendants " have arbi- 
 trarily refused them equal terms, facilities, and accommodations to 
 those granted and allowed by the defendants to other shippers, and 
 have arbitrarily exacted from them a much greater rate of freight than 
 the defendants have at the same time charged to shippers of merchan- 
 dise generally as a condition of receiving and transporting merchandise." 
 They apply for an injunction upon the theory that their grievances can- 
 not be redressed by an action at law. 
 
 It is contended for the complainants that a common carrier owes an
 
 MENACIIO V. WARD. 203 
 
 equal duty to every member of the community, and is not permitted to 
 make unequal preferences in favor of one person, or class of persons, as 
 against another person or class. The defendants insist that it is permit- 
 ted to common carriers to make reasonable discriminations in the rates 
 demanded from the public ; that they are not required to carry for all 
 at the same rates; that discriminations are reasonable which are based 
 upon the quantity of goods sent by different shippers ; and that the 
 discrimination in the present case is essentially such a discrimination, 
 and has no element of personal preference, and is necessary for the 
 protection of the defendants. 
 
 Unquestionably a common carrier is always entitled to a reasonable 
 compensation for his services. Hence it follows that he is not required 
 to treat all those who patronize him with absolute equality. It is his 
 privilege to charge less than fair compensation to one person, or to a 
 class of persons, and others cannot justly complain so long as he carries 
 on reasonable terms for them. Respecting preferences in rates of com- 
 pensation, his obligation is to charge no more than a fair return in each 
 particular transaction, and except as thus restricted he is free to dis- 
 criminate at pleasure. This is the equal justice to all which the law 
 exacts from the common carrier in his relations with the public. Bax- 
 endale v. Eastern Counties R. Co., 4 C. B. (N. S.) 78; Branley c. 
 Southeastern R. Co., 12 C. B. (N. S.) 74; Fitchburg R. Co. v. Gage, 
 12 Gray, 393 ; Sargent v. Boston & L. R. Corp., 115 Mass. 416, 422. 1 
 
 In the present case the question whether the defendants refuse to 
 carry for the complainants at a reasonable compensation resolves itself 
 into another form. Can the defendants lawfully require the complain- 
 ants to pa} T more for carrying the same kind of merchandise, under like 
 conditions, to the same places, than they charge to others, because the 
 complainants refuse to patronize the defendants exclusively, while other 
 shippers do not? The fact that the carrier charges some less than 
 others for the same service is merel} - evidence for the latter, tending to 
 show that he charges them too much ; but when it appears that the 
 charges are greater than those ordinarily and uniformly made to others 
 for similar services, the fact is not only competent evidence against the 
 carrier, but cogent evidence, and shifts upon him the burden of justify- 
 ing the exceptional charge. The estimate placed by a party upon the 
 value of his own services of property is always sufficient, against him, 
 to establish the real value ; but it has augmented probative force, and 
 is almost conclusive against him, when he has adopted it in a long 
 continued and extensive course of business dealings, and held it out as 
 a fixed and notorious standard for the information of the public. 
 
 The defendants assume to justify upon the theory that a carrier may 
 regulate his charges upon the basis of the quantity of goods delivered 
 to him for transportation by different shippers, and that their discrimi- 
 nation against the plaintiff is in substance one made with reference to 
 
 1 The court here cited passages from the opinions in Messenger v, Pennsylvania R. 
 R., 37 N. J. L. 531, and McDuffee v. Portland & R. R. R., 52 N. H. 430. —Ed.
 
 204 MENACHO V. WARD. 
 
 the quantity of merchandise furnished by thera for carriage. Courts of 
 law have always recognized the rights of carriers to regulate their 
 charges with reference to the quantity of merchandise carried for the 
 shipper, either at a given shipment, or during a given period of time, 
 although public sentiment in many communities has objected to such 
 discriminations, and crystallized into legislative condemnation of the 
 practice. By the English statutes (17 & 18 Vict. c. 31) railway and 
 canal carriers are prohibited from " giving an}' undue or unreasonable 
 preference or advantage to or in favor of an}' particular description of 
 traffic, in aii t y respect whatever," in the receiving, forwarding, and de- 
 livery of traffic; but under these provisions of positive law the courts 
 have held that it is not an undue preference to give lower rates for 
 larger quantities of freight. Ransome v. Eastern C. R. Co., 1 Nev. & 
 McN. 63, 155; Nicholsons. Great Western Ry. Co., Id. 121; Strick 
 v. Swansea Canal Co., 16 C. B. (N. S.) 245 ; Greenop u. S. E. R. Co., 
 2 Nev. & McN. 319. 
 
 These decisions proceed upon the ground that the carrier is entitled 
 to take into consideration the question of his own profits and interests 
 in determining what charges are reasonable. He may be able to carry 
 a large quantity of goods, under some circumstances, at no greater ex- 
 pense than would be required to carry a smaller quantity. His fair 
 compensation for carrying the smaller quantity might not be correctly 
 measured by the rate per pound, per bushel, or per mile charged for 
 the larger. If he is assured of regular shipments at given times, he 
 ma} - be able to make more economical arrangements for transportation. 
 By extending special inducements to the public for patronage he may 
 be able to increase his business, without a corresponding increase of 
 capital or expense in transacting it, and thus derive a larger profit. 
 He is therefore justified in making discriminations by a scale of rates 
 having reference to a standard of fair remuneration of all who patronize 
 him. But it is impossible to maintain that any analogy exists between 
 a discrimination based upon the quantity of business furnished by dif- 
 ferent classes of shippers, and one which altogether ignores this consid- 
 eration, and has no relation to the profits or compensation which the 
 carrier ought to derive for a given quantum of service. 
 
 The proposition is speciously put that the carrier may reasonably 
 discriminate between two classes of shippers, the regular and the casual ; 
 and that such is the only discrimination here. Undoubtedly the carrier 
 may adopt a commutative system, wherein- those who furnish him a 
 regular traffic may obtain reduced rates, just as he may properly reg- 
 ulate his charges upon the basis of the quantity of traffic which he 
 receives from different classes of shippers. But this is not the proposi- 
 tion to be discussed. The defendants assume to discriminate against 
 the complainants, not because they do not furnish them a regular busi- 
 ness, or a given number of shipments, or a certain quantity of merchan- 
 dise to carry, but because they refuse to patronize the defendants 
 exclusively. The question is whether the defendants refuse to carry for
 
 MENACHO V. WARD. 205 
 
 the complainants on reasonable terms. The defendants, to maintain the 
 affirmative, assert that their charges are fair because they do not have 
 the whole of the complainants' carrying business. But it can never be 
 material to consider whether the carrier is permitted to enjoy a monopoly 
 of the transportation for a particular individual, or class of individuals, 
 in ascertaining what is reasonable compensation for the services actu- 
 ally rendered to him or them. Such a consideration might be influen- 
 tial in inducing parties to contract in advance; but it has no legitimate 
 bearing upon the value of services rendered without a special contract, 
 or which are rendered because the law requires them to be rendered for 
 a fair remuneration. 
 
 A common carrier " is in the exercise of a sort of public office, and 
 has public duties to perform, from which he should not be permitted to 
 exonerate himself." Nelson, J., in New Jersey Steam Nav. Co. v. 
 Merchants' Bank, 6 How. 344. His obligations and liabilities are not 
 dependent upon contract, though they ma}' be modified and limited by 
 contract. They are imposed b}- the law, from the public nature of his 
 employment. Hannibal R. R. v. Swift, 12 Wall. 262. As their busi- 
 ness is " affected with a public interest," it is subject to legislative 
 regulation. " In matters which do affect the public interest, and as to 
 which legislative control may be exercised, if there are no statutory 
 regulations upon the subject, the courts must determine what is reason- 
 able." Waite, C J., in Munn v. Illinois, 94 U. S. 113, 134. It is 
 upon this foundation, and not alone because the business of common 
 carriers is so largely controlled by corporations exercising under fran- 
 chises the privileges which are held in trust for the public benefit, that 
 the courts have so strenuously resisted their attempts, by special con- 
 tracts or unfair preferences, to discriminate between those whom it is 
 their duty to serve impartially. And the courts are especially solicitous 
 to discountenance all contracts or arrangements b\' these public servants 
 which savor of a purpose to stifle competition or repress rivalry in the 
 departments of business in which they ply their vocation. Illustrations 
 are found in the cases of State v. Hartford & N. H. R. Co., 29 Conn. 
 538 ; Hooker v. Vandewater, 4 Denio, 349 ; W. TJ. Tel. Co. v. Chicago 
 & P. R. Co., 86 111. 246 ; Coe v. Louisville & N. R. Co., 3 Fed. 
 Rep. 775. 
 
 The vice of the discrimination here is that it is calculated to coerce 
 all those who have occasion to employ common carriers between New 
 York and Cuba from employing such agencies as may offer. Its ten- 
 denc}' is to deprive the public of their legitimate opportunities to obtain 
 carriage on the best terms they can. If it is tolerated it will result 
 practically in giving the defendants a monopoly of the carrying trade 
 between these places. Manifestly it is enforced by the defendants in 
 order to discourage all others from attempting to serve the public as 
 carriers between these places. Such discrimination is not only unrea- 
 sonable, but is odious. Ordinarily the remed}- against a carrier is at 
 law for damages for a refusal to cany, or to recover the excess of
 
 206 ROOT V. LONG ISLAND RAILROAD. 
 
 charges paid to obtain the delivery of goods. The special circumstances 
 in this case indicate that such a remedy would not afford complete and 
 adequate redress, " as practical and efficient to the ends of justice " as 
 the remedy in equity. Watson v. Sutherland, 5 Wall. 74. 
 The motion for an injunction is granted. 
 
 ROOT v. LONG ISLAND RAILROAD. 
 Court of Appeals of New York, Second Division, 1889. 
 
 [114 N. Y. 300; 21 N. E. 403.] 
 
 Haight, J. In June, 1876, the defendant and one Quintard entered 
 into a written contract, which, among other things, provided that 
 Quintard should build at Long Island City upon the lands of the de- 
 fendant a dock 250 feet long and 40 feet wide, and erect thereon a 
 pocket for holding and storing coal, according to certain plans and 
 specifications annexed. The defendant was to have the use of the 
 south side of the dock, and also of 30 feet of the shore end, and the 
 right to use the other portions thereof when not required by Quintard. 
 In consideration therefor the defendant agreed with Quintard to trans- 
 port in its cars all the coal in car-loads offered for transportation by 
 him at a rebate of 15 cents per ton of 2,240 pounds from the regular 
 tariff rates for coal transported by the defendant from time to time, 
 except in the case of the coal carried for the Brooklj-n Water-Works 
 Company, with which company the defendant reserved the right to 
 make a special rate, which should not be considered "the regular 
 tariff rate." The defendant also agreed with Quintard to provide 
 him with certain yard room and office room free of rent, and the con- 
 tract was to continue for the term of 10 years, and at the termination 
 of the contract the doek and structures were to be appraised, and the 
 value thereof, less the sum of 82,000 advanced by the defendant, to 
 be paid to Quintard. Pursuant to this agreement the dock and coal 
 pocket were constructed at an expense of $17,000, and coal in large 
 quantities was shipped over the defendant's road by Quintard or his 
 assignee under the contract, and it is for the rebate of 15 cents per 
 ton upon the coal so shipped that this action was brought. The 
 defence is that the contract was against public policy, and was there- 
 fore illegal and void. 
 
 The defendant is a railroad corporation organized under the laws 
 of the State, and was therefore a common carrier of passengers and 
 freight, and was subject to the duties and liabilities of such. These 
 duties and liabilities have often been the subject of judicial consid- 
 eration in the different States of the Union. In Illinois it has been 
 held that a railroad corporation, although permitted to establish its 
 rates for transportation, must do so without injurious discrimination
 
 ROOT V. LONG ISLAND RAILROAD. 207 
 
 to individuals; that its charges must be reasonable. Railroad Co. 
 v. People, G7 111. 11; Vincent v. Railroad Co., 49 111. 33. In Ohio it 
 was held that where a railroad company gave a lower rate to a favored 
 shipper with the intent to give such shipper an exclusive monopoly, 
 thus affecting the business and destroying the trade of other shippers, 
 the latter have the right to require an equal rate for all under like 
 circumstances. Scofield v. Railway Co., 43 Ohio St. 571. In New 
 Jersey it has been held that an agreement by a railroad company to 
 carry goods for certain persons at a cheaper rate than it would cany 
 under the same condition for others is void, as creating an illegal 
 preference; that common carriers are public agents, transacting their 
 business under an obligation to observe equality towards every mem- 
 ber of the community, to serve all persons alike, without giving unjust 
 or unreasonable advantages by way of facilities for the carriage, or 
 rates for the transportation, of goods. Messenger v. Railroad Co., 
 36 N. J. Law, 407; State v. Railroad Co., 48 N. J. Law, 55. In 
 New Hampshire it has been held that a railroad is bound to carry at 
 reasonable rates commodities for all persons who offer them, as early 
 as means will allow; that it cannot directly exercise unreasonable 
 discrimination as to who and what it will carry; that it cannot im- 
 pose unreasonable or unequal terms, facilities, or accommodations. 
 McDuffee v. Railroad, 52 N. H. 430. To similar effect are cases in 
 other States. Express Co. v. Railroad Co., 57 Me. 188; Shipper v. 
 Railroad Co,, 47 Pa. St. 338; Railroad Co. v. Gage, 12 Gray. 393; 
 Menacho v. Ward, 27 Fed. Rep. 529. In New York the authorities 
 are exceedingly meagre. The question was considered to some extent 
 in the case of Killmer v. Railroad Co., 100 N. Y. 395, in which it 
 was held that the reservation in the general act of the power of the 
 legislature to regulate and reduce charges, where the earnings exceeded 
 10 per cent of the capital actually expended, did not relieve the com- 
 pany from its common law duty as a common carrier; that the ques- 
 tion as- to what was a reasonable sum for the transportation of goods 
 on the lines of a railroad in a given case is a complex question, into 
 which enter many elements for consideration. 
 
 In determining the duty of a common carrier, we must be reason- 
 able and just. The carrier should be permitted to charge reasonable 
 compensation for the goods transported. He should not, however, 
 be permitted to unreasonably or unjustly discriminate against other 
 individuals, to the injury of. their business, where the conditions are 
 equal. So far as is reasonable, all should be treated alike; but we 
 are aware that absolute equality cannot in all cases be required, for 
 circumstances and conditions may make it impossible or unjust to the 
 carrier. The carrier ma} 7 be able to carry freight over a long distance 
 at a less sum than he could for a short distance. He may be able to 
 carry a large quantity at a less rate than he could a smaller quantity. 
 The facilities for loading and unloading may be different in different 
 places, and the expenses may be greater in some places than in others.
 
 208 ROOT V. LONG ISLAND RAILROAD. 
 
 Numerous circumstances may intervene which bear upon the cost 
 and expenses of transportation, and it is but just to the carrier that 
 he be permitted to take these circumstances into consideration in 
 determining the rate or amount of his compensation. His charges 
 must therefore be reasonable, and he must not unjustly discriminate 
 against others, and in determining what would amount to unjust dis- 
 crimination all the facts and circumstances must be taken into con- 
 sideration. This raises a question of fact, which must ordinarily be 
 determined by the trial court. The question as to whether there 
 was unjust discrimination embraced in the provisions of the contract 
 does not appear to have been determined by the referee, for no find- 
 ing of fact appears upon that subject. Neither does it appear that 
 he was requested to find upon that question, and consequently there is 
 no exception to the refusal to find thereon. Unless, therefore, we can 
 determine the question as one of law, there is nothing upon this sub- 
 ject presented for review in this court. Is the provision of the con- 
 tract, therefore, providing for a rebate of 15 cents per ton from the 
 regular tariff rates, an unjust discrimination as a matter of law? 
 Had this provision stood alone, unqualified by other provisions, with- 
 out the circumstances under which it was executed explaining the 
 necessity therefor, we should be inclined to the opinion that it did 
 provide for an unjust discrimination; but, upon referring to the con- 
 tract, we see that the rebate was agreed to be paid in consideration 
 for the dock and coal pocket which was to be constructed upon the 
 defendant's premises at an expense of $17,000, in part for the use and 
 convenience of the defendant. Quintard was to load all the cars with 
 the coal that was to be transported. It was understood that a large 
 quantity of coal was to be shipped over defendant's line, thus increas- 
 ing the business and income of the company. The facilities which 
 Quintard was to provide for the loading of the coal, his services in 
 loading the cars, the large quantities which he was to ship, in con- 
 nection with the large sums of money that he had expended in the 
 erection of the dock, in part for the use and accommodation of the 
 defendant, are facts which tend to explain the provision of the con- 
 tract complained of, and render it a question of fact for the determi- 
 nation of the trial court as to whether or not the rebate, under the 
 circumstances of this case, amounted to an unjust discrimination, 
 to the injury and prejudice of others. Therefore, in this case, the 
 question is one of fact, and not of law; and, inasmuch as the discrim- 
 ination has not been found to be unjust or unreasonable, the judgment, 
 cannot be disturbed. 1 
 
 The judgment should be affirmed with costs- 
 
 All concur. 
 
 Jtidgment affirmed. 
 
 1 A paragraph discussing a question of fact is omitted. — Ed.
 
 LOUGH V. OUTERBRIDGE. 209 
 
 LOUGH v. OUTERBRIDGE. 
 Court of Appeals of New York, 1894. 
 
 [143 N. Y. 271 ; 38 N. E. 292.] 
 
 O'Brien, J. The question presented by this appeal is one of very 
 great importance. It touches commerce, and, more especially, the 
 duties and obligations of common carriers to the public at many 
 points. There was no dispute at the trial, and there is none now, 
 with respect to the facts upon which it arises. In order to present the 
 question clearly, a brief statement of these facts becomes necessary. 
 The plaintiffs are the surviving members of a firm that, for many 
 years prior to the transaction upon which the action was based, had 
 been engaged in business as commission merchants in the city of 
 New York, transacting their business mainly with the Windward and 
 Leeward Islands. The defendant, the Quebec Steamship Company, 
 is a Canadian corporation, organized and existing under the laws of 
 Canada; and the other defendants are the agents of the corporation 
 in New York, doing business as partners. The business of the cor- 
 poration is that of a common carrier, transporting passengers and 
 freight for hire upon the sea and adjacent waters. For nearly 20 
 years prior to the transaction in question, a part of its business was 
 the transportation of cargoes between New York and the Barbadoes 
 and the Windward Islands, the other defendants acting as agents in 
 respect to this business. During some years prior to the commence- 
 ment of this action, the company had in its service a fleet of live or 
 six of the highest class iron steamers, sailing at intervals of about ten 
 days from New York to the islands, each steamer requiring about six 
 weeks to make the trip. The steamers were kept constantly engaged 
 in this service and sailed regularly upon schedule days without refer- 
 ence to the amount of cargo then received. The regular and standard 
 rate charged for freight up to December, 1891, from New York to 
 Barbadoes, one of the Windward Islands, was 50 cents per dry barrel 
 of five cubic feet, which was taken as the unit of measurement, and 
 the tariff of charges was adjusted accordingly for goods shipped in 
 other forms and packages. In December, 1891, the regular rate was 
 reduced from 50 to 40 cents per dry barrel. About this time the 
 British steamer El Callao, which had for some years before sailed 
 between New York and Ciudad Bolivar, in South America, trans- 
 porting passengers and freight between these points, began to take 
 cargo at New York for Barbadoes, and sometimes to other points in 
 the Windward Islands which she passed on her regular trips to Ciudad 
 Bolivar, sailing from New York at intervals of five or six weeks. 
 Her trade with South America was the principal feature of her busi- 
 ness, but such space as was not required for the cargo destined for 
 the end of the route was filled with cargo for the islands which lay 
 
 14
 
 210 LOUGH V. OUTEKBRIDGE. 
 
 in her regular course. The defendants evidently regarded this vessel 
 as a somewhat dangerous competitor for a part of the business, the 
 benefits of which they had up to this time enjoyed ; and, for the pur- 
 pose of retaining it, they adopted the plan of offering special reduced 
 rates of 25 cents per dry barrel to all merchants and business men in 
 New York who would agree to ship by their line exclusivel}' during 
 the week that the El Callao was engaged in obtaining freight and 
 taking on cargo. The plaintiffs' firm had business arrangements with 
 and were shipping by that vessel; and in February, 1892, they de- 
 manded of the defendants that they receive 3,000 barrels of freight 
 from New York to Barbadoes, and transport the same at the special 
 rate of 25 cents per barrel upon one of its steamers. The defendants 
 then informed the plaintiffs that the rate of 25 cents was allowed by 
 them only to such shippers as stipulated to give all their business 
 exclusively to the defendants' line, in preference to the El Callao, and 
 that to all other shippers the standard rate of 40 cents per dry barrel 
 was maintained; but they further informed the plaintiffs that, if they 
 would agree to give their shipments for that week exclusively to the 
 defendants' line, the goods would be received at the 25 cents rate. 
 The plaintiffs, however, were shipping by the other vessel, and de- 
 clined this offer. Again, in the month of May, 1892, the El Callao 
 was in the port of New York taking on cargo, as was also the de- 
 fendants' steamer Trinidad. The plaintiffs then demanded of the 
 defendants that they receive and carry from New York to Barbadoes 
 about 1,760 dry barrels of freight at the rate of 25 cents. The de- 
 fendants notified the plaintiffs that a general offer had that day been 
 made by them to the trade to take cargo for Barbadoes on the Trini- 
 dad, to sail on June 4th, at 25 cents per dry barrel, under an agree- 
 ment that shippers accepting that rate should bind themselves not to 
 ship to that point by steamers of any other line between that date 
 and the sailing of the Trinidad. The defendants offered these terms 
 to the plaintiffs, but, as they were shipping by the rival vessel, the 
 offer was declined. Except during the week when the El Callao was 
 engaged in taking on cargo, the defendants have maintained the 
 regular rate of 40 cents to all shippers between these points; and, 
 when it reduced the rate as above described, exactly the same rates, 
 terms, and conditions were offered to all shippers, including the 
 plaintiffs, and carried freight for other parties at the reduced rates 
 only upon their entering into a stipulation not to ship by the rival 
 vessel. After the plaintiffs' demand last mentioned had been refused, 
 they obtained an order from one of the judges of the court in this 
 action requiring the defendants to carry the 1,760 barrels, and the 
 defendants did receive and transport them, in obedience to the order, 
 at the rate of 25 cents; but this order was reversed at general term. 
 The plaintiffs demand equitable relief in the action to the effect, 
 substantially, that the defendants be required and compelled by the 
 judgment of the court to receive and transport for the plaintiffs their
 
 LOUGH V. OUTEKBRIDGE. 211 
 
 freight at the special reduced rates, when allowed to all other ship- 
 pers, without imposing the condition that the plaintiffs stipulate to 
 ship during the times specified by the defendants' line exclusively. 
 
 Whether the regular rate of 40 cents, for which it is conceded that 
 the defendants offered to carry for the plaintiffs at all times without 
 conditions, was or was not reasonable, was a question of fact to be 
 determined upon the evidence at the trial; and the learned trial judge 
 has found as matter of fact that it was reasonable, and that the re- 
 duced rate of 25 cents granted to shippers on special occasions, and 
 upon the conditions and requirements mentioned, was not profitable. 
 This finding, which stands unquestioned upon the record, seems to 
 me to be an element of great importance in the case, which must be 
 recognized at every stage of the investigation. A common carrier is 
 subject to an action at law for damages in case of refusal to perform 
 its duties to the public for a reasonable compensation, or to recover 
 back the money paid when the charge is excessive. This right to 
 maintain an action at law upon the facts alleged, it is urged by the 
 learned counsel for the defendants, precludes the plaintiffs from main- 
 taining a suit for equitable relief such as is demanded in the com- 
 plaint. There is authority in other jurisdictions to sustain the 
 practice adopted by the plaintiffs (Watson v. Sutherland, 5 Wall. 74; 
 Menacho v. Ward, 27 Fed. 529; Toledo, A. A. & N. M. Ey. Co. v. 
 Pennsylvania Co., 54 Fed. 741; Coe & Milsom v. Railroad Co., 3 
 Fed. 775; Vincent v. Railroad Co., 49 111. 33; Scofield v. Railroad 
 Co., 43 Ohio St. 571), though I am not aware of any in this State that 
 would bring a case based upon such facts within the usual or ordinary 
 jurisdiction of equity. So far as this case is concerned, it is sufficient 
 to observe that it is now settled by a very general concurrence of 
 authority that a defendant cannot, when sued in equity, avail himself 
 of the defence that an adequate remedy at law exists, unless he pleads 
 that defence in his answer. Cogswell v. Railroad Co., 105 N. Y. 
 319; Town of Mentz v. Cook, 108 N. Y. 504; Ostrander v. Weber, 
 114 N. Y. 95; Dudley v. Congregation, 138 N. Y. 460; Truscott v. 
 King, 6 N. Y. 147. 
 
 When the facts alleged are sufficient to entitle the plaintiff to relief 
 in some form of action, and no objection has been made by the de- 
 fendant to the form of the action in his answer or at the trial, it is 
 too late to raise the point after judgment or upon appeal. So that, 
 whatever objections might have been urged originally against the 
 action in its present form, the defendants must now be deemed to have 
 waived them. This court will not now stop to examine a minor 
 question that does not touch the merits, but relates wholly to the form 
 in which the plaintiffs have presented the facts and demanded relief, 
 or to the practice and procedure. The time and place to raise and 
 discuss these questions was at or before the trial, and, as they were 
 not then raised, the case must be examined and disposed of upon the 
 merits. The defendants were engaged in a business in which the
 
 212 LOUGH V. OUTEKBRIDGE. 
 
 public were interested, and the duties and obligations growing out 
 of it may be enforced through the courts and the legislative power. 
 Munn v. Illinois, 94 U. S. 113; People v. Budd, 117 N. Y. 1. In 
 England these duties are, to a great extent, regulated by the railway 
 and canal traffic act (17 & 18 Vict., c. 81), and by statute in some of 
 the States, and in this country, so far as they enter into the business 
 of interstate commerce, by act of Congress. The solution of the ques- 
 tion now presented depends upon the general principles of the common 
 law, as there is no statute in this State that affects the question, and 
 the legislation referred to is important only for the purpose of in- 
 dicating the extent to which business of this character has been sub- 
 jected to public regulation for the general good. There can be no 
 doubt that at common law a common carrier undertook generally, and 
 not as a casual occupation, to convey and deliver goods for a reason- 
 able compensation as a business, with or without a special agreement, 
 and for all people indifferently; and, in the absence of a special 
 agreement, he was bound to treat all alike in the sense that he was 
 not permitted to charge any one an excessive price for the services. 
 He has no right in any case while engaged in this public employment 
 to exact from any one anything beyond what under the circum- 
 stances is reasonable and just. 2 Kent, Comm. (13th ed.) 598; Story, 
 Bailm. §§495, 508; 2 Pars. Cont. 175; Killmer v. Railroad Co., 100 
 N. Y. 395; Root v. Railroad Co. 114 N. Y. 300. It may also be con- 
 ceded that the carrier cannot unreasonably or unjustly discriminate 
 in favor of one or against another .where the circumstances and 
 conditions are the same. The question in this case is whether the 
 defendants, upon the undisputed facts contained in the record, have 
 discharged these obligations to the plaintiffs. There was no refusal 
 to carry for a reasonable compensation. On the contrary, the defend- 
 ants offered to transport the goods for the 40 cents rate, and we are 
 concluded by the finding as to the reasonable nature of that charge. 
 The defendants even offered to carry them at the unprofitable rate of 
 25 cents, providing the plaintiffs w T ould comply with the same condi- 
 tions upon which the goods of any other person were carried at that 
 rate. What is reasonable and just in a common carrier in a given 
 case is a complex question, into which enter many elements for con- 
 sideration. The questions of time, place, distance, facilities, quan- 
 tity, and character of the goods, and many other matters must be 
 considered. The carrier can afford to carry 10,000 tons of coal and 
 other property to a given place for less compensation per ton than 
 he could carry 50; and, where the business is of great magnitude, a 
 rebate from the standard rate might be just and reasonable, while it 
 could not fairly be granted to another who desired to have a trifling 
 amount of goods carried to the same point. So long as the regular 
 standard rates maintained by the carrier and offered to all are reason- 
 able, one shipper cannot complain because his neighbor, by reason of 
 special circumstances and conditions, can make it an object for the
 
 LOUGH V. OUTERBRIDOE. 213 
 
 carrier to give bim reduced rates. In this case the finding implies 
 that the defendants at certain times carried goods at a loss, upon the 
 condition that the shippers gave them all of their business. What- 
 ever effect may be given to the legislation referred to, in its applica- 
 tion to railroads and other corporations deriving their powers and 
 franchises from the State, there can be no doubt that the carrier could 
 at common law make a discount from its reasonable general rates in 
 favor of a particular customer or class of customers in isolated 
 cases, for special reasons, and upon special conditions, without 
 violating any of the duties or obligations to the public inherent in 
 the employment. If the general rates are reasonable, a deviation 
 from the standard by the carrier in favor of particular customers, for 
 special reasons not applicable to the whole public, does not furnish to 
 parties not similarly situated any just ground for complaint. When 
 the conditions and circumstances are identical, the charges to all 
 shippers for the same service must be equal. These principles are 
 well settled, and whatever may be found to the contrary in the cases 
 cited by the learned counsel for the plaintiff originated in the appli- 
 cation of statutory regulations in other States and countries. Rail- 
 road Co. v. Gage, 12 Gray, 393; Sargent v. Railroad Co., 115 Mass. 
 422; Steamship Co. v. McGregor, 21 Q. B. Div. 544, affirmed 23 
 Q. B. Div. 598, and by H. L. 17 App. Cas. 25; Elvershed v. Railway 
 Co., 3 Q. B. Div. 135; Baxendale v. Railroad Co., 4 C. B. (N. S.) 
 78; Branley v. Railroad Co., 12 C. B. (N. S.) 74. 
 
 Special favors in the form of reduced rates to particular customers 
 may form an element in the inquiry whether, as matter of fact, the 
 standard rates are reasonable or otherwise. If they are extended to 
 such persons at the expense of the general public, the fact must be 
 taken into account in ascertaining whether a given tariff of general 
 prices is or is not reasonable. But, as in this case the reasonable 
 nature of the price for which the defendants offered to carry the 
 plaintiffs' goods has been settled by the findings of the trial court, 
 it will not be profitable to consider further the propriety or effect of 
 such discrimination. The rule of the common law was thus broadly 
 stated by the Supreme Court of Massachusetts in the case of Railroad 
 Co. v. Gage, supra. Upon that point the court said: "The recent 
 English cases, cited by the counsel for the defendants, are chiefly 
 commentaries upon the special legislation of Parliament regulating 
 the transportation of freight on railroads constructed under the 
 authority of the government there, and consequently throw very little 
 light upon questions concerning the general rights and duties of com- 
 mon carriers, and are for that reason not to be regarded as author- 
 itative expositions of the common law upon these subjects. The 
 principle derived from that source is very simple. It requires equal 
 justice to all. But the equality which is to be observed consists in 
 the restricted right to charge a reasonable compensation, and no 
 more. If the carrier confines himself to this, no wrong can be done.
 
 214 LOUGH V. OUTERBKIDGE. 
 
 If, for special re? sons in isolated cases, tbe carrier sees fit to stipu- 
 late for the carriage of goods of any class for individuals, for a 
 certain time, or in certain quantities, for a less compensation than 
 what is the usual, necessary, and reasonable rate, he may undoubt- 
 edly do so without entitling all parties to the same advantage." In 
 Evershed v. Kailway Co., supra, Lord Bramwell remarked: "I am 
 not going to lay down a precise rule, but, speaking generally, and 
 subject to qualification, it is open to a railway company to make a 
 bargain with a person, provided they are willing to make the same 
 bargain with any other, though that other may not be in a situation 
 to make it. An obvious illustration may be found in season tickets." 
 The authorities cited seem to me to remove all doubt as to the right 
 of a carrier, by special agreement, to give reduced rates to customers 
 who stipulate to give them all their business, and to refuse these rates 
 to others who are not able or willing to so stipulate, providing, 
 always, that the charge exacted from such parties for the service is 
 not excessive or unreasonable. The principle of equality to all, so 
 earnestly contended for by the learned counsel for the plaintiffs, was 
 not, therefore, violated by the defendants, since they were willing and 
 offered to carry the plaintiffs' goods at the reduced rate, upon the 
 same terms and conditions that these rates were granted to others; 
 and, if the plaintiffs were unable to get the benefit of such rate, it 
 was because, for some reason, they were unable or unwilling to comply 
 with the conditions upon which it was given to their neighbors, and 
 not because the carrier disregarded his duties or obligations to the 
 public. The case of Menacho v. Ward, 27 Fed. 529, does not apply, 
 because the facts were radically different. That action was to restrain 
 the carrier from exacting unreasonable charges habitually for ser- 
 vices, the charges having been advanced as to the parties complaining, 
 for the reason that they had at times employed another line. It de- 
 cides nothing contrary to the general views here stated. On the con- 
 trary, the court expressly recognized the general rule of the common 
 law with respect to the obligations and duties of the carrier substan- 
 tially as it is herein expressed, as will be seen from the following 
 paragraph in the opinion of Judge Wallace: "Unquestionabl}', a 
 common carrier is always entitled to a reasonable compensation for 
 his services. Hence it follows that he is not required to treat all 
 those who patronize him with absolute equality. It is his privilege to 
 charge less than a fair compensation to one person, or to a class of 
 persons, and others cannot justly complain so long as he carries on 
 reasonable terms for them. Respecting preference in rates of com- 
 pensation, his obligation is to charge no more than a fair return in 
 each particular transaction, and, except as thus restricted, he is free 
 to discriminate at pleasure. This is the equal justice to all which 
 the law exacts from the common carrier in his relations with the 
 public." 
 
 But it is urged that the plaintiffs were in fact the only shippers of
 
 LOUGH V. OUTERBRIDGE. 215 
 
 goods from New York to Barbadoes by the El Callao, and therefore 
 the condition imposed that the reduced rate should be granted only 
 to such merchants as stipulated to give the defendants their entire 
 business, while in terms imposed upon the public generally, was in 
 fact aimed at the plaintiffs alone. The trial court refused to find this 
 fact, but, assuming that it appeared from the undisputed evidence, 
 I am unable to see how it could affect the result. The significance 
 which the learned counsel for the plaintiffs seems to give to it in his 
 argument is that it conclusively shows the purpose of the defendants 
 to compel the plaintiffs to withdraw their patronage from the other 
 line, to suppress competition in the business, and to retain a monopoly 
 for their own benefit. Conceding that such was the purpose, it is not 
 apparent how any obligation that the defendants owed to the public 
 was disregarded. We have seen that the defendants might lawfully 
 give reduced rates in special cases, and refuse them in others, where 
 the conditions are different, or to the general public, where the regular 
 rates are reasonable. The purpose of an act which in itself is per- 
 fectly lawful, or, under all the circumstances, reasonable, is seldom, 
 if ever, material. Phelps v. Nowlen, 72 N. Y. 89 ; Kiff v. Yournans, 
 86 N. Y. 324. The mere fact that the transportation business be- 
 tween the two points in question was in the hands of the defendants 
 did not necessarily create a monopoly, if the general rates maintained 
 were reasonable and just. It is not pretended that the owners of the 
 El Callao proposed to give regular service to the general public for 
 any less. When the service is performed for a reasonable and just 
 hire, the public have no interest in the question whether one or many 
 are engaged in it. The monopoly which the law views with disfavor 
 is the manipulation of a business in which the public are interested 
 in such a way as to enable one or a few to control and regulate it in 
 their own interest, and to the detriment of the public, by exacting 
 unreasonable charges. But when an individual or a corporation has 
 established a business of a special and limited character, such as the 
 defendants in this case had, they have a right to retain it b} T the use 
 of all lawful means. That was what the defendants attempted to do 
 against a competitor that engaged in it, not regularly or permanently, 
 but incidentally and occasionally. The means adopted for this pur- 
 pose was to offer the service to the public at a loss to themselves 
 whenever the competition was to be met, and, when it disappeared, to 
 resume the standard rates, which, upon the record, did not at any time 
 exceed a reasonable and fair charge. I cannot perceive anything 
 unlawful or against the public good in seeking by such means to retain 
 a business which it does not appear was of sufficient magnitude to 
 furnish employment for both lines. On this branch of the argument 
 the remarks of Lord Coleridge in the case of Steamship Co. v. 
 McGregor, supra, are applicable: "The defendants are traders, with 
 enormous sums of money embarked in their adventure, and naturally 
 and allowably desire to reap a profit from their trade. They have a
 
 216 LOUGH V. OUTERBRIDGE. 
 
 right to push their lawful trades by all lawful means. They have a 
 right to endeavor, by lawful means, to keep their trade in their own 
 hands, and by the same means to exclude others from its benefits, if 
 they can. Amongst lawful means is certainly included the inducing, 
 by profitable offers, customers to deal with them, rather than with 
 their rivals. It follows that they may, if they see fit, endeavor to in- 
 duce customers to deal with them exclusively by giving notice that 
 only to exclusive customers will they give the advantage of their 
 profitable offers. I do not think it matters that the withdrawal of the 
 advantages is out of all proportion to the injury inflicted by those 
 who withdraw them on the customers who decline to deal exclusively 
 with them dealing with other traders." The courts, I admit, should 
 do nothing to lessen or weaken the restraints which the law imposes 
 upon the carrier, or in any degree to impair his obligation to serve all 
 persons indifferently in his calling, in the absence of a reasonable 
 excuse, and for a reasonable compensation only ; but to hold, as we 
 are asked to in this case, that the plaintiffs were entitled to have their 
 goods carried by the defendants at an unprofitable rate, without com- 
 pliance with the conditions upon which it was granted to all others, 
 and which constituted the motive and inducement for the offer, would 
 be extending these obligations beyond the scope of any established 
 precedent based upon the doctrine of the common law, and would, I 
 think, be contrary to reason and justice. 
 
 The judgment of the court below dismissing the complaint was 
 right, and should be affirmed, with costs. 
 
 Finch, Gray, and Bartlett, JJ., concur. Peckham, J., dissents. 
 
 Andrews, C. J., not sitting. 
 
 Judgment affirmed.
 
 INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. 217 
 
 CHAPTEE II. 
 
 THE INTERSTATE COMMERCE ACT. 1 
 
 INTERSTATE COMMERCE COMMISSION v. BALTIMORE & 
 
 OHIO RAILROAD. 
 
 Supreme Court of the United States, 1892. 
 
 [145 U. S. 263.] 
 
 This proceeding was originally instituted by the filing of a peti- 
 tion before the Interstate Commerce Commission by the Pittsburg, 
 Cincinnati, & St. Louis Railway Company against the Baltimore & 
 Ohio Railroad Company, to compel the latter to withdraw from its 
 lines of road, upon which business competitive with that of the peti- 
 tioner was transacted, the so-called "party rates," and to decline to 
 give such rates in future upon such lines of road; also for an 
 order requiring said company to discontinue the practice of selling 
 excursion tickets at less than the regular rate, unless such rates were 
 posted in its offices, as required by law. The petition set forth 
 that the two roads were competitors from Pittsburg westward ; that 
 the Baltimore & Ohio road had in operation upon its competing lines 
 of road so-called "party rates," whereby "parties of ten or more 
 persons travelling together on one ticket will be transported over 
 said lines of road between stations located thereon at two cents per 
 mile per capita, which is less than the rate for a single person ; said 
 rate for a single person being about three cents per mile." 2 . . . 
 
 The cause was heard before the commission, which found "that 
 so-called 'party rate' tickets, sold at reduced rates, and entitling a 
 number of persons to travel together on a single ticket or otherwise, 
 are not commutation tickets, within the meaning of section 22 of the 
 act to regulate commerce, and that, when the rates at which such 
 tickets for parties are sold are lower for each member of the party 
 than rates contemporaneously charged for the transportation of 
 single passengers between the same points, they constitute unjust 
 discrimination, and are therefore illegal." It was ordered and 
 adjudged "that the defendant, the Baltimore & Ohio Railroad Com- 
 pany, do forthwith wholly and immediately cease and desist from 
 
 1 Act of Feb. 4, 1887 ; 24 St. 379 ; printed in McClain's Cases, App. 
 
 2 Part of the statement of facts is omitted. — Ed.
 
 218 INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. 
 
 charging rates for the transportation over its lines of a number 
 of persons travelling together in one part}' which are less for each 
 person than rates contemporaneously charged by said defendant 
 under schedules lawfully in effect for the transportation of single 
 passengers between the same points." 
 
 The defendant road having refused to obey this mandate, the com- 
 mission, on May 1, 1890, pursuant to section 16 of the Interstate 
 Commerce Act, filed this bill in the Circuit Court of the United 
 States for the Southern District of Ohio for a writ of injunction to 
 restrain the defendant from continuing in its violation of the order 
 of the commission. . . . 
 
 Mr. Justice Brown delivered the opinion of the court. 
 
 Prior to the enactment of the act of February 4, 1887, to regulate 
 commerce, commonly known as the "Interstate Commerce Act" (24 
 St. 379), railway traffic in this country was regulated by the princi- 
 ples of the common law applicable to common carriers, which de- 
 manded little more than that they should carry for all persons who 
 applied, in the order in which the goods were delivered at the partic- 
 ular station, and that their charges for transportation should be 
 reasonable. It was even doubted whether they were bound to make 
 the same charge to all persons for the same service; Fitehburg 
 Railroad Co. v. Gage, 12 Gray, 393; Baxendale v. Eastern Counties 
 Railway Co., 4 C. B. (N. S.) 63; Great Western Railway Co. v. 
 Sutton, L. R. 4 H. L. 226, 237; Ex parte Benson, 18 S* C. 38; 
 Johnson v. Pensacola Railway Co., 16 Fla. 623; though the weight 
 of authority in this country was in favor of an equality of charge to 
 all persons for similar services. In several of the States acts had 
 been passed with the design of securing the public against unreason- 
 able and unjust discriminations; but the inefficacy of these laws 
 beyond the lines of the State, the impossibility of securing concerted 
 action between the legislatures toward the regulation of traffic be- 
 tween the several States, and the evils which grew up under a policy 
 of unrestricted competition, suggested the necessity of legislation 
 by Congress under its constitutional power to regulate commerce 
 among the several States. These evils ordinarily took the shape of 
 inequality of charges made, or of facilities furnished, and were 
 usually dictated by or tolerated for the promotion of the interests of 
 the officers of the corporation or of the corporation itself, or for the 
 benefit of some favored persons at the expense of others, or of some 
 particular locality or community, or of some local trade or commer- 
 cial connection, or for the destruction or crippling of some rival 
 or hostile line. 
 
 The principal objects of the Interstate Commerce Act were to 
 secure just and reasonable charges for transportation; to prohibit 
 unjust discriminations in the rendition of like services under similar 
 circumstances and conditions; to prevent undue or unreasonable 
 preferences to persons, corporations, or localities ; to inhibit greater
 
 INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. 219 
 
 compensation for a shorter than for a longer distance over the same 
 line; and to abolish combinations for the pooling of freights. It was 
 not designed, however, to prevent competition between different 
 roads, or to interfere with the customary arrangements made by rail- 
 way companies for reduced fares in consideration of increased mile- 
 age, where such reduction did not operate as an unjust discrimina- 
 tion against other persons travelling over the road. In other words, 
 it was not intended to ignore the principle that one can sell at whole- 
 sale cheaper than at retail. It is not all discriminations or preferences 
 that fall within the inhibition of the statute, — only such as are unjust 
 or unreasonable. For instance, it would be obviously unjust to 
 charge A. a greater sum than B. for a single trip from Washington to 
 Pittsburg; but, if A. agrees not only to go, but to return by the 
 same route, it is no injustice to B. to permit him to do so for a 
 reduced fare, since the services are not alike, nor the circumstances 
 and conditions substantially similar, as required by section 2 to 
 make an unjust discrimination. Indeed, the possibility of just 
 discriminations and reasonable preferences is recognized by these 
 sections, in declaring what shall be deemed unjust. "We agree, 
 however, with the plaintiff in its contention that a charge may be 
 perfectly reasonable under section 1, and yet may create an unjust 
 discrimination or an unreasonable preference under sections 2 and 3. 
 As was said by Mr. Justice Blackburn in Great Western Railway 
 Co. v. Sutton, L. R. 4 II. L. 226, 239: "When it is sought to show 
 that the charge is extortionate, as being contrary to the statutable 
 obligation to charge equally, it is immaterial whether the charge 
 is reasonable or not; it is enough to show that the company carried 
 for some other person or class of persons at a lower charge during 
 the period throughout which the party complaining was charged 
 more under the like circumstances." 
 
 The question involved in this case is whether the principle above 
 stated, as applicable to two individuals, applies to the purchase of 
 a single ticket covering the transportation of 10 or more persons from 
 one place to another. These are technically known as "party rate 
 tickets," and are issued principally to theatrical and operatic com- 
 panies for the transportation of their troupes. Such ticket is clearly 
 neither a "mileage" nor an "excursion " ticket within the exception 
 of section 22; and upon the testimony in this case it may be doubt- 
 ful whether it falls within the definition of "commutation tickets," 
 as those words are commonly understood among railway officials. 
 The words "commutation ticket" seem to have no definite meaning. 
 They are defined by Webster (edition of 1891) as "a ticket, as 
 for transportation, which is the evidence of a contract for service at 
 a reduced rate." If this definition be applicable here, then it is clear 
 that it would include a party rate ticket. In the language of the 
 railway, however, they are principally, if not wholly, used to desig- 
 nate tickets for transportation during a limited time between neigh-
 
 220 INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. 
 
 boring towns, or cities and suburban towns. The party rate ticket 
 upon the defendant's road is a single ticket, issued to a party of 10 
 or more, at a fixed rate of 2 cents per mile, or a discount of one third 
 from the regular passenger rate. The reduction is not made by way 
 of a secret rebate or drawback, but the rates are scheduled, posted, 
 and open to the public at large. 
 
 But, assuming the weight of evidence in this case to be that the 
 party rate ticket is not a "commutation ticket." as that word was 
 commonly understood at the time of the passage of the act, but is a 
 distinct class by itself, it does not necessarily follow that such 
 tickets are unlawful. The unlawfulness defined by sections 2 and 3 
 consists either in an " unjust discrimination" or an "undue or un- 
 reasonable preference or advantage," and the object of section 22 was 
 to settle, beyond all doubt, that the discrimination in favor of cer- 
 tain persons therein named should not be deemed unjust. It does 
 not follow, however, that there may not be other classes of persons 
 in whose favor a discrimination may be made without such discrim- 
 ination being unjust. In other words, this section is rather illustra- 
 tive than exclusive. Indeed, many, if not all, the excepted classes 
 named in section 22 are those which, in the absence of this section, 
 would not necessarily be held the subjects of an unjust discrimina- 
 tion, if more favorable terms were extended to them than to ordinary 
 passengers. Such, for instance, are property of the United States, 
 State, or municipal governments ; destitute and homeless persons 
 transported free of charge by charitable societies; indigent persons 
 transported at the expense of municipal governments; inmates of 
 soldiers' homes, etc., and ministers of religion, — in favor of whom a 
 reduction of rates had been made for many years before the passage 
 of the act. It may even admit of serious doubt whether, if the mile- 
 age, excursion, or commutation tickets had not been mentioned at all 
 in this section, they would have fallen within the prohibition of 
 sections 2 and 3; in other words, whether the allowance of a reduced 
 rate to persons agreeing to travel 1,000 miles, or to go and return by 
 the same road, is a "like and contemporaneous service under sub- 
 stantially similar conditions and circumstances " as is rendered to a 
 person who travels upon an ordinary single trip ticket. If it be so, 
 then, under State laws forbidding unjust discriminations, every such 
 ticket issued between points within the same State must be illegal. 
 In view of the fact, however, that every railway company issues such 
 tickets; that there is no reported case, State or federal, wherein 
 their illegality has been questioned ; that there is no such case in Eng- 
 land; and that the practice is universally acquiesced in by the 
 public, — it would seem that the issuing of such tickets should not be 
 held an unjust discrimination or an unreasonable preference to the 
 persons travelling upon them. 
 
 But, whether these party rate tickets are commutation tickets 
 proper, as known to railway officials, or not, they are obviously
 
 INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. 221 
 
 within the commuting principle. As stated in the opinion of Judge 
 Sage in the court below: "The difference between commutation and 
 party rate tickets is that commutation tickets are issued to induce 
 people to travel more frequently, and party rate tickets are issued to 
 induce more people to travel. There is, however, no difference in 
 principle between them, the object in both cases being to increase 
 travel without unjust discrimination, and to secure patronage that 
 would not otherwise be secured." 
 
 The testimony indicates that for many years before the passage of 
 the act it was customary for railroads to issue tickets at reduced rates 
 to passengers making frequent trips, — trips for long distances, and 
 trips in parties of 10 or more, lower than the regular single fare 
 charged between the same points; and such lower rates were univer- 
 sally made at the date of the passage of the act. As stated in the 
 answer, to meet the needs of the commercial traveller, the 1, 000-mile 
 ticket was issued; to meet the needs of the suburban resident or 
 frequent traveller, several forms of tickets were issued. For exam- 
 ple, monthly or quarterly tickets, good for any number of trips within 
 the specified time; and 10, 25, or 50 trip tickets, good for a specified 
 number of trips by one person, or for one trip by a specified number 
 of persons; to accommodate parties of 10 or more, a single ticket, 
 one way or round trip, for the whole party, was made up by the agent 
 on a skeleton form furnished for that purpose; to accommodate excur- 
 sionists travelling in parties too large to use a single ticket, special 
 individual tickets were issued to each person. Tickets good for a 
 specified number of trips were also issued between cities where travel 
 was frequent. In short, it was an established principle of the busi- 
 ness that whenever the amount of travel more than made up to the 
 carrier for the reduction of the charge per capita, then such reduction 
 was reasonable and just in the interests both of the carrier and of 
 the public. Although the fact that railroads had long been in the 
 habit of issuing these tickets would be by no means conclusive evi- 
 dence that they were legal, since the main purpose of the act was to 
 put an end to certain abuses which had crept into the management 
 of railroads, yet Congress may be presumed to have had those prac- 
 tices in view, and not to have designed to interfere with them, except 
 so far as they were unreasonable in themselves, or unjust to others. 
 These tickets, then, being within the commutation principle of 
 allowing reduced rates in consideration of increased mileage, the 
 real question is whether this operates as an undue or unreasonable 
 preference or advantage to this particular description of traffic, or an 
 unjust discrimination against others. If, for example, a railway 
 makes to the public, generally, a certain rate of freight, and to a 
 particular individual residing in the same town a reduced rate for 
 the same class of goods, this may operate as an undue preference, 
 since it enables the favored party to sell his goods at a lower price 
 than his competitors, and may even enable him to obtain a complete
 
 222 INTERSTATE commerce COMMISSION V. BALT. & OHIO E. 
 
 monopoly of that business. Even if the same reduced rate be allowed 
 to every one doing the same amount of business, such discrimination 
 may, if carried too far, operate unjustly upon the smaller dealers 
 engaged in the same business and enable the larger ones to drive 
 them out of the market. 
 
 The same result, however, does not follow from the sale of a ticket 
 for a number of passengers at a less rate than for a single passenger; 
 it does not operate to the prejudice of the single passenger, who 
 cannot be said to be injured by the fact that another is able, in a par- 
 ticular instance, to travel at a less rate than he. If it operates injuri- 
 ously towards any one it is the rival road, which has not adopted 
 corresponding rates; but, as before observed, it was not the design of 
 the act to stifle competition, nor is there any legal injustice in one 
 person procuring a particular service cheaper than another. If it be 
 lawful to issue these tickets, then the Pittsburg, Chicago, & St. 
 Louis Railway Company has the same right to issue them that the 
 defendant has, and may compete with it for the same traffic; but it 
 is unsound to argue that it is unlawful to issue them because it has 
 not seen fit to do so. Certainly its construction of the law is not 
 binding upon this court. The evidence shows that the amount of 
 business done by means of these party rate tickets is very large; that 
 theatrical and operatic companies base their calculation of profits to 
 a certain extent upon the reduced rates allowed by railroads; and 
 that the attendance at conventions, political and religious, social 
 and scientific, is, in a great measure, determined by the ability of 
 the delegates to go and come at a reduced charge. If these tickets 
 were withdrawn, the defendant road would lose a large amount of 
 travel, and the single trip passenger would gain absolutely nothing. 
 If a case were presented where a railroad refused an application for a 
 party rate ticket upon the ground that it was not intended for the 
 use of the general public, but solely for theatrical troupes, there 
 would be much greater reason for holding that the latter were favored 
 with an undue preference or advantage. 
 
 In order to constitute an unjust discrimination under section 2 the 
 carrier must charge or receive directly from one person a greater or 
 less compensation than from another, or must accomplish the same 
 thing indirectly by means of a special rate, rebate, or other device; 
 but, in either case, it must be for a "like and contemporaneous ser- 
 vice in the transportation of a like kind of traffic, under substantially 
 similar circumstances and conditions." To bring the present case 
 within the words of this section, we must assume that the transporta- 
 tion of 10 persons on a single ticket is substantially identical with 
 the transportation of one, and, in view of the universally accepted 
 fact that a man may buy, contract, or manufacture on a large scale 
 cheaper proportionately than upon a small scale, this is impossible. 
 
 In this connection we quote with approval from the opinion of 
 Judge Jackson in the court below: " To come within the inhibition
 
 INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. c lS-\ 
 
 of said sections, the differences must be made under Like conditions; 
 that is, there must be contemporaneous service in the transportation 
 of like kinds of traffic under substantially the same circumstances 
 and conditions. Jn respect to passenger traffic, the positions of the 
 respective persons or classes between whom differences in charges are 
 made must be compared with each other, and there must be found to 
 exist substantial identity of situation and of service, accompanied by 
 irregularity and partiality resulting in undue advantage to one. or 
 undue disadvantage to the other, in order to constitute unjust 
 discrimination." 
 
 The English Traffic Act of 1854 contains a clause similar to sec- 
 tion 3 of the Interstate Commerce Act, that "no such company shall 
 make or give any undue or unreasonable preference or advantage to 
 or in favor of any particular person or company, or any particular 
 description of traffic, in any respect whatsoever, nor shall any such 
 company subject any particular person or company, or any particular 
 description of traffic, to any undue or unreasonable prejudice or dis- 
 advantage in any respect whatsoever." 
 
 In Hozier v. Caledonian Railroad Co., 17 Sess. Cas. (D) 302, 1 
 Nev. & McN. 27, complaint was made by one who had frequent 
 occasion to travel, that passengers from an intermediate station be- 
 tween Glasgow and Edinburgh were charged much greater rates to 
 those places than were charged to other through passengers between 
 these termini ; but the Scotch Court of Session held that the peti- 
 tioner had not shown any title or interest to maintain the proceeding; 
 his only complaint being that he did not choose that parties travelling 
 from Edinburgh to Glasgow should enjoy the benefit of a cheaper 
 rate of travel than he himself could enjoy. " It provides," said the 
 court, " for giving undue preference to parties pari passu in the 
 matter, but you must bring them into competition in order to give 
 them an interest to complain." This is in substance holding that 
 the allowance of a reduced through rate worked no injustice to 
 passengers living on the line of the road, who were obliged to pay 
 at a greater rate. So in Jones v. Eastern Counties Railway Co., 3 
 C. B. (N. S.) 718, the court refused an injunction to compel a railway 
 company to issue season tickets between Colchester and London 
 upon the same terms as they issued them between Harwich and 
 London, upon the mere suggestion that the granting of the latter, the 
 distance being considerably greater, at a much lower rate than the 
 former, was an undue and unreasonable preference of the inhabitants 
 of Harwich over those of Colchester. Upon the other hand, in Ran- 
 some v. Eastern Counties Railway Co., 1 C. B. (N. S.) 437, where it 
 was manifest that a railway company charged Ipswich merchants, 
 who sent from thence coal which had come thither by sea, a higher 
 rate for the carriage of their coal than it charged Peterboro mer- 
 chants, who had made arrangements with it to carry large quantities 
 over its lines, and that the sums charged the Peterboro merchants were
 
 224 INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. 
 
 fixed so as to enable them to compete with the Ipswich merchants, 
 the court granted an injunction, upon the ground of an undue 
 preference to the Peterboro merchants, the object of the discrimina- 
 tion being to benefit the one dealer at the expense of the other, by 
 depriving the latter of the natural advantages of his position. In 
 Oxlade v. Northeastern Railway Co., 1 C. B. (N. S.) 454, a railway 
 company was held justified in carrying goods for one person for a 
 less rate than that at which they carried the same description of goods 
 for another, if there be circumstances which render the cost of carry- 
 ing the goods for the former less than the cost of carrying them for 
 the latter, but that a desire to introduce northern coke into a certain 
 district was not a legitimate ground for making special agreements 
 with different merchants for the carriage of coal and coke at a rate 
 lower than the ordinary charge, there being nothing to show that the 
 pecuniary interests of the company were affected; and that this was 
 an undue preference. 
 
 In short, the substance of all these decisions is that railway com- 
 panies are only bound to give the same terms to all persons alike 
 under the same conditions and circumstances, and that any fact 
 which produces an inequality of condition and a change of circum- 
 stances justifies an inequality of charge. These traffic acts do not 
 appear to be as comprehensive as our own, and may justify contracts 
 which with us would be obnoxious to the long and short haul clause 
 of the act, or would be open to the charge of unjust discrimination. 
 But, so far as relates to the question of " undue preference," it may 
 be presumed that Congress, in adopting the language of the English 
 act, had in mind the construction given to these words by the Eng- 
 lish courts, and intended to incorporate them into the statute. 
 McDonald v. Hovey, 110 U. S. 619. 
 
 There is nothing in the objection that party rate tickets afford 
 facilities for speculation, and that they would be used by ticket 
 brokers or "scalpers" for the purpose of evading the law. The 
 party rate ticket, as it appears in this case, is a single ticket cover- 
 ing the transportation of 10 or more persons, and would be much less 
 available in the hands of a ticket broker than an ordinary single 
 ticket, since it could only be disposed of to a person who would be 
 willing to pay two thirds of the regular fare for that number of 
 people. It is possible to conceive that party rate tickets may, by a 
 reduction of the number for whom they may be issued, be made the 
 pretext for evading the law, and for the purpose of cutting rates; 
 but should such be the case, the courts would have no difficulty in 
 discovering the purpose for which they were issued, and applying the 
 proper remedy. 
 
 Upon the whole, we are of the opinion that party rate tickets, as 
 used by the defendant, are not open to the objections found by the 
 Interstate Commerce Commission, and are not in violation of the act 
 to regulate commerce, and the decree of the court below is therefore 
 
 Affirmed.
 
 ILWACO R. & N. CO. V. ORECON SHORT LINE & UTAH N. R. 225 
 
 ILWACO RAILWAY & NAVIGATION COMPANY v. OREGON 
 SHORT LINE & UTAH NORTHERN RAILWAY. 
 
 Circuit Court of Appeals, Ninth Circuit, 1S93. 
 
 [57 Fed. 673.] 
 
 McKenna, Circuit Judge. 1 The plaintiff contends that defendant, 
 by preventing it from landing its boats at a wharf owned and used 
 by defendant, discriminates against it, contrary to section 3 of the 
 Interstate Commerce Act. 
 
 The facts are as follows : — 
 
 That prior to the month of August, 1888, the defendant was 
 named the Ilwaco Steam Navigation Company, but in that month it 
 filed supplemental articles of incorporation, changing its name to 
 Ilwaco Railway & Navigation Company, and proceeded to construct 
 a line of railway from a point at or near the town of Ilwaco on the 
 Pacific Ocean, in the State of Washington, to a point on the navi- 
 gable waters of Shoal Water Bay, in Pacific County. That the 
 construction of said railway was commenced before, but completed 
 after, the filing of said supplemental articles. That prior to the 
 construction of said railroad line the defendant owned and operated 
 a line of steamboats between the town of Astoria, Or., and the town 
 of Ilwaco. That the shores of the Pacific Ocean in that vicinity were 
 popular summer resorts during the months of July and August and 
 the first week of September. That prior to 1888 the Oregon Railway 
 & Navigation Company owned the boats and line between Astoria 
 and Portland, Or., which plaintiff now owns, and carried passengers 
 from Portland to Astoria, which were then transferred to plaintiff's 
 boats, and carried to Ilwaco, from whence they went to the ocean 
 beach in wagons. That in the summer season of the years 1888, 
 1889, 1890, and 1891 the Oregon Railway & Navigation Company 
 asked and obtained permission to land its passengers on the wharf 
 at Ilwaco, paying a compensation therefor. That complainant only 
 ran its boats during said summer months, and only while people 
 were travelling to said summer resorts. Said town of Portland, Or., 
 is situated on the Willamette River, about 100 miles inland, easterly 
 from the said city of Astoria, which latter city is situated on the left 
 bank of the Columbia River, and about 12 miles inland from the 
 ocean; and the town of Ilwaco is situated on the right bank of the 
 Columbia River, at a part thereof known as " Baker's Bay," and 
 about 15 miles distant, in a northwesterly direction, from said city 
 of Astoria. That in the year 1892 complainant desired the same 
 privileges, but respondent refused. . . . 
 
 The defendant company was organized for the purpose of construct- 
 ing a transportation route from Astoria, Or., to Shoal Water Bay, 
 
 1 Part of the opinion is omitted. — Ed. 
 15
 
 226 ILWACO R. & N. CO. V. OREGON SHORT LINE & UTAH N. It. 
 
 Wash. Its means of transportation are steamboats and a railroad. 
 The wharf at Ilwaco makes the connection between them, and the 
 continuity of the route. The act contemplates, we think, indepen- 
 dent carriers, capable of mutual relations, and capable of being 
 objects of favor or prejudice. There must be at least two other 
 carriers besides the offending one. For a carrier to prefer itself in its 
 own proper business is not the discrimination which is condemned. 
 
 We do not think that the cases cited by appellee militate with 
 these views, nor do they justify a railroad company combining with 
 its proper business a business not cognate to it, and discriminating 
 in favor of itself, as it might in counsel's illustration of a combina- 
 tion of a railroad company with the Standard Oil Company, or a£ 
 illustrated in the cases of Baxendale v. Great Western Ry. Co., 1 
 Railway & Canal Traffic Cas. 202; Same v. London & S. W. Ry. Co., 
 Id. 231; and Parkinson v, Railway Co., Id. 280. In all these 
 cases the railroad company attempted to discriminate in favor of 
 itself as carrier, separate from its capacity as a railway carrier. We 
 find no difficulty of concurring in these cases, and distinguishing 
 them from the case at bar. It was not to engage in the business of 
 drayman, as Cockburn, C. J., indicates in the first case, that great 
 powers have been given to railway companies, and, if permitted to 
 be so used, might indeed be converted into a means of very grievous 
 oppression. The principle of these cases does not extend to boats 
 owned by railroads, as a part of a continuous line. Nor do we 
 think the case, Indian River Steamboat Co. v. East Coast Transp. 
 Co. (Fla.), 10 South. Rep. 480, sustains complainant. It was a case 
 of discrimination. The action was between two competing steam- 
 boat companies, in favor of one of which a railroad company had 
 discriminated by leasing its wharf. Both companies were indepen- 
 dent of the railroad, and both connecting lines with it. But the 
 court recognized the right of the railroad company and the Indian 
 River Company to build and maintain a wharf, as incidental to their 
 business, saying: " If either company should erect a dock or wharf 
 for its private use, we know of no law to prohibit it." Page 4 '. > 2 . 
 The steamboats were competing lines, and the statutes of Florida 
 regulating railroads provided that no common carriers subject to the 
 provisions should " make any unjust discrimination in the receiving 
 of freight from or the delivery of freight to any competing lines of 
 steamboats in this State." The decision, therefore, was sustained by 
 the laws of the State. The reasoning of the court, beyond this, seems 
 to be in conflict with the Express Cases decided by the Supreme 
 Court of the United States. 117 U. S. 29. 
 
 It is not clear what complainant claims from the second sub- 
 division of section 3, besides what it claims from the first subdivis- 
 ion. The second subdivision is as follows: — 
 
 " Every common carrier subject to the provisions of this act shall, 
 according to their respective ; powers, afford all reasonable, proper,
 
 LITTLE ROCK & MEMPHIS R. V. ST. LOUIS SOUTHWESTERN R. 227 
 
 and equal facilities for the interchange of traflic between their re- 
 spective lines, and for the receiving, forwarding, and delivering of 
 passengers ami property to and from their several lines and those 
 connecting therewith, and shall not discriminate in their rates and 
 charges between such connecting lines; but this shall not be construed 
 as requiring any such common carrier to give the use of its tracks or 
 terminal facilities to another carrier engaged in like business." 
 
 The contention of complainant is not that defendant's facilities 
 are inadequate, but that it is excluded from them. The exclusion, 
 however, only consists in the prevention of the landing of its boats 
 at defendant's wharf. We have probably said enough to indicate our 
 views of this, but we may add that the wharf does not seem to be a 
 public station. It is a convenience, only, in connecting its railroads 
 and boats; the general station being at Ilwaco, where ample facili- 
 ties exist. 
 
 Judgment reversed, and cause remanded for further proceedings. 
 
 LITTLE ROCK & MEMPHIS RAILROAD v. ST. LOUIS 
 SOUTHWESTERN RAILWAY. 
 
 Circuit Court of Appeals, Eighth Circuit, 1894. 
 
 [63 Fed. 775.] 
 
 Thayer, Circuit Judge, delivered the opinion of the court. 
 
 It will be observed that the sole question in the cases filed against 
 the St. Louis, Iron Mountain, & Southern Railway Company concerns 
 the right of that company to require the prepayment of freight 
 charges on all property tendered to it for transportation at Little 
 Rock by the Little Rock & Memphis Railroad Company, while it 
 pursues a different practice with respect to freight received from other 
 shippers at that station. At common law a railroad corporation 
 has an undoubted right to require the prepayment of freight charges 
 by all its customers, or some of them, as it may think best. It has 
 the same right as any other individual or corporation to exact pay- 
 ment for a service before it is rendered, or to extend credit. Oregon 
 Short Line & U. N. Ry. Co. v. Northern Pac. R. Co.. 51 Fed. 465, 
 472. Usually, no doubt, railroad companies find it to their interest, 
 and most convenient, to collect charges from the consignee; but we 
 cannot doubt their right to demand a reasonable compensation in 
 advance for a proposed service, if they see fit to demand it. This 
 common law right of requiring payment in advance of some customers, 
 and of extending credit to others, has not been taken away by the 
 Interstate Commerce Law, unless it is taken away indirectly by the 
 inhibition contained in the third section of the act, which declares 
 that an interstate carrier shall not " subject any particular person,
 
 228 LITTLE ROCK & MEMPHIS R. V. ST. LOUIS SOUTHWESTERN R. 
 
 company, corporation, or locality ... to any undue or unreasonable 
 . . . disadvantage in any respect whatever." This prohibition is 
 very broad, it is true, but it is materially qualified and restricted by 
 the words " undue or unreasonable." One person or corporation may 
 be lawfully subjected to some disadvantage in comparison with others, 
 provided it is not an undue or unreasonable disadvantage. In view 
 of the fact that all persons and corporations are entitled at common 
 law to determine for themselves, and on considerations that are satis- 
 factory to themselves, for whom they will render services on credit, 
 we are not prepared to hold that an interstate carrier subjects another 
 carrier to an unreasonable or undue disadvantage because it exacts of 
 that carrier the prepayment of freight on all property received from 
 it at a given station, while it does not require charges to be paid in 
 advance on freight received from other individuals and corporations 
 at such station. So far as we are aware, no complaint had been made 
 of abuses of this character at the time the Interstate Commerce Law 
 was enacted, and it may be inferred that the particular wrong com- 
 plained of was not within the special contemplation of Congress. 
 This being so, the general words of the statute ought not to be given 
 a scope which will deprive the defendant company of an undoubted 
 common law right, which all other individuals and corporations are 
 still privileged to exercise, and ordinarily do exercise. It is most 
 probable that self-interest — the natural desire of all carriers to secure 
 as much patronage as possible — will prevent this species of dis- 
 crimination from becoming a public grievance so far as individual 
 shippers are concerned; and it is desirable that the courts should 
 interfere as little as possible with those business rivalries existing 
 between railroad corporations themselves, which are not productive 
 of any serious inconvenience to shippers. We think, therefore, that 
 no error was committed in entering the judgment and decree in favor 
 of the St. Louis, Iron Mountain, & Southern Railway Company. 
 
 The complaint preferred against the other companies, to wit, the 
 St. Louis Southwestern and the Little Rock & Ft. Smith Railway 
 Companies, is somewhat different. It consists in the alleged refusal 
 of those companies, — first, to honor through tickets and through 
 bills of lading issued by the complainant company, or to enter into 
 arrangements with it for through billing or through rating; and, sec- 
 ondly, in the alleged refusal of these companies to accept loaded cars 
 coming from the Little Rock & Memphis Railroad, and in their 
 action in requiring freight to be rebilled and reloaded at the two 
 connecting points, to wit, Brinkley and Little Rock. 
 
 Before discussing the precise issue which arises upon this record it 
 will be well to restate one or two propositions that are supported by 
 high authority as well as persuasive reasons, and which do not seem 
 to be seriously controverted even by the complainant's counsel. In 
 the first place, the interstate commerce law does not require an inter- 
 state carrier to treat all other connecting carriers in precisely the
 
 LITTLE ROCK & MEMPHIS R. V. ST. LOUIS SOUTHWESTERN R. 229 
 
 same manner, without reference to its own interests. Some play is 
 given by the act to self-interest. The inhibitions of the third sec- 
 tion of the law, against giving preferences or advantages, are aimed 
 at those which are "undue or unreasonable"; and even that clause 
 which requires carriers "to afford all reasonable, proper, and equal 
 facilities for the interchange of traffic" does not require that such 
 "equal facilities" shall be afforded under dissimilar circumstances 
 and conditions. Moreover, the direction "to afford equal facilities 
 for an interchange of traffic " is controlled and limited by the proviso 
 that this clause "shall not be construed as requiring a carrier to give 
 the use of its tracks or terminal facilities to another carrier." Ken- 
 tucky & I. Bridge Co. v. Louisville & N. R. Co., 37 Fed. 571; Ore- 
 gon Short Line & U» N. Ry. Co. v. Northern Pac. R. Co., 51 Fed. 
 465, 473. In the second place, it has been held that neither by the 
 common law nor by the interstate commerce law have the national 
 courts been vested with jurisdiction to compel interstate carriers to 
 enter into arrangements or agreements with each other for the through 
 billing of freight, and for joint through rates. Agreements of this 
 nature, it is said, under existing laws, depend upon the voluntary 
 action of the parties, and cannot be enforced by judicial proceedings 
 without additional legislation. Little Rock & M. R. Co. v. East 
 Tennessee, V. & G. R. Co., 3 Interst. Commerce Com. R. 1, 16, 17; 
 Little Rock & M. R. Co. v. St. Louis, I. M. & S. Ry. Co., 41 Fed. 
 559, and cases there cited by Judge Caldwell. Furthermore, it has 
 been ruled by Mr. Justice Field in the case of the Oregon Short Line 
 & U. N. Ry. Co. v. Northern Pac. R. Co., 51 Fed. 465, 474, that t he- 
 third section of the Interstate Commerce Act does not require an 
 interstate carrier to receive freight in the cars in which it is tendered 
 by a connecting carrier, and to transport it in such cars, paying a 
 mileage rate thereon, when it has cars of its own that are available 
 for the service, and the freight will not be injured by transfer. It 
 should be remarked in this connection that the bills on file in the 
 present cases, as well as the petitions in the law cases, fail to dis- 
 close whether the offending companies have refused to receive freight 
 in the cars in which it was tendered to them, even when it would 
 injure the freight to transfer it, or when they had no cars of their 
 own that were immediately available to forward it to its destination. 
 Neither do the bills or the petitions disclose whether, in tendering 
 freight in cars to be forwarded, the complainant company demanded 
 the payment of the usual wheelage on the cars, or tendered the use of 
 the same free, for the purpose of forwarding the freight to its desti- 
 nation. The allegations of a refusal to receive freight in cars are 
 exceedingly general, and convey no information on either of the 
 points last mentioned. 
 
 As we have before remarked, the several propositions above stated 
 do not seem to be seriously questioned. It is urged, however, in 
 substance, that although the court may be powerless to make and
 
 230 LITTLE ROCK & MEMPHIS R. V. ST. LOUIS SOUTHWESTERN R. 
 
 enforce agreements between curriers for through billing and through' 
 rating, and for the use of each other's cars, tracks, and terminal 
 facilities, yet that when a carrier, of its own volition, enters into an 
 agreement of that nature with another connecting carrier, the law 
 commands it to extend " equal facilities " to all other connecting 
 carriers, if the physical connection is made at or about the same 
 place, and the physical facilities for an interchange of traffic are the 
 same, and that this latter duty the courts may and should enforce. 
 It will be observed that the proposition contended for, if sound, will 
 euable the courts to do indirectly what it is conceded they cannot do 
 directly. It authorizes them to put in force between two carriers an 
 arrangement for an interchange of traffic that may be of great finan- 
 cial importance to both, which could neither be established nor en- 
 forced by judicial decree, except for the fact that one of the parties 
 had previously seen fit to make a similar arrangement with some 
 other connecting carrier, It may be, also, that the arrangement thus 
 forced upon the carrier would be one in which the public at large 
 have no particular concern, because the equal facilities demanded by 
 the complainant carrier would be of no material advantage to the 
 general public, and would only be a benefit to the complainant. 
 
 Another necessary result of the doctrine contended for is that it 
 deprives railway carriers, in a great measure, of the management and 
 control of their own property, by destroying their right to determine 
 for themselves what contracts and traffic arrangements with connect- 
 ing carriers are desirable and what are undesirable. There ought to 
 be a clear authority found in the statute for depriving a carrier of 
 this important right before the authority is exercised, for, when 
 questions of that nature have to be solved, a great variety of com- 
 plex considerations will present themselves, some of which can 
 neither be foreseen nor stated. A railroad having equal facilities at 
 a given point for forming a physical connection with a number of 
 connecting carriers might find it exceedingly beneficial to enter into 
 an arrangement with one of them, having a long line and important 
 connections, for through billing and rating, and for the use of each 
 other's cars and terminal facilities, while it would find it exceedingly 
 undesirable and unprofitable to enter into a similar arrangement with 
 a shorter road, which could offer nothing in return. Or the case 
 might be exactly the reverse. {The shorter, and at the time the less 
 important road, might be able to present sound business reasous 
 which would make an arrangement with it, of the kind above indi- 
 cated, more desirable than with the longer line. Furthermore, if it 
 be the law that an arrangement for through billing and rating with 
 one. carrier necessitates a like arrangement with others, this might 
 be a controlling influence in determining a railway company to refuse 
 to enter into such an arrangement with any connecting carrier. In 
 view of these considerations, we are unable to adopt a construction 
 of the Interstate Commerce Act which will practically compel a car-
 
 LITTLE EOCK & MEMPHIS K. V. ST. LOUIS SOUTHWESTERN R. 231 
 
 rier, when it enters into an arrangement with one carrier for through 
 billing and rating and for the use of its tracks and terminals, to 
 make the same arrangement with all other connecting carriers, if the 
 physical facilities for an interchange of traflic are the same, and to 
 do this without reference to the question whether the enforced 
 arrangement is or is not of any material advantage to the public. 
 
 In two of the cases heretofore cited (Kentucky & I. Bridge Co. v. 
 Louisville & N. R. Co., and Oregon Short Line & U. N. Ry. Co. v. 
 Northern Pac. R. Co.), it was held that the charge of undue or unrea- 
 sonable discrimination cannot be predicated on the fact that a rail- 
 road company allows one connecting carrier to make a certain use of 
 its tracks or terminals, which it does not concede to another. This 
 conclusion was reached as the necessary result of the final clause of 
 the third section of the Interstate Commerce Law, above quoted, to 
 the effect that the second paragraph of the third section shall not be 
 so construed as to require a carrier to give the use of its tracks or 
 terminals to another company. Railroads are thus left by the com- 
 merce act to exercise practically as full control over their tracks and 
 terminals with reference to other carriers as they exercised at com- 
 mon law. The language of Mr. Justice Field in that behalf was 
 as follows: — 
 
 " It follows from this . . . that a common carrier is left free to 
 enter into arrangements for the use of its tracks or terminal facili- 
 ties, with one or more connecting lines, without subjecting itself to 
 the charge of giving undue or unreasonable preferences or advan- 
 tages to such lines, or of unlawfully discriminating against other car- 
 riers. In making arrangements for such use by other companies, a 
 common carrier will be governed by considerations of what is best 
 for its own interests. The act does not purport to divest the railway 
 carrier of its exclusive right to control its own affairs, except in the 
 specific particulars indicated." 51 Fed. 474, 475. 
 
 Furthermore, it is the settled construction of the act, as we have 
 before remarked, that it does not make it obligatory upon connecting 
 carriers to enter into traffic arrangements for through billing and rat- 
 ing either as to passenger or freight traffic. This conclusion has 
 been reached by all of the tribunals who have had occasion to con- 
 sider the subject, and it is based on the fact that, in enacting the 
 commerce act, Congress did not see fit to adopt that provision of the 
 English Railway and Canal Traffic Act, passed in 1873, which ex- 
 pressly empowered the English commissioners to compel connecting 
 carriers to put in force arrangements for through billing and through 
 rating when they deemed it to the interest of the public that such 
 arrangements should be made. Little Rock & M. R. Co. v. East 
 Tennessee, V. & G. R. Co., 3 Interst. Commerce Com. R., 1, 9, 10; 
 Kentucky & I. Bridge Co. v. Louisville & N. R. Co., 37 Fed. 567 v 
 630, 631. See also the second annual report of the Interstate Com- 
 merce Commission (2 Interst. Commerce Com. R., 510, 511). In the
 
 232 LITTLE ROCK & MEMPHIS K. V. ST. LOUIS SOUTHWESTERN R. 
 
 light of these adjudications, we are compelled to conclude that, if the 
 charge of an unreasonable discrimination cannot be successfully 
 predicated on the ground that a railway company makes an arrange- 
 ment with one connecting carrier for the use of its tracks and termi- 
 nals, which it refuses to make with another although the physical 
 facilities for an interchange of traffic are the same, then the charge 
 of discrimination cannot be predicated on the grouud that it makes 
 an arrangement for through billing and rating with one carrier, and 
 does not make it with another. The Interstate Commerce Act does 
 not, it seems, at present, make it obligatory on carriers to make 
 arrangements of either sort, and does not give the commission power 
 to compel such arrangements, but leaves connecting carriers, as at 
 common law, to determine for themselves when such arrangements 
 are desirable, and when undesirable. Moreover, arrangements for 
 through billing and rating will, as a general rule, necessarily involve 
 an agreement for the use, to some extent, of each other's terminals 
 and tracks; and, by the express language of the statute, such use 
 cannot be enforced without the consent of the owner. We are un- 
 willing, therefore, as the law now stands, to compel the defendant 
 companies to afford the facilities which the complainant demands. 
 As was said by Mr. Justice Jackson, then Circuit Judge, in the case 
 to which we have already referred: — ■ 
 
 " The law should be as liberally construed in favor of commerce 
 among the States as its language will permit; but, when complaint is 
 made or relief is sought solely or mainly in the interest of the com- 
 mon carriers engaged in the transportation of such commerce, the act 
 complained of or the right asserted should not rest upon any doubt- 
 ful construction, but should clearly appear to have been forbidden or 
 conferred." 
 
 We are also forced to conclude that if the public interest requires 
 that interstate carriers shall be compelled to put in force arrange- 
 ments for through billing and rating, and for the establishment of 
 joint through lines, the statute should be made more explicit, and 
 that the commission should be empowered to prescribe the terms of 
 such arrangements upon a comprehensive view of the circumstances 
 of each particular case. 
 
 Some allusion was made in the argument to a provision found in 
 the. constitution of the State of Arkansas (article 17, § 1), as hav- 
 ing some bearing on the questions discussed in these cases; but as 
 the bills and petitions filed are plainly founded on the Interstate 
 Jommerce Law, and thus involve a federal question arising under 
 that act, and as there is no jurisdiction arising from diverse citizen- 
 ship, we have not felt called upon to consider or decide the proposi- 
 tion founded upon the constitution of the State. In view of what 
 has been said, the several decrees and judgments are hereby affirmed.
 
 CIN., NEW ORL., & TEX. PAC. R. V. INTERSTATE COMMERCE COM. 233 
 
 CINCINNATI, NEW ORLEANS, & TEXAS PACIFIC RAIL- 
 WAY v. INTERSTATE COMMERCE COMMISSION. 
 
 Supreme Court of the United States, 1896. 
 
 [162 U. S. 184.] 
 
 Mr. Justice Siiiras delivered the opinion of the court. 
 
 The investigation before the Interstate Commerce Commission 
 resulted in an order in the following terms: — 
 
 " It is ordered and adjudged that the defendants, the Cincinnati, 
 New Orleans, & Texas Pacific Railway Company, the Western & 
 Atlantic Railroad Company, and the Georgia Railroad Company do, 
 upon and after the 20th day of July, 1891, wholly cease and desist 
 from charging or receiving any greater compensation, in the aggre- 
 gate, for the transportation in less than car loads of buggies, car- 
 riages, and other articles classified by them as freight of first class, 
 for the shorter distance over the line formed by their several rail- 
 roads from Cincinnati, in the State of Ohio, to Social Circle, in the 
 State of Georgia, than they charge or receive for the transportation 
 of said articles in less than car loads for the longer distance over the 
 same line from Cincinnati aforesaid to Augusta, in the State of 
 Georgia, and that the said defendants, the Cincinnati, New Orleans, 
 & Texas Pacific Railway Company, do also, from and after the 20th 
 day of July, 1891, wholly cease and desist from charging or receiv- 
 ing any greater aggregate compensation for the transportation of 
 buggies, carriages, and other first-class articles, in less than car 
 loads, from Cincinnati aforesaid to Atlanta, in the State of Georgia, 
 than one dollar per hundred pounds." 
 
 The decree of the Circuit Court of Appeals, omitting unimportant 
 details, was as follows : — 
 
 " It is ordered, adjudged, and decreed . . . that this cause be 
 remanded to the Circuit Court, with instructions to enter a decree in 
 favor of the complainant, the Interstate Commerce Commission, and 
 against the defendants, the Cincinnati, New Orleans, & Texas Pa- 
 cific Railway Company, the Western & Atlantic Railroad Company, 
 and the Georgia Railroad Company, commanding and restraining the 
 said defendants, their officers, servants, and attorneys, to cease and 
 desist from making any greater charge, in the aggregate, on buggies, 
 carriages, and on all other freight of the first class carried in less 
 than car loads from Cincinnati to Social Circle, than they charge on 
 such freight from Cincinnati to Augusta; that they so desist and 
 refrain within five days after the entry of the decree; and in case 
 they, or any of them, shall fail to obey said order, condemning the 
 said defendants, and each of them, to pay one hundred dollars a day 
 for every day thereafter they shall so fail; and denying the relief 
 prayed for in relation to charges on like freight from Cincinnati to 
 Atlanta."
 
 234 CIN., NEW ORL., & TEX. PAC. R. V. INTERSTATE COMMERCE COM. 
 
 It will be observed that in its said decree the Circuit Court of 
 Appeals adopted that portion of the order of the commission which 
 commanded the defendants to make no greater charge on freight car- 
 ried to Social Circle than on like freight carried to Augusta, and 
 disapproved and annulled that portion which commanded the Cin- 
 cinnati, New Orleans, & Texas Pacific Railway Company and the 
 Western & Atlantic Railroad Company to desist from charging for 
 the transportation of freight of like character from Cincinnati to 
 Atlanta more than $1 per 100 pounds. 
 
 The railroad companies, in their appeal, complain of the decree of 
 the Circuit Court of Appeals in so far as it affirmed that portion of 
 the order of the commission which affected the rates charged to 
 Social Circle. The commission, in its appeal, complains of the de- 
 cree, in that it denies the relief prayed for in relation to charges on 
 freight from Cincinnati to Atlanta. 
 
 The first question that we have to consider is whether the defend- 
 ants, in transporting property from Cincinnati to Social Circle, are 
 engaged in such transportation " under a common control, manage- 
 ment, or arrangement for a continuous carriage or shipment," within 
 the meaning of that language, as used in the act to regulate 
 commerce. 
 
 We do not understand the defendants to contend that the arrange- 
 ment whereby they cany commodities from Cincinnati to Atlanta and 
 to Augusta at through rates which differ in the aggregate from the aggre- 
 gate of the local rates between the same points, and which through rates 
 are apportioned between them in such a way that each receives a less 
 sum than their respective local rates, does not bring them within the 
 provisions of the statute. What they do claim is that, as the charge 
 to Social Circle, being $1.37 per hundred pounds, is made up of a joint 
 rate between Cincinnati and Atlanta, amounting to $1.07 per hundred 
 pounds, and 30 cents between Atlanta and Social Circle, and as the $1.07 
 for carrying the goods to Atlanta is divided between the Cincinnati, New 
 Orleans, and Texas Pacific and the Western and Atlantic, 75-j^ cents to 
 the former and 31-^ cents to the latter, and the remaining 30 cents, being 
 the amount of the regular local rate, goes to the Georgia company, 
 such a method of carrying freight from Cincinnati to Social Circle and 
 of apportioning the mone}' earned, is not a transportation of property 
 between those points " under a common control, management, or ar- 
 rangement for a continuous carriage or shipment." 
 
 Put in another way, the argument is that, as the Georgia Railroad 
 Company is a corporation of the State of Georgia, and as its road 
 lies wholly within that State, and as it exacts and receives its regular 
 local rate for the transportation to Social Circle, such company is 
 not, as to freight so carried, within the scope of the act of Congress. 
 
 It is, no doubt, true that, under the very terms of the act, its pro- 
 visions do not apply to the transportation of passengers or property, or 
 to the receiving, delivering, storage, or handling of property wholly
 
 CIN., NEW ORL., & TEX. PAC. E. V. INTERSTATE COMMERCE COM. 205 
 
 within one State, not shipped to or from a foreign country from or to 
 any State or Territory. 
 
 In the answer filed by the so-called " Georgia Railroad Company " 
 in the proceedings before the commission, there was the following 
 allegation: " This respondent says that while no arrangement exists 
 for a through bill of lading from Cincinnati to Social Circle, as a 
 matter of fact the shipment from Cincinnati to Social Circle by the 
 petitioner was made on a through bill of lading, the rate of which 
 was fixed by adding this respondent's local rate from Atlanta to 
 Social Circle to the through rate from Cincinnati to Atlanta." 
 
 The answer of the Louisville & Nashville Railroad Company and 
 Central Railroad & Banking Company of Georgia, which companies, 
 as operating the Georgia railroads, were sued by the name of the 
 " Georgia Railroad Company," in the Circuit Court of the United 
 States, contained the following statement: — 
 
 " So far as these respondents are concerned, they will state that 
 on July 3, 1891, E. R. Dorsey, general freight agent of said Georgia 
 Railroad Company, issued a circular to its connections, earnestly 
 requesting them that thereafter, in issuing bills of lading to local 
 stations on the Georgia Railroad, no rates be inserted east of At- 
 lanta, except to Athens, Gainesville, Washington, Milledgeville, 
 Augusta, or points beyond. Neither before nor since the date of 
 said circular have these respondents, operating said Georgia Rail- 
 road, been in any way parties to such through rates, if any, as may 
 have been quoted, from Cincinnati or other Western points to any of 
 the strictly local stations on said Georgia Railroad. The stations 
 excepted in said circular are not strictly local stations. Both be- 
 fore and since the date of said circular respondents have received at 
 Atlanta east-bound freight destined to strictly local stations on the 
 Georgia Railroad, and have charged full local rates to such stations, 
 said rates being such as they were authorized to charge by the 
 Georgia Railroad commission. Said rates are reasonably low, and 
 are charged to all persons alike, without discrimination." 
 
 Upon this part of the case the conclusion of the Circuit Court was 
 that the traffic from Cincinnati to Social Circle, in issue as to the 
 Georgia Railroad Company, was local, and that that company was 
 not, on the facts presented, made a party to a joint or common 
 arrangement such as make the traffic to Social Circle subject to the 
 control of the Interstate Commerce Commission. 
 
 We are unable to accept this conclusion. It may be true that the 
 Georgia Railroad Company, as a corporation of the State of Georgia, 
 and whose entire road is within that State, may not be legally com- 
 pelled to submit itself to the provisions of the act of Congress, even 
 when carrying, between points in Georgia, freight that has been 
 brought from another State. It may be that if, in the present case, 
 the goods of the James & Mayer Buggy Company had reached At- 
 lanta, and there and then, for the first time, and independently of
 
 236 CIN., NEW ORL., & TEX. PAC. R. V. INTERSTATE COMMERCE COM. 
 
 any existing arrangement with the railroad companies that had trans- 
 ported them thither, the Georgia Railroad Company was asked to 
 transport them, whether to Augusta or to Social Circle, that com- 
 pany could undertake such transportation free from the control of 
 any supervision except that of the State of Georgia. But when the 
 Georgia Railroad Company enters into the carriage of foreign freight, 
 by agreeing to receive the goods by virtue of foreign through bills of 
 lading, and to participate in through rates and charges, it thereby 
 becomes part of a continuous line, not made by a consolidation with 
 the foreign companies, but made by an arrangement for the continu- 
 ous carriage or shipment from one State to another, and thus becomes 
 amenable to the federal act, in respect to such interstate commerce. 
 We do not perceive that the Georgia Railroad Company escaped from 
 the supervision of the commission by requesting the foreign com- 
 panies not to name or fix any rates for that part of the transporta- 
 tion which took place in the State of Georgia when the goods were 
 shipped to local points on its road. It still left its arrangement to 
 stand with respect to its terminus at Augusta and to other desig- 
 nated points. Having elected to enter into the carriage of interstate 
 freights, and thus subjected itself to the control of the commission, 
 it would not be competent for the company to limit that control, in 
 respect to foreign traffic, to certain points on its road, and exclude 
 other points. 
 
 The Circuit Court sought to fortify its position in this regard by 
 citing the opinion of Mr. Justice Brewer in the case of Chicago & 
 Northwestern Railroad v. Osborne, 10 U. S. App. 430, when that 
 case was before the United States Circuit Court of Appeals for the 
 Eighth Circuit. It is quite true that the opinion was expressed 
 that a railroad company incorporated by and doing business wholly 
 within one State cannot be compelled to agree to a common control, 
 management, or arrangement with connecting companies, and thus be 
 deprived of its rights and powers as to rates on its own road. It 
 was also said that it did not follow that, even if such a State corpo- 
 ration did agree to form a continuous line for earning foreign 
 freight at a through rate, it was thereby prevented from charging 
 its ordinary local rates for domestic traffic originating within the 
 State. 
 
 Thus understood, there is nothing in that case which we need dis- 
 agree with, in disapproving the Circuit Court's view in the present 
 case. All we wish to be understood to hold is that when goods are 
 shipped under a through bill of lading from a point in one State to a 
 point in another, are received in transit by a State common carrier, 
 under a conventional division of the charges, such carrier must be 
 deemed to have subjected its road to an arrangement for a continuous 
 carriage or shipment, within the meaning of the act to regulate com- 
 merce. When we speak of a " through bill of lading," we are refer- 
 ring to the usual method in use by connecting companies, and must
 
 CIN., NEW ORL., & TEX. PAC. E. V. INTERSTATE COMMERCE COM. 237 
 
 not be understood to imply that a common control, management, or 
 arrangement might not be otherwise manifested. 
 
 Subject, then, as we hold the Georgia Railroad Company is, under 
 the facts found, to the provisions of the act to regulate commerce, in 
 respect to its interstate freight, it follows, as we think, that it was 
 within the jurisdiction of the commission to consider whether the 
 said company, in charging a highe? rate for a shorter than for a 
 longer distance over the same line, in the same direction, the shorter 
 being included within the longer distance, was or was not transport- 
 ing property, in transit between States, under " substantially similar 
 circumstances and conditions." 
 
 We do not say that under no circumstances and conditions would 
 it be lawful, when engaged in the transportation of foreign freight, 
 for a canier to charge more for a shorter than a longer distance on 
 its own line; but it is for the tribunal appointed to enforce the pro- 
 visions of the statute, whether the commission or the court, to ('(in- 
 sider whether the existing circumstances and conditions were or were 
 not substantially similar. 
 
 It has been forcibly argued that iu the present case the commission 
 did not give due weight to the facts that tended to show that the cir- 
 cumstances and conditions were so dissimilar as to justify the rates 
 charged. l>ut the question was one of fact, peculiarly within the 
 province of the commission, whose conclusions have been accepted 
 and approved by the Circuit Court of Appeals, and we find nothing 
 in the record to make it our duty to draw a different conclusion. 
 
 We understand the record as disclosing that the commission, in 
 view of the circumstances and conditions in which the defendants 
 were operating, did not disturb the rates agreed upon, whereby the 
 same charge was made to Augusta as to Atlanta, — a less distant 
 point. Some observations made by the commission, in its report, 
 on the nature of the circumstances and conditions which would jus- 
 tify a greater charge for the shorter distance, gave occasion for an 
 interesting discussion by the respective counsel. But it is not neces- 
 sary for us, in the present case, to express any opinion on a subject 
 so full of difficulty. 
 
 These views lead to an affirmance of the decree of the Circuit 
 Court of Appeals, in so far as the appeal of the defendant companies 
 is concerned, and we are brought to a consideration of the appeal by 
 the Interstate Commerce Commission. 
 
 That appeal presents the question whether the Circuit Court of 
 Appeals erred in its holding in respect to the action of the Interstate 
 Commerce Commission, in fixing a maximum rate of charges for the 
 transportation of freight of the first class in less than car loads from 
 Cincinnati to Atlanta. 
 
 This question may be regarded as twofold, and is so presented in 
 the assignment of error filed on behalf of the commission, namely: 
 Did the court err in not holding that in point of law the Interstate
 
 238 CIN., NEW ORL., & TEX. PAC. R. V. INTERSTATE COMMERCE COM. 
 
 Commerce Commission bad power to fix a maximum rate? and, if 
 such power existed, did the court err in not holding that the evi- 
 dence justified the rate fixed by the commission, and not decreeing 
 accordingly ? 
 
 It is stated by the commission, in its report, that " the only testi- 
 mony offered or heard as to the reasonableness of the rate to Atlanta 
 in question was that of the Vice-President of the Cincinnati, New 
 Orleans, & Texas Pacific Company, whose deposition was taken at 
 the instance of the company." And in acting upon the subject the 
 commission say : — 
 
 " This statement or estimate of the rate from Cincinnati to Atlanta 
 ($1.01 per hundred pounds in less than car loads), we believe, is fully 
 as high as it may reasonably be, if not higher than it should be; but, 
 without more thorough investigation than it is now practicable to 
 make, we do not feel justified in determining upon a more moderate 
 rate than $1 per hundred pounds of first-class freight in less than car 
 loads. The rate on this freight from Cincinnati to Birmingham, 
 Alabama, is 89 cents, as compared with $1.07 to Atlanta, the dis- 
 tances being substantially the same. There is apparently nothing in 
 the nature and character of the service to justify such difference, or 
 in fact to warrant an} 7 substantial variance in the Atlanta and Bir- 
 mingham rate from Cincinnati." 
 
 But when the commission filed its petition in the Circuit Court of 
 the United States, seeking to enforce compliance with the rate of $1 
 per 100 pounds, as fixed by the commission, the railroad companies, 
 in their answers, alleged that " the rate charged to Atlanta, namel}-, 
 $1.07 per hundred pounds, was fixed by active competition between 
 various transportation lines, and was reasonably low." 
 
 Under this issue evidence was taken, and we learn from the opin- 
 ion of the Circuit Court that, as to the rate to Birmingham, there was 
 evidence before the court which evidently was not before the com- 
 mission, namely, that the rate from Cincinnati to Birmingham, which 
 seems previously to have been $1.08, was forced down to 89 cents by 
 the building of the Kansas City, Memphis, & Birmingham Railroad, 
 which new road caused the establishment of a rate of 75 cents from 
 Memphis to Birmingham, and, by reason of water route to the North- 
 west, such competition was brought about that the present rate of 89 
 cents from Cincinnati to Birmingham was the result. 
 
 "Without stating the reasoning of the Circuit Court, which will be 
 found in the report of the case in 64 Fed. 981, the conclusion reached 
 was that the evidence offered in that court was sufficient to overcome 
 any prima facie case that may have been made by the findings of the 
 commission, and that the rate complained of was not unreasonable. 
 
 As already stated, the Circuit Court of Appeals adopted the views 
 of the Circuit Court in respect to the reasonableness of the rate 
 charged on first-class freight carried on defendants' line from Cin- 
 cinnati to Atlanta; and, as both courts found the existing rate to
 
 CIN., NEW ORL., & TEX. PAC. E. V. INTERSTATE COMMERCE COM. 239 
 
 have been reasonable, we do not feel disposed to review their finding 
 on that matter of fact. 
 
 We think this a proper occasion to express disapproval of such a 
 method of procedure on the part of the railroad companies as should 
 lead them to withhold the larger part of their evidence from the com- 
 mission, and first adduce it in the Circuit Court. The commission is 
 an administrative board, and the courts are only to be resorted to 
 when the commission prefers to enforce the provisions of the statute 
 by a direct proceeding in the court, or when the orders of the coin- 
 mission have been disregarded. The theory of the act evidently is, 
 as shown by the provision, that the findings of the commission shall 
 be regarded as prima facie evidence, that the facts of the case are to 
 be disclosed before the commission. We do not mean, of course, 
 that either party, in a trial in the court, is to be restricted to the 
 evidence that was before the commission, but that the purposes of the 
 act call for a full inquiry by the commission into all the circumstances 
 and conditions pertinent to the questions involved. 
 
 Whether Congress intended to confer upon the Interstate Commerce 
 Commission the power to itself fix rates was mooted in the courts 
 below, and is discussed in the briefs of counsel. 
 
 We do not find any provision of the act that expressly, or by 
 necessary implication, confers such a power. 
 
 It is argued on behalf of the commission that the power to pass 
 upon the reasonableness of existing rates implies a right to prescribe 
 rates. This is not necessarily so. The reasonableness of the rate, 
 in a given case, depends on the facts, and the function of the com- 
 mission is to consider these facts and give them their proper weight. 
 If the commission, instead of withholding judgment in such a matter 
 until an issue shall be made and the facts found, itself fixes a rate, 
 that rate is prejudged by the commission to be reasonable. 
 
 We prefer to adopt the view expressed by the late Justice Jackson, 
 when Circuit Judge, in the case of Interstate Commerce Commission 
 v. Baltimore & Ohio Railroad Co., 43 Fed. 37, aud whose judgment 
 was affirmed by this court, 145 U. S. 263 : — 
 
 " Subject to the two leading prohibitions that their charges shall 
 not be unjust or unreasonable, and that they shall not unjustly dis- 
 criminate, so as to give undue preference or disadvantage to persons 
 or traffic similarly circumstanced, the act to regulate commerce leaves 
 common carriers as they were at the common law, — free to make 
 special contracts looking to the increase of their business, to classify 
 their traffic, to adjust and apportion their rates so as to meet the 
 necessities of commerce, and generally to manage their important 
 interests upon the same principles which are regarded as sound, and 
 adopted in other trades and pursuits." 
 
 The decree of the Circuit Court of Appeals is affirmed.
 
 240 TEXAS & PACIFIC K. V. INTEKSTATE COMMERCE COM. 
 
 TEXAS & PACIFIC RAILWAY v. INTERSTATE 
 COMMERCE COMMISSION. 
 
 Supreme Court of the United States, 1896. 
 [162 U. S. 197.] 
 
 The object of the bill was to compel the defendant company to 
 obey an order of the Interstate Commerce Commission. 1 . . . 
 
 It appears by the bill that, on March 23, 1889, the commission, 
 of its own motion and without a hearing of the parties to be affected, 
 had made a certain order wherein, among other things, it was pro- 
 vided as follows: — 
 
 " Imported traffic transported to any place in the United States 
 from a port of entry or place of reception, whether in this country or 
 in an adjacent foreign country, is required to be taken on the inland 
 tariff governing other freights." 2 Interst. Commerce Com. R. 658. 
 
 Subsequently complaint was made to the Interstate Commerce 
 Commission, in a petition filed by the New York Board of Trade 
 and Transportation, that certain railroad companies were disregard- 
 ing said order, . . . among them the Texas & Pacific Railway Com- 
 pany, the defendant in the present case. . . . 
 
 The answer of the Texas & Pacific Railway Company, admitting 
 that, both before and since March 23, 1889, it had carried imported 
 traffic at lower rates than it contemporaneously charged for like traffic 
 originating in the United States, justified by claiming that through 
 shipments from a foreign country to the interior of the United States 
 differ in circumstances and conditions from shipments originating at 
 the American seaboard bound for the same interior points, and that 
 defendant company has a legal right to accept for its share of the 
 through rate a lower sum than it receives for domestic shipment to 
 the same destination from the point at which the imported traffic 
 enters this country. 
 
 The result of the hearing before the Interstate Commerce Commis- 
 sion was, so far as the present case is concerned, that the commis- 
 sion held that the Texas & Pacific Railway Company was not justified 
 in accepting, as its share of a through rate on imported traffic, a less 
 charge or sum than it charged and received for inland traffic between 
 the port of reception and the point of delivery, and the said order of 
 January 29, 1891, commanding that said company desist from dis- 
 tinguishing in its charges between foreign and inland traffic, was 
 made. 4 Interst. Commerce Com. R. 447. 
 
 As the Texas & Pacific Railway Company declined to observe said 
 order, the commission filed its present bill against said company in 
 the Circuit Court of the United States for the Southern District of 
 New York. 
 
 1 The statement of facts is much condensed, and part of the opinion is omitted. — 
 Ed.
 
 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 241 
 
 Mr. Justice Siiiras delivered the opinion of the court. 
 
 The answer of the Texas & Pacific Railway Company to the peti- 
 tion of the New York Board of Trade and Transportation before the 
 Interstate Commerce Commission, and the answer of said company 
 to the petition of the commission filed in the Circuit Court, allege: 
 That rates for the transportation of commodities from Liverpool and 
 London, England, to San Francisco, Cal., are in effect fixed and 
 controlled by the competition of sailing vessels for the entire dis- 
 tance: by steamships and sailing vessels in connection with railroads 
 across the Isthmus of Panama; by steamships and sailing vessels 
 from Europe to New Orleans, connecting these, under through ar- 
 rangements with the Southern Pacific Company, to San Francisco. 
 That, unless the defendant company charges substantially the rates 
 specified in its answer, it would be prevented, by reason of the com- 
 petition afore3aid, from engaging in the carrying and transportation 
 of property and import traffic from Liverpool and London to San 
 Francisco, and would lose the revenue derived by it therefrom, which 
 is considerable, and important and valuable to said company. That 
 the rates charged by it are not to the prejudice or disadvantage of 
 New Orleans, and work no injury to that community, because, if 
 said company is prevented from participating in said traffic, such 
 traffic would move via the other routes and lines aforesaid without 
 benefit to New Orleans, but, on the contrary, to its disadvantage. 
 That the foreign or import traffic is upon orders by persons, firms, 
 and corporations in San Francisco and vicinity, buying direct of first 
 hands in London, Liverpool, and other European markets; and, if 
 the order of the commission should be carried into effect, it would 
 not result in discontinuance of that practice or in inducing them to 
 buy in New Orleans in any event. That the result of the order would 
 he to injuriously affect the defendant company in the carriage of 
 articles of foreign imports to Memphis, St. Louis, Kansas City, and 
 other Missouri River points. That by such order the defendant com- 
 pany would be prevented from competing for freight to important 
 points in the State of Texas with the railroad system of that State, 
 having Galveston as a receiving port, and which railroad system is 
 not subject to the control of the Interstate Commerce Commission. 
 These allegations of the answer were not traversed or denied by 
 the commission, but are confirmed by the findings of the commis- 
 sion attached as an exhibit to the petition in the case; and by said 
 findings it further appears that the proportion the Texas & Pacific 
 Railway receives of the through rate is remunerative; that the pre- 
 ponderance of its empty cars go north during eight months of the 
 year, and if something can be obtained to load, it is that much 
 found, and anything is regarded as remunerative that can be ob- 
 tained to put in its cars to pay mileage: that the competition which 
 controls the making of rates to the Pacific coast is steamship by way 
 of the Isthmus and in cheap heavy goods around Cape Horn; that 
 
 16
 
 242 TEXAS & PACIFIC E. V. INTERSTATE COMMERCE COM. 
 
 the competition to interior points, such as Missouri River points and 
 Denver, is from the trunk lines direct from the Atlantic seaboard; 
 that the ships engaged in carrying to San Francisco around Cape 
 Horn are almost wholly British bottoms; that the through bill of lad- 
 ing furnishes a collateral for the transaction of business, takes from 
 the shipper and consignee both the care as to intermediate charges, 
 elevators, wharves, and cost of handling, and puts it on the carrier, 
 reduces the intermediate charges, very much facilitates the transac- 
 tion of business, and helps to swell its volume; that the tendency of 
 the through bill of lading is to eliminate the obstacles between the 
 producer and consumer, and it has done much in that direction. 
 
 These and other uncontroverted facts that appear in this record 
 would seem to constitute " circumstances and conditions" worthy of 
 consideration, when carriers are charged with being guilty of unjust 
 discrimination, or of giving unreasonable and undue preference or 
 advantage to any person or locality. 
 
 But we understand the view of the commission to have been that 
 it was not competent for the commission to consider such facts; that 
 it was shut up, by the terms of the act of Congress, to consider only 
 such " circumstances and conditions" as pertained to the articles of 
 traffic after they had reached and been delivered at a port of the 
 United States or Canada. 
 
 It is proper that we should give the views of the commission in its 
 own words : — 
 
 " The statute has provided for the regulation of interstate traffic 
 by interstate carriers, partly by rail, and partly by water, or all rail, 
 shipped from one point in the United States to another destination 
 within the United States, or from a point of shipment in the United 
 States to a port of entry within the United States or an adjacent 
 foreign country, or from a port of entry either within the United 
 States or in an adjacent foreign country, on import traffic brought to 
 such port of entry from a foreign port of shipment and destined to a 
 place within the United States. In providing for this regulation, 
 the statute has also provided for the methods of such regulation by 
 publication of tariffs of rates and charges at points where the freight 
 is received, and at which it is delivered, and also for taking into 
 consideration the circumstances and conditions surrounding the trans- 
 portation of the property. The statute has undertaken no such regu- 
 lation from foreign ports of shipment to ports of entry either within 
 the United States or to ports of entry in an adjacent foreign country, 
 and, as between these ports, has provided for no publication of 
 tariffs of rates and charges, but has left it to the unrestrained com- 
 petition of ocean carriers, and all the circumstances and conditions 
 surrounding it. These circumstances and conditions are, indeed, 
 widely different, in many respects, from the circumstances and con- 
 ditions surrounding the carriage of domestic interstate traffic between 
 the States of the American Union by rail carriers; but as the regula-
 
 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 243 
 
 tion provided for by the act to regulate commerce does not undertake 
 to regulate or govern them, they cannot be held to constitute reasons, 
 in themselves, why imported freight brought to a port of eutry of the 
 United States or a port of entry of an adjacent foreign country, des- 
 tined to a place within the United States, should be carried at a 
 lower rate than domestic traffic from such ports of entry, repetitively, 
 to the places of destination, in the United States, over the same line 
 and in the same direction. To hold otherwise would be for the com- 
 mission to create exceptions to the operation of the statute not found 
 in the statute, and no other power but Congress can create such 
 exception in the exercise of legislative authority. 
 
 " In the one case the freight is transported from a point of origin 
 in the United States to a destination within the United States, or 
 port of transshipment, if it be intended for export, upon open pub- 
 lished rates, which must be reasonable and just, not unjustly prefer- 
 ential to one kind of traffic over another, and relatively fair and just 
 as between localities; and the circumstances and conditions sur- 
 rounding and involved in the transportation of the freight are in a 
 very high degree material. In the other case, the freight originates 
 in a foreign country, its carriage is commenced from a foreign port, 
 it is carried upon rates that are not open and published, but are 
 secret, and in making these rates it is wholly immaterial to the 
 parties making them whether they are reasonable and just or not, 
 so they take the freight and beat a rival, and it is equally imma- 
 terial to them whether they unjustly discriminate against surround- 
 ing or rival localities in such foreign country or not. Imported 
 foreign merchandise has all the benefit and advantage of rates thus 
 made in the foreign ports; it also has all the benefit and advantage 
 of the low rates made in the ocean carriage, arising from the 
 peculiar circumstances and conditions under which that is done; 
 but, when it reaches a port of entry of the United States, or a 
 port of entry of a foreign country adjacent to the United States, 
 in either event upon a through bill of lading, destined to a place in 
 the United States, then its carriage from such port of entry to its 
 place of destination in the United States, under the operation of the 
 act to regulate commerce, must be under the inland tariff from such 
 port of entry to such place of destination, covering other like kind 
 of traffic in the elements of bulk, weight, value, and of carriage; 
 and no unjust preference must be given to it in carriage or facilities 
 of carriage over other freight. In such case, all the circumstances 
 and conditions that have surrounded its rates and carriage from the 
 foreign port to the port of entry have had their full weight and 
 operation, and in its carriage from the port of entry to the place of 
 its destination in the United States. The mere fact that it is foreign 
 merchandise thus brought from a foreign port is not a circumstance 
 or condition, under the operation of the act to regulate commerce, 
 which entitles it to lower rates, or any other preference in facilities
 
 244 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 
 
 and carriage, over borne merchandise, or other traffic of a like kind, 
 carried by the inland carrier, from the port of entry to the place of 
 destination in the United States, for the same distance, and over the 
 same line. . . . 
 
 " The act to regulate commerce will be examined in vain to find 
 any intimation that there shall be any difference made in the tolls, 
 rates, or charges for, or any difference in the treatment of home and 
 foreign merchandise, in respect to the same or similar service ren- 
 dered in the transportation, when this transportation is done under 
 the operation of this statute. Certainly, it would require a proviso 
 or exception, plainly ingrafted upon the face of the act to regulate 
 commerce, before any tribunal charged with its administration would 
 be authorized to decide or hold that foreign merchandise was entitled 
 to any preference in tolls, rates, or charges made for, or any differ- 
 ence in its treatment for, the same or similar service as against 
 home merchandise. Foreign and home merchandise, therefore, under 
 the operation of this statute, when handled and transported by inter- 
 state carriers, engaged in carriage in the United States, stand exactly 
 upon the same basis of equality as to tolls, rates, charges, and treat- 
 ment for similar services rendered. 
 
 " The business complained of in this proceeding is done in the 
 shipment of foreigu merchandise from foreign ports through ports of 
 entry of the United States, or through ports of entry in a foreign 
 country adjacent to the United States, to points of destination in the 
 United States, upon through bills of lading." 4 Interst. Commerce 
 Com. R. 512-516. 
 
 It is obvious, therefore, that the commission, in formulating the 
 order of January 29, 1891, acted upon that view of the meaning of 
 the statute which is expressed in the foregoing passages. 
 
 We have, therefore, to deal only with a question of law, and that 
 is, What is the true construction, in respect to the matters involved 
 in the present controversy, of the act to regulate commerce ? If the 
 construction put upon the act by the commission was right, then the 
 order was lawful ; otherwise, it was not. 
 
 Before we consider the phraseology of the statute, it may be well 
 to advert to the causes which induced its enactment. They chiefly 
 grew out of the use of railroads as the principal modern instrumen- 
 tality of commerce. While shippers of merchandise are under no 
 legal necessity to use railroads, they are so practically. The demand 
 for speedy and prompt movement virtually forbids the employment 
 of slow and old-fashioned methods of transportation, at least in the 
 case of the more valuable articles of traffic. At the same time, the 
 immense outlay of money required to build and maintain railroads, 
 and the necessity of resorting, in securing the rights of way, to the 
 power of eminent domain, in effect disable individual merchants and 
 shippers from themselves providing such means of carriage. From 
 the very nature of the case, therefore, railroads are monopolies, and
 
 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 245 
 
 the evils that usually accompany monopolies soon began to show 
 themselves, and were the cause of loud complaints. The companies 
 owning the railroads were charged, and sometimes truthfully, with 
 making unjust discriminations, between shippers and localities, 
 with making secret agreements with some to the detriment of other 
 patrons, and with making pools or combinations with each other, 
 leading to oppression of entire communities. 
 
 Some of these mischiefs were partially remedied by special pro- 
 visions inserted in the charters of the companies, and by general 
 enactments by the several States, such as clauses restricting the 
 rates of toll, and forbidding railroad companies from becoming con- 
 cerned in the sale or production of articles carried, and from making 
 unjust preferences. Relief, to some extent, was likewise found in 
 the action of the courts in enforcing the principles of the common 
 law applicable to common carriers, — particularly that one which 
 requires uniformity of treatment in like conditions of service. 
 
 As, however, the powers of the States were restricted to their own 
 territories, and did not enable them to efficiently control the manage- 
 ment of great corporations, whose roads extend through the entire 
 country, there was a general demand that Congress, in the exercise 
 of its plenary power over the subject of foreign and interstate com- 
 merce, should deal with the evils complained of by a general enact- 
 ment, and the statute in question was the result. 
 
 The scope or purpose of the act is, as declared in its title, to 
 regulate commerce. It would, therefore, in advance of an examina- 
 tion of the text of the act, be reasonable to anticipate that the legis- 
 lation would cover, ok have regard to, the entire field of foreign and 
 interstate commerce, and that its scheme of regulation would not be 
 restricted to a partial treatment of the subject. So, too, it could not 
 be readily supposed that Congress intended, when regulating such 
 commerce, to interfere with and interrupt, much less destroy, sources 
 of trade and commerce already existing, nor to overlook the property 
 rights of those who had invested money in the railroads of the 
 country, nor to disregard the interests of the consumers, to furnish 
 whom with merchandise is one of the principal objects of all systems 
 of transportation. 
 
 Addressing ourselves to the express language of the statute, we 
 find, in its first section, that the carriers that are declared to be sub- 
 ject to the act are those " engaged in the transportation of passengers 
 or property wholly by railroad, or partly by railroad and partly by 
 water when both are used, under a common control, management, or 
 arrangement, for a continuous carriage or shipment, from one State 
 or Territory of the United States, or the District of Columbia, to 
 any other State or Territory of the United States, or the District of 
 Columbia, or from any place in the United States to an adjacent for- 
 eign country, or from any place in the United States through a foreign 
 country to any other place in the United States, and also to the trans-
 
 246 TEXAS & PACIFIC E. V. INTERSTATE COMMERCE COM. 
 
 pollution iu like manner of property shipped from any place in the 
 United States to a foreign country and carried from such place to a 
 port of transshipment, or shipped from a foreign country to any place 
 in the United States and carried to such place from a port of entry 
 either in the United States or an adjacent foreign country." 
 
 It would be difficult to use language more unmistakably signifying 
 that Congress had in view the whole field of commerce (excepting 
 commerce wholly within a State), as well that between the States and 
 Territories as that going to or coming from foreign countries. 
 
 In a later part of the section it is declared that " the term 
 ' transportation ' shall include all instrumentalities of shipment or 
 carriage." 
 
 Having thus included in its scope the entire commerce of the 
 United States, foreign and interstate, and subjected to its regula- 
 tions all carriers engaged in the transportation of passengers or 
 property, by whatever instrumentalities of shipment or carriage, the 
 section proceeds to declare that " all charges made for any service 
 rendered or to be rendered in the transportation of passengers or 
 property as aforesaid, or in connection therewith, or for the receiv- 
 ing, delivering, storage, or handling of such property, shall be rea- 
 sonable and just, and every unjust and unreasonable charge for such 
 service is prohibited and declared to be unlawful." 
 
 The significance of this language in thus extending the judgment 
 of the tribunal established to enforce the provisions of the act to the 
 entire service to be performed by carriers, is obvious. 
 
 Proceeding to tbe second section, we learn that its terms forbid 
 any common carrier, subject to the provisions of the act, from 
 charging, demanding, collecting, or receiving " from any person or 
 persons a greater or less compensation for any service rendered or to 
 be rendered, in the transportation of passengers or property, subject 
 to the provisions of the act, than it charges, demands, collects, or 
 receives from any other person or persons for doing for him or them 
 a like and contemporaneous service in the transportation of a like 
 kind of traffic under substantially similar circumstances and condi- 
 tions," and declare that disregard of such prohibition shall be deemed 
 " unjust discrimination," and unlawful. 
 
 Here, again, it is observable that this section contemplates that 
 there shall be a tribunal capable of determining whether, in given 
 cases, the services rendered are " like and contemporaneous," whether 
 the respective traffic is of a " like kind," and whether the transporta- 
 tion is under " substantially similar circumstances and conditions." 
 
 The third section makes it " unlawful for any common carrier, 
 subject to the provisions of the act, to make or give any undue or 
 unreasonable preference or advantage to any particular person, com- 
 pany, firm, corporation, or locality, any particular description of 
 traffic, in any respect whatsoever, or to subject any particular person, 
 company, firm, corporation, or locality to any undue or unreasonable
 
 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 247 
 
 prejudice or disadvantage in any respect whatever." It also pro- 
 vides that every such common carrier shall afford " all reasonable, 
 proper, and equal facilities for the interchange of traffic between 
 
 their respective lines, and for the receiving, forwarding, and deliver- 
 ing of passengers and property to and from their respective lines and 
 those connecting therewith, and shall not discriminate in their rates 
 and charges between such connecting lines." 
 
 The fourth section makes it unlawful for any such common carrier 
 to " charge or receive any greater compensation in the aggregate for 
 the transportation of passengers or of like kind of property, under 
 substantially similar circumstances and conditions, for a shorter 
 than for a longer distance over the same line, in the same direction, 
 the shorter being included within the longer distance, but this shall 
 not be construed as authorizing any common carrier to charge and 
 x'eceive as great compensation for a shorter as for a longer distance"; 
 and provision is likewise made that, " upon application to the com- 
 mission appointed under the provisions of the act, such common car- 
 rier may, in special cases, after investigation by the commission, be 
 authorized to charge less for longer than for shorter distances for the 
 transportation of passengers or property," and that " the commission 
 may from time to time prescribe the extent to which such designated 
 common carrier may be relieved from the operation of this section of 
 the act." 
 
 The powers of the Interstate Commission are not very clearly 
 defined in the act, nor is its method of procedure very distinctly 
 outlined. It is, however, declared in the twelfth section, as amended 
 March 2, 1889, and February 10, 1891, that the commission " shall 
 have authority to inquire into the management of the business of all 
 common carriers subject to the provisions of the act, and shall keep 
 itself informed as to the manner and method in which the same is 
 conducted, and shall have the right to obtain from such common car- 
 riers full and complete information necessary to enable the commis- 
 sion to perform the duties and carry out the objects for which it was 
 created; and the commission is hereby authorized and required to 
 execute and enforce the provisions of the act." It is also made the 
 duty of any district attorney of the United States to w'hom the com- 
 mission may apply to institute in the proper court, and to prosecute 
 under the direction of the attorney general of the United States, all 
 necessary proceedings for the enforcement of the provisions of the 
 act, and for the punishment of all violations thereof. And provision 
 is made for complaints to be made by any person, firm, corporation, 
 association, or any mercantile, agricultural, or manufacturing society, 
 or any body politic or municipal organization, before the commis- 
 sion, and for an investigation of such complaints to be made by the 
 commission; and it is made the duty of the commission to make 
 reports in writing in respect thereof, which shall include the findings 
 of fact upon which the conclusions of the commission are based,
 
 248 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 
 
 : 1 1 ither with its recommendation as to what reparation, if any, 
 should be made by any common carrier to any party or parties who 
 may be found to have been injured; and such findings so made shall 
 thereafter, in all judicial proceedings, be deemed prima facie evi- 
 dence as to each and any fact found. 
 
 In the present case no complaint seems to have been made before 
 the commission by any person, firm, company, or other organization, 
 against the Texas & Pacific Railway Company, of any disregard by 
 said company of any provision of the statute resulting in any specific 
 loss or damage to anyone; nor has the commission, in its findings, 
 disclosed any such loss or damage to any individual complainant. 
 And it is made one of the contentions of the defendant company that 
 the entire proceeding was outside of the sphere of action appointed 
 by the act to the commission, which only had power, as claimed by 
 defendant, to inquire into complaint made by some person or body 
 injured by some described act of the defendant company. 
 
 The complaint in the present case was made by certain corpora- 
 tions of New York, Philadelphia, and San Francisco, known as 
 " boards of trade" or " chambers of commerce," which appear to be 
 composed of merchants and traders in those cities engaged in the 
 business of reaching and supplying the consumers of the United 
 States with imported luxuries, necessities, and manufactured goods 
 generally, and as active competitors with the merchants at Boston, 
 Montreal, Philadelphia, New Orleans, San Francisco, Chicago, and 
 merchants in foreign countries who import direct on through bills of 
 lading issued abroad. 
 
 We shall assume, in the disposition of the present case, that a 
 valid complaint may be made before the commission, by such trade 
 organizations, based on a mode or manner of treating import traffic 
 by a defendant company, without disclosing or containing charges of 
 specific acts of discrimination or undue preference, resulting in loss 
 or damage to individual persons, corporations, or associations. 
 
 We do not wish to be understood as implying that it would be 
 competent for the commission, without a complaint made before it, 
 and without a hearing, to subject common carriers to penalties. It 
 is also obvious that if the commission does have the power, of its 
 own motion, to promulgate general decrees or orders which thereby 
 become rules of action to common carriers, such exercise of power 
 must be confined to the obvious purposes and directions of the stat- 
 ute. Congress has not seen fit to grant legislative powers to the 
 commission. 
 
 With these provisions of the act and these general principles in 
 mind, we now come to consider the case in hand. 
 
 After an investigation made by the commission on a complaint 
 against the Texas & Pacific Railway Company and other companies 
 by the boards of trade above mentioned, the result reached was the 
 order of the commission made on January 29, 1891, a disregard of
 
 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 249 
 
 which was complained of by the commission in its bill or petition 
 filed in the Circuit Court of the United States. 
 
 The Texas & Pacific Railway Company, a corporation created by 
 laws of the United States, and also possessed of certain grants from 
 the State of Texas, owns a railroad extending from the city of New- 
 Orleans, through the State of Texas, to El Paso, where it connects 
 with the railroad of the Southern Pacific Company, the two roads 
 forming a through route to San Francisco. The Texas & Pacific 
 Railway Company has likewise connections with other railroads and 
 steamers, forming through freight lines to Memphis, St. Louis, and 
 other points on the Missouri River, and elsewhere. 
 
 The defendant company admitted that, as a scheme or mode of 
 obtaining foreign traffic, it had agencies by which, and by the use of 
 through bills of lading, it secured shipments of merchandise from 
 Liverpool and London, and other European ports, to San Francisco 
 and to the other inland points named. It alleged that, in order to 
 get this traffic, it was necessary to give through rates from the places 
 of shipment to the places of final destination, and that in fixing said 
 rates it was controlled by an ocean competition by sailing and steam 
 vessels by way of the Isthmus and around the Horn, and also, to 
 some extent, by a competition through the Canada route to the 
 Pacific coast. These rates, so fixed and controlled, left to the 
 defendant company and to the Southern Pacific Company, as their 
 share of the charges made and collected, less than the local charges 
 of said companies in transporting similar merchandise from New- 
 Orleans to San Francisco, and so, too, as to foreign merchandise 
 carried to other inland points. The defendant further alleged that 
 unless it used said means to get such traffic the merchandise to the 
 Pacific coast would none of it reach New Orleans, but would go by 
 the other means of transportation; that neither the community of 
 New Orleans, nor any merchant or shipper thereof, was injured or 
 made complaint; that the traffic thus secured was remunerative to the 
 railway company, and was obviously beneficial to the consumers at 
 the places of destination, who were thus enabled to get their goods at 
 lower rates than would prevail if this custom of through rates was 
 destroyed. 
 
 As we have already stated, the commission did not charge or find 
 that the local rates charged by the defendant company were unreason- 
 able, nor did they find that any complaint was made by the city of 
 New Orleans, or by any person or organization there doing business. 
 Much less did they find that any complaint was made by the localities' 
 to which this traffic was carried, or that any cause for such complaint 
 existed. 
 
 The commission justified its action wholly upon the construction 
 put by it on the act to regulate commerce, as forbidding the commis- 
 sion to consider the " circumstances and conditions" attendant upon 
 the foreign traffic as such " circumstances and conditions" as they
 
 250 TEXAS & PACIFIC K. V. INTERSTATE COMMERCE CJM. 
 
 are directed in the act to consider. The commission thought it was 
 constrained by the act to regard foreign and domestic traffic as like 
 kinds of traffic under substantially similar circumstances and condi- 
 tions, and that the action of the defendant company in procuring 
 through traffic that would, except for the through rates, not reach the 
 port of New Orleans, and in taking its pro rata share of such rates, 
 was an act of " unjust discrimination," within the meaning of the act. 
 
 In so construing the act, we think the commission erred. 
 
 As we have already said, it could not be supposed that Congress, 
 in regulating commerce, would intend to forbid or destroy an exist- 
 ing branch of commerce, of value to the common carriers and to the 
 consumers within the United States. Clearly express language must 
 be used in the act, to justify such a supposition. 
 
 So far from finding such language, we read the act in question to 
 direct the commission, when asked to find a common carrier guilty of 
 a disregard of the act, to take into consideration all the facts of the 
 given case, among which are to be considered the welfare and advan- 
 tage of the common carrier, and of the great body of the citizens of 
 the United States who constitute the consumers and recipients of the 
 merchandise carried, and that the attention of the commission is not 
 to be confined to the advantage of shippers and merchants who deal 
 at or near the ports of the United States, in articles of domestic pro- 
 duction. Undoubtedly the latter are likewise entitled to be consid- 
 ered; but we cannot concede that the commission is shut up, by the 
 terms of this act, to solely regard the complaints of one class of the 
 community. We think that Congress has here pointed out that iu 
 considering questions of this sort the commission is not only to con- 
 sider the wishes and interests of the shippers and merchants of large 
 cities, but to consider also the desire and advantage of the carriers in 
 securing special forms of traffic, and the interest of the public that 
 the carriers should secure that traffic, rather than abandon it or not 
 attempt to secure it. It is self-evident that many cases may and do 
 arise where, although the object of the carriers is to secure the traffic 
 for their own purposes and upon their own lines, yet nevertheless 
 the very fact that they seek, by the charges they make, to secure it, 
 operates in the interests of the public. 
 
 Moreover, it must not be overlooked that this legislation is experi- 
 mental. Even in construing the terms of a statute, courts must take 
 notice of the history of legislation, and, out of different possible 
 constructions, select and apply the one that best comports with the 
 genius of our institutions, and therefore most likely to have been the 
 construction intended by the lawmaking power. Commerce, in its 
 largest sense, must be deemed to be one of the most important sub- 
 jects of legislation; and an intention to promote and facilitate it, 
 and not to hamper or destroy it, is naturally to be attributed to 
 Congress. The very terms of the statute, that charges must be 
 "reasonable," that discrimination must not be "unjust," and that
 
 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 251 
 
 preference or advantage to any particular person, firm, corporation, 
 or locality must not be " undue" or "unreasonable," necessarily 
 imply that strict uniformity is not to be enforced, but that all cir- 
 cumstances and conditions which reasonable men would regard as 
 affecting the welfare of the carrying companies, and of the pro- 
 ducers, shippers, and consumers, should be considered by a tribunal 
 appointed to carry into effect and enforce the provisions of the act. 
 
 The principal purpose of the second section is to prevent unjust 
 discrimination between shippers. It implies that in deciding whether 
 differences in charges, in given cases, were or were not unjust, there 
 must be a consideration of the several questions whether the services 
 rendered were "like and contemporaneous"; whether the kinds of 
 traffic were "like"; whether the transportation was effected under 
 " substantially similar circumstances and conditions." To answer 
 such questions, in any case coming before the commission, requires 
 an investigation into the facts; and we think that Congress must 
 have intended that whatever would be regarded by common carriers, 
 apart from the operation of the statute, as matters which warranted 
 differences in charges, ought to be considered, in forming a judgment 
 whether such differences were or were not " unjust." Some charges 
 might be unjust to shippers, others might be unjust to the carriers. 
 The rights and interests of both must, under the terms of the act, be 
 regarded by the commission. 
 
 The third section forbids any undue or unreasonable preference or 
 advantage in favor of any person, company, firm, corporation, or 
 locality ; and as there is nothing in the act which defines what shall be 
 held to be due or undue, reasonable or unreasonable, sueh questions 
 are questions not of law, but of fact. The mere circumstance that 
 there is in a given case a preference or an advantage does not, of itself, 
 show that such preference or advantage is undue or unreasonable, within 
 the meaning of the act. Hence it follows that, before the commission 
 can adjudge a common carrier to have acted unlawfully, it must ascer- 
 tain the facts ; and here again we think it evident that those facts and 
 matters which carriers, apart from any question arising under the stat- 
 ute, would treat as calling, in given cases, for a preference or advan- 
 tage, are facts and matters which must be considered by the commission 
 in forming its judgment whether such preference or advantage is undue 
 or unreasonable. When the section says that no locality shall be 
 subjected to any undue or unreasonable prejudice or disadvantage in 
 any respect whatsoever, it does not mean that the commission is to 
 regard only the welfare of the locality or community where the traffic 
 originates, or where the goods are shipped on the cars. The welfare 
 of the locality to which the goods are sent is also, under the terms and 
 spirit of the act, to enter into the question. 
 
 The same observations are applicable to the fourth section, or the so- 
 called " long and short haul provision," and it is unnecessary to repeat 
 them.
 
 252 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 
 
 The only argument urged in favor of the view of the commission, 
 that is drawn upon the language of the statute, is found in those pro- 
 visions of the statute that make it obligatory on the common carriers to 
 publish their rates, and to file with the commission copies of joint tariffs 
 of rates or charges over continuous lines or routes operated hy more 
 than one common carrier ; and it is said that the place at which it would 
 seem that joint rates should be published for the information of ship- 
 pers would be at the place of origin of the freight, and that this cannot 
 be done, or be compelled to be done, in foreign ports. 
 
 The force of this contention is not perceived. Room is left for the 
 application of these provisions to traffic originating within the limits of 
 the United States, even if, for any reason, the} - are not practically ap- 
 plicable to traffic originating elsewhere. Nor does it appea. that the 
 commission ma} - not compel all common carriers within the reach of 
 their jurisdiction to publish such rates, and to furnish the commission 
 with all statements or reports prescribed by the statute. Nor was 
 there any allegation, evidence, or finding in the present case that the 
 Texas & Pacific Railway Company has failed to file with the com- 
 mission copies of its joint tariffs, showing the joint rates from English 
 ports to San Francisco, nor that the company has failed to make 
 public such joint rates in such manner as the commission may have 
 directed. 
 
 Another position taken by the commission in its report, and defended 
 in the briefs of counsel, is that it is the dut}' of the commission to so 
 construe the act to regulate commerce as to make it practically co- 
 operate with what is assumed to be the policy of the tariff laws. This 
 view is thus stated in the report : — 
 
 l ' One paramount purpose of the act to regulate commerce, manifest 
 in all its provisions, is to give to all dealers and shippers the same rates 
 for similar services rendered by the carrier in transporting similar freight 
 over its line. Now, it is apparent from the evidence in this case that 
 many American manufacturers, dealers, and localities, in almost every 
 line of manufacture and business, are the competitors of foreign manu- 
 facturers, dealers, and localities, for supplying the wants of American con- 
 sumers at interior places in the United States, and that, under domestic 
 bills of lading, they seek to require from American carriers like service as 
 their foreign competitors, in order to place their manufactured goods, 
 property, and merchandise with interior consumers. The act to regu- 
 late commerce secures them this right. To deprive them of it by any 
 course of transportation business or device is to violate the statute." 
 4 Iuterst. Commerce Com. R. 514, 515. 
 
 Our reading of the act does not disclose any purpose or intention on 
 the part of Congress to therely reinforce the provisions of the tariff 
 laws. These laws differ wholly, in their objects, from the law to regu- 
 late commerce. Their main purpose is to collect revenues with which 
 to meet the expenditures of the government, and those of their pro- 
 visions, whereby Congress seeks to so adjust rates as to protect Ameri-
 
 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 253 
 
 can manufacturers and producers from competition by foreign low-priced 
 labor, operate equally in all parts of the country. 
 
 The effort of the commission, by a rigid general order, to deprive the 
 inland consumers of the advantage of through rates, and to thus give nn 
 advantage to the traders and manufacturers of the large seaboard cities, 
 seems to create the very mischief which it was one of the objects of the 
 act to remedy. 
 
 Similar legislation by the Parliament of England ma) - render it prof- 
 itable to examine some of the decisions of the courts of that country 
 construing its provisions. 
 
 In fact, the second section of our act was modelled upon section 90 
 of the English railway clauses consolidation act of 1845, known as the 
 " Equalit} - Clause " ; and the third section of our act was modelled upon 
 the second section of the English " Act for the better regulation of the 
 traffic on railways and canals" of July 10, 1854, and the eleventh section 
 of the act of July 21, 1873, entitled " An Act to make better provision 
 for the carrying into effect the railway and canal traffic act, 1854, and 
 for other purposes connected therewith." 
 
 One of the first cases that arose under the act of 1854 was that of 
 Hozier v. The Caledonian Railway, 1 Nev. & McN. 27, where Hozier 
 filed a petition against the railway company, alleging that he was ag- 
 grieved by being charged nine shillings for travelling between Mother- 
 well and Edinburgh, a distance of forty-three miles ; while passengers 
 travelling in the same train, and in the class of carriage, between Glas- 
 gow and Edinburgh, were charged only two shillings, which was alleged 
 to amount to an undue and unreasonable preference. But the petition 
 was dismissed, and the Court said : " The only case stated in the peti- 
 tion is that passengers passing from Glasgow to Edinburgh are carried 
 at a cheaper aggregate rate than passengers from Motherwell to either 
 of these places. Now, that is an advantage, no doubt, to those pas- 
 sengers travelling between Edinburgh and Glasgow. But is it an 
 unfair advantage over other passengers travelling between intermediate 
 stations? The complainer must satisfy us that there is something un- 
 fair or unreasonable in what he complains of, in order to warrant any 
 interference. Now I have read the statements in the petition, and 
 listened to the argument in support of it, to find what there is un- 
 reasonable in giving that advantage to through passengers. What 
 disadvantage do Motherwell passengers suffer by this? I think that 
 no answer was given to this, except that there was none. This peti- 
 tioner's complaint may be likened to that of the laborer who, having 
 worked all day, complained that others, who had worked less, received 
 a penny like himself." 
 
 The case of Foreman v. Great Eastern Railway Co., 2 Nev. & McN. 
 202, was decided by the English railway commissioners in 1875. The 
 facts were that the complainants imported coal in their own ships from 
 points in the north of England to Great Yarmouth, and forwarded the 
 coal to various stations on the defendants' railway, between Great
 
 254 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 
 
 Yarmouth and Peterborough. The complaint was that the defendants' 
 rates for carrying coal from Yarmouth to stations in the interior, at 
 which complainants dealt, were unreasonably greater than the rates 
 charged in the opposite direction, from Peterborough to such stations, 
 and that such difference in rates was made by the defendants for the 
 purpose of favoring the carriage of coal from the interior, as against 
 coal brought to Yarmouth by sea, and carried thence into the interior 
 over the defendants' railway. The commissioners found that it was 
 true that the defendants did carry coal from the interior to London, 
 Yarmouth, and other seaports on their line, at exceptionally low rates, 
 but that this was done for the purpose of meeting the competition ex- 
 isting at those places. It appeared that the rate from Peterborough 
 to Thetford, fifty-one miles, was four shillings, while the rate from 
 Peterborough to Yarmouth, one hundred miles, was only three shil- 
 lings. The commissioners said: "As, however, the complainants do 
 not, as far as their trade in Yarmouth itself is concerned, use the Great 
 Eastern Railway at all, the companv cannot be said to prefer other 
 traffic to theirs ; nor does the traffic act prevent a railwa}* company from 
 having special rates of charge to a terminus to which traffic can be car- 
 ried by other routes or other modes of carriage with which theirs is in 
 competition." 
 
 In Harris v. Cockermouth Railway, 1 Nev. & McN. 97, the court 
 held it to be an undue preference for a railway company to concede to 
 the owner of a colliery a lower rate than to the owners of other collieries, 
 from the same point of departure to the same point of arrival, merely 
 because the person favored had threatened to build a railway for his 
 coal, and to divert his traffic from defendant's railway. But Chief 
 Justice Cockburn said : "I quite agree that this court has intimated, if 
 not absolutely decided, that a company is entitled to take into considera- 
 tion an}' circumstances, either of a general or of a local character, in 
 considering the rate of charge which they will impose upon any particular 
 traffic. . . . As, for instance, in respect of terminal traffic, there might 
 be competition with another railway ; and in respect to terminal traffic, 
 as distinguished from intermediate traffic, it might well be that they 
 could afford to carry goods over the whole line cheaper, or proportion- 
 ately so, than they could over an intermediate part of the line." 
 
 In the case of Budd v. London & Northwestern Railway Co., 4 Nev. 
 & McN. 393. and in London & Northwestern Railway v. Evershed, 3 
 App. Cas. 1029, it was held that it was not competent for the railway 
 company to make discriminations between persons shipping from the 
 same point of departure to the same point of arrival ; but, even in those 
 cases, it was conceded that there might be circumstances of competition 
 which might be considered. At any rate, those cases have been much 
 modified, if not fully overruled, by the later cases, particularly in Denaby 
 Main Colliery Co. v. Manchester, Sheffield, & Lincolnshire Ry. Co., 11 
 App. Cas. 97, and in Phipps v. London & Northwestern Railway, [1892] 
 2 Q. B. 229, 236.
 
 TEXAS & TACIFIC R. V. INTERSTATE COMMERCE COM. 255 
 
 The hitter was the case of an application, under the railway and 
 canal traffic acts, for an order enjoining the defendants to desist from 
 giving an undue preference to the owners of Butlins and Islip furnaces, 
 and from subjecting the traffic of the complainants to an undue prefer- 
 ence, in the matter of the rates charged for the conveyance of coal, 
 coke, and pig-iron traffic, and also for an order enjoining the defend- 
 ants to desist from giving an unreasonable preference or advanta< 
 the owners of Butlins and Islip furnaces, and the traffic therefrom, hy 
 making an allowance of fourpence per ton in respect of coal, coke, and 
 pig iron conveyed for them by the defendants. The sidings of the 
 Duston furnaces, belonging to the complainants, were situated on the 
 London & Northwestern Railway, at a distance of about sixty miles 
 from Great Bridge, one of the pig-iron markets to the westward. The 
 sidings of the Butlins and Islip furnaces were situated on the same rail- 
 way, to the east of the Duston furnaces, and a distance from the pig- 
 iron market, as to Butlins, of about seventy-one miles, and, as to Islip, 
 of about eighty-two miles. Duston had only access to the London & 
 Northwestern, but Butlins and Islip had access not only to the London 
 & Northwestern, but also to the Midland Railway. The London & 
 Northwestern Company, which carried the Butlins pig iron eleven miles 
 further, and the Islip pig iron twenty-two miles further, than the Duston 
 pig iron, charged Butlins 0.95J. per mile, and Islip 0.84cL per mile; 
 while the}' charged Duston 1.05c?. per mile; so that the total charge 
 per ton of pig iron from Duston to the western markets was 5s. 2d., 
 while the total charge per ton from either Butlins or Islip was as. 8c/. 
 
 When the case was before the railway commissioners it was said by 
 Wills, J. : " It is complained that, although along the London & N. W. 
 Railway every ton of pig iron, every ton of coal, and every ton of coke 
 travels a longer distance in order to reach Islip than in order to reach 
 the applicant's premises, the charge that is put upon it, although 
 greater than the charge which is put upon the traffic which goes to the 
 applicant's premises, is not sufficiently greater to represent the increased 
 distance ... I first observe that these are, in my judgment, eminently 
 practical questions, and if this court once attempts the hopeless task of 
 dealing with questions of this kind with any approach to mathematical 
 accurac}', and tries to introduce a precision which is unattainable in 
 commercial and practical matters, it would do infinite mischief, and no 
 good. ... It seems to me that we must take into account the fact that 
 at Butlins and Islip there is an effective competition with the Midland. 
 Although effective competition with another railway company or canal 
 company will not of itself justify a preference which is otherwise quite 
 beyond the mark, yet still it is not a circumstance that can be thrown 
 out of the question, and I think there is abundance of authority for that. 
 It follows also, I think, from the view which I am disposed to take of 
 these — being eminently practical — questions, that you must give due 
 consideration to the commercial necessities of the companies, as a mat- 
 ter to be thrown in along with the others. ... I wish emphatically to
 
 256 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 
 
 be considered as not having attempted to lay down an}- principles with 
 regard to this question of undue preference, or as to the grounds upon 
 which I have decided it. In my judgment, undue preference is a ques- 
 tion of fact in each case." 
 
 The railway commissioners refused to interfere, and the case was ap- 
 pealed. Lord Herschell stated the case, and said : — 
 
 k * This application is made under the second section of the Railway 
 and Canal Traffic Act, 1854, which provides that ' no railway company 
 shall make or give any undue or unreasonable preference or advantage 
 to or in favor of any particular person or company, or any particular 
 description of traffic, in any respect whatever, nor shall any such com- 
 pany subject any particular person or company, or particular descrip- 
 tion of traffic, to any undue or unreasonable prejudice or disadvantage 
 in any respect whatever.' 
 
 1,1 The question, therefore, which the tribunal, whether it be the court 
 or the commissioners before whom such a question comes, has to deter- 
 mine, is whether an undue preference or advantage is being given, or 
 whether the one part}- is being unduly prejudiced or put to a disadvan- 
 tage, as compared with the other. I think it is clear that the section 
 implies that there may be a preference, and that it does not make every 
 inequality of charge an undue preference. 
 
 l, Of course, if the circumstances so differ that the difference of 
 charge is in exact conformity with the difference of circumstances, there 
 would be no preference at all. But, as has been pointed out before, 
 what the section provides is that there shall not be an undue or un- 
 reasonable preference or prejudice. And it cannot be doubted that 
 whether, in particular instances, there has been an undue or unreason- 
 able prejudice or preference, is a question of fact. In Palmer v. Lon- 
 don & Southwestern Railway Co., L. R. 1 C. P. 593, Chief Justice 
 Erie said : ' I beg to say that the argument from authority seems to 
 rne to be without conclusive force in guiding the exercise of this juris- 
 diction ; the question whether undue prejudice has been caused being a 
 question of fact, depending on the matters proved in each case.' 
 
 " In Denaby Main Colliery Co. v. Manchester, &c. Ry. Co., 3 Nev. 
 & McN. 426, when it was before the Court of Appeals, on an appeal 
 arising out of the proceedings before the railway commissioners, Lord 
 Selborne, then Lord Chancellor, said : ' The defendants gave a decided, 
 distinct, and great advantage, as it appears to me, to the distant col- 
 lieries. That may be due or undue, reasonable or unreasonable ; but, 
 under these circumstances, is not the reasonableness a question of fact? 
 Is it not a question of fact, and not of law, whether such a preference 
 is due or undue? Unless you can point to some other law which de- 
 fines what shall be held to be reasonable or unreasonable, it must be, 
 and is, a mere question, not of law, but of fact.' 
 
 " The Lord Chancellor there points out that the mere circumstance 
 that there is an advantage does not of itself show that it is an undue pref- 
 erence, within the meaning of the act, and, further, that whether there be
 
 TEXAS & PACIFIC It. V. INTERSTATE COMMERCE COM. 257 
 
 such undue preference or advantage is a question of fact, and of fact 
 alone, of the act of 1854. No rule is given to guide the court or the 
 tribunal in the determination of cases or applications made under this 
 second section. The conclusion is one of fact, to be arrived at, looking 
 at the matter broadly, and applying common sense to the facts that are 
 proved. I quite agree with Mr. Justice Wills that it is impossible to 
 exercise a jurisdiction such as is conferred by this section by any pro- 
 cess of mere mathematical or arithmetical calculation. When you 
 have a variety of circumstances, differing in the one case from the other, 
 you cannot say that a difference of circumstances represents or is equiva- 
 lent to such a fraction of a penny difference of charge in the one case as 
 compared with the other. A much broader view must be taken, and it 
 would be hopeless to attempt to decide a case by any attempted calcu- 
 lation. I should say that the decision must be arrived at broadly and 
 fairly, by looking at all the circumstances of the case, — that is, look- 
 ing at all the circumstances which are proper to be looked at, because, 
 of course, the very question in this case is whether a particular circum- 
 stance ought or ought not to be considered ; but, keeping in view all 
 the circumstances which ma} - legitimately be taken into consideration, 
 then it becomes a mere question of fact. . . . Now, there is no doubt 
 that in coming to their determination the court below did have regard 
 to competition between the Midland and the Northwestern, and the 
 situation of these two furnaces which rendered such competition inevi- 
 table. If the appellants can make out that, in point of law, that is a 
 consideration which cannot be permitted to have an}* influence at all, 
 that those circumstances must be rigidly excluded from consideration, 
 and that the}' are not circumstances legitimateby to be considered, no 
 doubt they establish that the court below has erred in point of law. 
 But it is necessary for them to go as far as that in order to make anv 
 way with this appeal, because once admit that to any extent, for any pur- 
 pose, the question of competition can be allowed to enter in, whether 
 the court has given too much weight to it or too little becomes a ques- 
 tion of fact, and not of law. The point is undoubtedly a very important 
 one. . . . 
 
 " As I have already observed, the second section of the act of 1854 
 does not afford to the tribunal any kind of guide as to what is undue or 
 unreasonable. It is left entirely to the judgment of the court on a re- 
 view of the circumstances. Can we say that the local situation of one 
 trader, as compared with another, which enables him, by having two 
 competing routes, to enforce upon the carrier by either of these routes 
 a certain amount of compliance with his demands, which would be im- 
 possible if he did not enjoy that advantage, is not among the circum- 
 stances which may be taken into consideration? I am looking at the 
 question now as between trader and trader. It is said that it is unfair 
 to the trader who is nearer the market that he should not enjoy the full 
 benefit of the advantage to be derived from his geographical situation 
 at a point on the railway nearer the market than his fellow trader who 
 
 17
 
 258 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 
 
 trades at a point more distant ; but I cannot see, looking at the matter as 
 between the two traders, wh}' the advantageous position of the one trader, 
 in having his works so placed that he has two competitive routes, is not 
 as much a circumstance to be taken into consideration as the geographical 
 position of the other trader, who, though he has not the advantage of 
 competition, is situated at a point on the line geographically nearer the 
 market. Why the local situation in regard to its proximity to the mar- 
 ket is to be the only consideration to be taken into account in dealing 
 with the matter, as a matter of what is reasonable and right as between 
 the two traders, I cannot understand. 
 
 " Of course, if you are to exclude this from consideration altogether, 
 the result must inevitably be to deprive the trader who has the two com- 
 peting routes of a certain amount of the advantages which he derives 
 from that favorable position of his works. All that I have to say is 
 that I cannot find anything in the act which indicates that when you 
 are left at large, — for you are left at large, — as to whether, as be- 
 tween two traders, the company is showing an undue and unreasonable 
 preference to the one, as compared with the other, you are to leave out 
 that circumstance, any more than anj T other circumstance which would 
 affect men's minds. . . . One class of cases unquestionably intended 
 to be covered by the section is that in which traffic from a distance, of 
 a character that competes with the traffic nearer the market, is charged 
 low rates because, unless such low rates were charged, it would not 
 come into the market at all. It is certain, unless some such principle as 
 that were adopted, a large town would necessarily have its food supply 
 greatly raised in price. So that, although the object of the company is 
 simply to get the traffic, the public have an interest in their getting the 
 traffic and allowing the carriage at a rate which will render that traffic 
 possible, and so bring the goods at a cheaper rate, and one which makes 
 it possible for those at a greater distance to compete with those situate 
 nearer to it. ... I cannot but think that a lower rate which is charged 
 from a more distant point by reason of a competing route which exists 
 thence is one of the cases which may be taken into account under those 
 provisions, and which would fall within the terms of the enactment. 
 
 "Suppose that to insist on absolutely equal rates would practically 
 exclude one of the two railways from the traffic ; it is obvious that 
 these members of the public who are in the neighborhood where they 
 can have the benefit of this competition would be prejudiced by any such 
 proceedings. And further, inasmuch as competition undoubtedly tends 
 to diminution of charges, and the charge of carriage is one which ulti- 
 mately falls upon the consumer, it is obvious that the public have an 
 interest in the proceedings under this act of Parliament not being so 
 used as to destroy a traffic which can never be secured but by some 
 such reduction of qharge, and the destruction of which would be preju- 
 dicial to the public, by tending to increase prices." 
 
 The learned judge then proceeded to discuss the authorities, and 
 pointed out that the case, of Buck! v. London & Northwestern Railway
 
 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 259 
 
 Co., and Evershed's Case, are no longer law, so far as the second sec- 
 tion of the act of 1854 is concerned. 
 
 Lindley and Kay, Lord Justices, gave concurring opinions, and the 
 conclusion of the court was that the commissioners did not err in taking 
 into consideration the fact that there was a competing line together with 
 all the other facts of the case, and in holding that a preference or ad- 
 vantage thence arising was not undue or unreasonable. 
 
 The precise question now before us has never been decided in the 
 American cases, but there are several in which somewhat analogous 
 questions have been considered. 
 
 Atchison, Topeka, & Santa Fe Railroad v. Denver & Xew Orleans 
 Railroad, 110 U. S. 667, was a case arising under a provision of the 
 Constitution of the State of Colorado which declares kt that all indi- 
 viduals, associations, and corporations shall have equal rights to have 
 persons and property transported over any railroad in this State, and 
 no undue or unreasonable discrimination shall be made in charges or 
 facilities for transportation of freight or passengers within the State, 
 and no railroad company shall give any preference to individuals, asso- 
 ciations, or corporations in furnishing cars or motive power." This 
 court held that under this constitutional provision a railroad company 
 which had made provisions with a connecting road for the transaction 
 of joint business at an established union junction was not required to 
 make similar provisions with a rival connecting line at another near 
 point on its line, and that the constitutional provision is not violated 
 by refusing to give to a connecting road the same arrangement as to 
 through rates which are given to another connecting line, unless the 
 conditions as to the service are substantially alike in both cases. 
 
 The sixth section of the act of Congress (July 1, 1862) relative to the 
 Union Pacific Railroad Compam* provided that the government shall at 
 all times have the preference in the use of the railroad, "at fair and 
 reasonable rates of compensation, not to exceed the amount paid by 
 private parties for the same kind of service." In the case of Union 
 Pac. Railway v.U. S., 117 U. S. 355, it was, in effect, held that the ser- 
 vice rendered 03" a railway company in transporting local passengers 
 from one point on its line to another is not identical with the service 
 rendered in transporting through passengers over the same rails. 
 
 A petition was filed before the Interstate Commerce Commission by 
 the Pittsburgh, Cincinnati, & St. Louis Railway Company against the 
 Baltimore & Ohio Railroad Company, seeking to compel the latter com- 
 pany to withdraw from its lines of road, upon which business competi- 
 tion with that of the petitioner was transacted, the so-called " party 
 rates," and to decline to give such rates in the future ; also, for an 
 order requiring said company to discontinue the practice of selling 
 excursion tickets at less than the regular rate. The cause was heard 
 before the commission, which held the so-called " party rate tickets." in 
 so far as they were sold for lower rates for each member of a party of 
 ten or more than rates contemporaneously charged for the transporta-
 
 260 TEXAS & PACIFIC K. V. INTERSTATE COMMERCE COM. 
 
 tion of single passengers between the same points, constituted unjust 
 discrimination, and were therefore illegal. The defendant company re- 
 fusing to obey the mandate of the commission, the latter filed a bill in 
 the Circuit Court of the United States for the Southern District of Ohio, 
 asking that the defendant be enjoined from continuing in its violation 
 of the order of the commission. The Circuit Court dismissed the bills 
 Some of the observations made by Jackson, Circuit Judge, may well be 
 cited (43 Fed. 37) : " Subject to the two leading prohibitions that their 
 charges shall not be unjust or unreasonable, and that they shall not 
 unjustly discriminate, so as to give undue preference or advantage, 
 or subject to undue prejudice or disadvantage persons or traffic similarly 
 circumstanced, the act to regulate commerce leaves common carriers as 
 they were at the common law, free to make special contracts looking to 
 the increase of their business, to classify their traffic, to adjust and 
 apportion their rates so as to meet the necessities of commerce, and 
 generally to manage their important interests upon the same principles 
 which are regarded as sound, and adopted in other trades and pursuits. 
 Conceding the same terms of contract to all persons equally, may not 
 the carrier adopt both wholesale and retail rates for its transportation 
 service?" Again : " The English cases establish the rule that, in pass- 
 ing upon the question of undue or unreasonable preference or disad- 
 vantage, it is not only legitimate, but proper, to take into consideration, 
 besides the mere differences in charges, various elements, such as the 
 convenience of the public, the fair interests of the carrier, the relative 
 quantities or volume of the traffic involved, the relative cost of the ser- 
 vices and profit to the company, and the situation and circumstances of 
 the respective customers with reference to each other, as competitive or 
 otherwise." 
 
 The case was brought to this Court, and the judgment of the Circuit 
 Court dismissing the bill was affirmed. Interstate Commerce Commis- 
 sion v. Baltimore & Ohio Railroad, 145 U. S. 263. The court, through 
 Mr. Justice Brown, cited with approval passages from the opinion of 
 Judge Jackson in the court below, and, among other things, said : "It 
 is not all discriminations or preferences that fall within the inhibition of 
 the statute; only such as are unjust and unreasonable." 
 
 Again, speaking of the sale of a ticket for a number of passengers 
 at a less rate than for a single passenger, it was said: "It does not 
 operate to the prejudice of the single passenger, who cannot be said to 
 be injured by the fact that another is able, in a particular instance, to 
 travel at a less rate than he. If it operates injuriously to any one, it is 
 to the rival road, which has not adopted corresponding rates ; but, as 
 before observed, it was not the design of the act to stifle competition, 
 nor is there an}- legal injustice in one person procuring a particular ser- 
 vice cheaper than another. ... If these tickets were withdrawn the 
 defendant road would lose a large amount of travel, and the single-trip 
 passenger would gain absolutely nothing." 
 
 The conclusions that we draw from the history and language of the
 
 TEXAS & PACIFIC K. V. INTERSTATE COMMERCE COM. 261 
 
 act, and from the decisions of our own and the English courts, are mainly 
 these : that the purpose of the act is to promote and facilitate com- 
 merce, by the adoption of regulations to make charges for transportation 
 just and reasonable, and to forbid undue and unreasonable preferences 
 or discriminations; that, in passing upon questions arising under the 
 act, the tribunal appointed to enforce its provisions, whether the com- 
 mission or the courts, is empowered to fully consider all the circumstances 
 and conditions that reasonably apply to the situation, and that in the 
 exercise of its jurisdiction the tribunal may and should consider the 
 legitimate interests as well of the carrying companies as of the traders 
 and shippers, and, in considering whether any particular locality is sub- 
 jected to an undue preference or disadvantage, the welfare of the com- 
 munities occupying the localities where the goods are delivered is to 
 be considered, as well as that of the communities which are in the 
 locality of the place of shipment; that among the circumstances and 
 conditions to be considered, as well in the case of traffic originating in 
 foreign ports as in the case of traffic originating within the limits of the 
 United States, competition that affects rates should be considered, and 
 in deciding whether rates and charges made at a low rate to secure 
 foreign freights, which would otherwise go by other competitive routes, 
 are or are not undue and unjust, the fair interests of the carrier com- 
 panies, and the welfare of the community which is to receive and con- 
 sume the commodities, are to be considered ; that if the commission, 
 instead of confining its action to redressing, on complaint made by 
 some particular person, firm, corporation, or locality, some specific 
 disregard by common carriers of provisions of the act, proposes to pro- 
 mulgate general orders, which thereby become rules of action to the 
 carrying companies, the spirit and letter of the act require that such 
 orders should have in view the purpose of promoting and facilitating 
 commerce, and the welfare of all to be affected, as well the carriers as 
 the traders and consumers of the country. 
 
 It may be said that it would be impossible for the commission to 
 frame a general order if it were necessary to enter upon so wide a field 
 of investigation, and if all interests that are liable to be affected were 
 to be considered. This criticism, if well founded, would go to show 
 that such orders are instances of general legislation, requiring an exer- 
 cise of the law making power, and that the general orders made by the 
 commission in March, 1889, and January, 1891, instead of being regu- 
 lations calculated to promote commerce and enforce the express pro- 
 visions of the act, are themselves laws of wide import, destroying some 
 branches of commerce that have long existed, and undertaking; to change 
 the laws and customs of transportation in the promotion of what is sup- 
 posed to be public policy. 
 
 This is manifest from the facts furnished us in the report and findings 
 of the commission, attached as an exhibit to the bill filed in the Circuit 
 Court. 
 
 It is stated in that report that the Illinois Central Railroad Company,
 
 2G2 TEXAS & PACIFIC K. V. INTERSTATE COMMERCE COM. 
 
 one of the respondents in the proceeding before the commission, averred 
 in its answer that it was constrained, by its obedience to the order of 
 March, 1889, to decline to take for shipment any import traffic, and, to 
 its great detriment, to refrain from the business, for the reason that, to 
 meet the action of the competing lines, it would have to make a less 
 rate on the import than on the domestic traffic. 
 
 Upon this disclosure that their order had resulted in depriving that 
 company of a valuable part of its traffic, (to say nothing of its necessary 
 effect in increasing the charges to be finally paid b}- the consumers,) 
 the commission, in its report, naively remarks, " This lets the Illinois 
 Central Railway Company out." 4 Interst. Commerce Com. R. 458. 
 
 We also learn from the same source that there was competent evi- 
 dence adduced before the commission, on the part of the Pennsylvania 
 Railroad Company, that since that company, in obedience to the order 
 of March, 1889, has charged the full inland rate on the import traffic, 
 the road's business in that particular has considerabby fallen off ; that 
 the steamship lines have never assented to the road's charging its full 
 inland rates, and have been making demands on the road for a proper 
 division of the through rate ; that, if it were definitely determined that 
 the road was not at libert}' to charge less than the full inland rate, the 
 result would be that it would effectuall}- close eveiy steamship line sail- 
 ing to and from Baltimore and Philadelphia. 
 
 The commission did not find it necessary to consider this evidence, 
 because the Pennsylvania Railroad Company was before it in the atti- 
 tude of having obeyed the order. 
 
 We do not refer to these matters for the purpose of indicating what 
 conclusions ought to have been reached hy the commission or by the 
 courts below in respect to what were proper rates to be charged by the 
 Texas & Pacific Railwa}- Company. That was a question of fact, and, 
 if the inquiry had been conducted on a proper basis, we should not 
 have felt inclined to review conclusions so reached. But we mention 
 them to show that there ruanifestby was error in excluding facts 
 and circumstances that ought to have been considered, and that this 
 error arose out of a misconception of the purpose and meaning of 
 the act. 
 
 The Circuit Court held that the order of January 29, 1891, was a law- 
 ful order, and enjoined the defendant company from carrying any article 
 of import traffic shipped from any foreign port through any port of 
 entry in the United States, or any port of entry in a foreign country 
 adjacent to the United States, upon through bills of lading, and destined 
 to any place within the United States, upon any other than the pub- 
 lished inland tariff covering the transportation of other freight of like 
 kind over its line from such port of entry to such place of destination, 
 or from charging or accepting for its share of through rates upon im- 
 ported traffic a lower sum than it charges or receives for domestic 
 traffic of like kind, to the same destination, from the point at which 
 the imported traffic enters the country.
 
 TEXAS & PACIFIC K. V. INTERSTATE COMMERCE COM. 263 
 
 In treating the facts of the case, the court says : " It must be con- 
 ceded as true, for the purposes of the present case, that the rates for 
 the transportation of traffic from Liverpool and London to San Francisco 
 are, in effect, fixed and controlled by the competition of sailing vessels 
 between these ports, and also by the competition of steamships and 
 sailing vessels in connection with railroads across the Isthmus of 
 Panama, none of which are in any respect subject to the act to regulate 
 commerce. It must also be conceded that the favorable rates given to 
 the foreign traffic are, for reasons to which it is now unnecessary to 
 revert, somewhat remunerative to the defendant ; and it must also be 
 conceded that the defendant would lose the foreign traffic, by reason of 
 the competition referred to, and the revenue derived therefrom, unless 
 it carries at the lower rates, and by so doing is enabled to get part 
 of it, which would otherwise go from London and Liverpool to San 
 Francisco, around the Horn, or by way of the Isthmus." Interstate 
 Commerce Commission v. Texas & Pacific Railway, 52 Fed. 187. 
 
 The Circuit Court did not discuss the case at length, either as to its 
 law or facts, but, in effect, approved the order of January 29, 1891, 
 as valid, and enjoined the defendant company from disregarding it. 
 
 The Circuit Court of Appeals seems to have disapproved of the con- 
 struction put on the act by the commission. . . . 
 
 Having thus intimated its dissent from, or, at least, its distrust of, 
 the view of the commission, the court proceeded to affirm the decree 
 of the Circuit Court and the valid it}' of the order of the commission, 
 upon the ground that, even if ocean competition should be regarded as 
 creating a dissimilar condition, yet that in the present case the disparity 
 in rates was too great to be justified by that condition. 
 
 This course proceeded, we think, upon an erroneous view of the posi- 
 tion of the case. That question was not presented to the consideration 
 of the Court. There was no allegation in the commission's bill or peti- 
 tion that the inland rates charged by the defendant company were 
 unreasonable. That issue was not presented. The defendant company 
 was not called upon to make any allegation on the subject. No testi- 
 mony was adduced by either party on such an issue. What the com- 
 mission complained of was that the defendant refused to recognize the 
 lawfulness of its order ; and what the defendant asserted, b}' way of 
 defence, was that the order was invalid, because the commission had 
 avowedly declined to consider certain " circumstances and conditions," 
 which, under a proper construction of the act, it ought to have con- 
 sidered. 
 
 If the Circuit Court of Appeals were of opinion that the commis- 
 sion, in making its order, had misconceived the extent of its powers, 
 and if the Circuit Court had erred in affirming the validity of an order 
 made under such misconception, the duty of the Circuit Court of Ap- 
 peals was to reverse the decree, set aside the order, and remand the 
 cause to the commission, in order that it might, if it saw fit, proceed 
 therein according to law. The defendant was entitled to have its de-
 
 264 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 
 
 fence considered, in the first instance, at least, b}- the commission, 
 upon a full consideration of all the circumstances and conditions upon 
 which a legitimate order could be founded. The questions whether cer- 
 tain charges were reasonable or otherwise, whether certain discrimina- 
 tions were due or undue, were questions of fact, to be passed upon by 
 the commission in the light of all facts duly alleged and supported In- 
 competent evidence, and it did not comport with the true scheme of the 
 statute that the Circuit Court of Appeals should undertake, of its own 
 motion, to find and pass upon such questions of fact, in a case in the 
 position in which the present one was. 
 
 We do not, of course, mean to imply that the commission ma}" not 
 directly institute proceedings in a Circuit Court of the United States 
 charging a common carrier with disregard of provisions of the act, and 
 that thus it may become the duty of the court to try the case in the 
 first instance. Nor can it be denied that, even when a petition is filed 
 by the commission for the purpose of enforcing an order of its own, the 
 court is authorized to " hear and determine the matter as a court of 
 equity," which necessarily implies that the court is not concluded by 
 the findings or conclusions of the commission ; 3 - et, as the act provides 
 that on such hearing the findings of fact in the report of said commis- 
 sion shall be prima facie evidence of the matters therein stated, we 
 think it plain that if, in such a case, the commission has failed, in its 
 proceedings, to give notice to the alleged offender, or has unduly re- 
 stricted its inquiries, upon a mistaken view of the law, the court ought 
 not to accept the findings of the commission as a legal basis for its own 
 action, but should either inquire into the facts on its own account, or 
 send the case back to the commission to be lawfully proceeded in. 
 
 The mere fact that the disparity between the through and the local 
 rates was considerable, did not, of itself, warrant the court in finding 
 that such disparity constituted an undue discrimination. Much less did 
 it justify the court in finding that the entire difference between the two 
 rates was undue or unreasonable, especially as there was no person, 
 firm, or corporation complaining that he or they had been aggrieved by 
 such disparity. 
 
 The decree of the Circuit Court of Appeals is reversed. The de- 
 cree of the Circuit Court is also reversed, and the cause is remanded 
 to that court, with directions to dis?niss the bill. 
 
 Mr. Justice Harlan, with whom concurred Mr. Justice Brown, 
 dissenting. 1 
 
 The question is presented whether the Texas & Pacific Railway 
 Company can, consistently with the act of Congress, charge a higher 
 rate for the transportation of goods starting from New Orleans and 
 destined to San Francisco than for the transportation between the same 
 places of goods of the same kind in all the elements of bulk, weight, 
 
 1 Part of this opinion is omitted. — Ed.
 
 TEXAS & PACIFIC R. V. INTERSTATE COMMERCE COM. 265 
 
 value, and expense of carnage, brought to New Orleans from Liverpool 
 on a through bill of lading, and to be carried to San Francisco. If this 
 question be answered in the affirmative; if all the railroad companies 
 whose lines extend inland from the Atlantic and Pacific seaboards in- 
 dulge in like practices, and if one may do so, all may and will do so ; 
 if such discrimination by American railways, having arrangements with 
 foreign companies, against goods, the product of American skill, enter- 
 prise, and labor, is consistent with the act of Congress — then the title 
 of that act should have been one to regulate commerce to the injury of 
 American interests, and for the benefit of foreign manufacturers and 
 dealers. . . . 
 
 I am unable to find in these sections any authorit} T for the commis- 
 sion, or for a carrier subject to the provisions of the act of Congress, to 
 take into consideration the rates established by ocean lines as affecting 
 the charges that an American carrier may make for the transportation 
 of propert}' over its routes. . . . 
 
 Congress intended that all property transported by a carrier subject 
 to the provisions of the act should be carried without an}' discrimina- 
 tion because of its origin. The rule intended to be established was one 
 of equality in charges, as between a carrier and all shippers, in respect 
 of like and contemporaneous service performed by the carrier over its 
 line, between the same points, without discrimination based upon con- 
 ditions and circumstances arising out of that carrier's relations with 
 other carriers or companies, especially those who cannot be controlled 
 by the laws of the United States. . . . 
 
 It seems to me that any other interpretation of the act of Congress 
 puts it in the power of railroad companies which have established, or 
 may establish, business arrangements with foreign companies engaged 
 in ocean transportation, to do the grossest injustice to American inter- 
 ests. I find it impossible to believe that Congress intended that freight 
 originating in Europe or Asia and transported by an American railway 
 from an American port to another part of the United States could 
 be given advantages in the matter of rates, for services performed 
 in this country, which are denied to like freight originating in this 
 countiy, and passing over the same line of railroad between the same 
 points. To say that Congress so intended is to say that its purpose 
 was to subordinate American interests to the interests of foreign coun- 
 tries and foreign corporations. Such a result will necessarily follow 
 from any interpretation of the act that enables a railroad company to 
 exact greater compensation for the transportation from an American 
 port of entry, of merchandise originating in this country, than is ex- 
 acted for the transportation over the same route of exacth' the same 
 kind of merchandise brought to that port from Europe or Asia, on a 
 through bill of lading, under an arrangement with an ocean transporta- 
 tion company. Under such an interpretation the rule established by 
 Congress to secure the public against unjust discrimination by carriers 
 subject to the provisions of the Interstate Commerce Act would be dis-
 
 266 TEXAS & PACIFIC K. V. INTERSTATE COMMERCE COM. 
 
 placed by a rule practically established in foreign countries by foreign 
 companies, acting in combination with American railroad corporations 
 seeking, as might well be expected, to increase their profits, regardless 
 of the interests of the public or of individuals. 
 
 I am not much impressed by the anxiety which the railroad company 
 professes to have for the interests of the consumers of foreign goods 
 and products brought to this country under an arrangement as to rates 
 made b}* it with ocean transportation lines. We are dealing in this 
 case only with a question of rates for the transportation of goods from 
 New Orleans to San Francisco over the defendant's railroad. The 
 consumers at San Francisco, or those who may be supplied from that 
 city, have no concern whether the goods reach them b}- way of railroad 
 from New Orleans, or by water around Cape Horn, or by the route 
 across the Isthmus of Panama. . . . 
 
 It is said that the Interstate Commerce Commission is entitled to take 
 into consideration the interests of the carrier. My view is that the act 
 of Congress prescribes a rule which precludes the commission or the 
 courts from taking into consideration any facts outside of the inquiry, 
 whether the carrier, for like and contemporaneous services, performed 
 in this country under substantially similar circumstances and conditions, 
 ma} T charge one shipper more or less than he charges another shipper 
 of like goods over the same route, and between the same points. Un- 
 doubtedly, the carrier is entitled to reasonable compensation for the 
 service it performs. But the necessity that a named carrier shall se- 
 cure a particular kind of business is not a sufficient reason for permit- 
 ting it to discriminate unjustly against American shippers, by denying 
 to them advantages granted to foreign shippers. Congress has not 
 legislated upon such a theory. It has not said that the inquiry whether 
 the carrier has been guilty of unjust discrimination shall depend upon 
 the financial necessities of the carrier. On the contrary, its purpose 
 was to correct the evils that had arisen from unjust discrimination made 
 by carriers engaged in interstate commerce. It has not, I think, de- 
 clared, nor can I suppose it will ever distinctly declare, that an Ameri- 
 can railway company, in order to secure for itself a particular business, 
 and realize a profit therefrom, may burden interstate commerce in arti- 
 cles originating in this country by imposing higher rates for the trans- 
 portation of such articles from one point to another point in the United 
 States than it charges for the transportation between the same points, 
 under the same circumstances and conditions, of like articles originating 
 in Europe, and received by such company on a through hill of lading 
 issued abroad. Does an}' one suppose that if the Interstate Commerce 
 bill, as originally presented, had declared, in express terms, that an 
 American railroad company might charge more for the transportation 
 of American freight between two given places in this country than it 
 charged for foreign freight between the same points, that a single legis- 
 lator would have sanctioned it by his vote? Does any one suppose that 
 an American President would have approved such legislation? . . ,
 
 WIGHT V. UNITED STATES. 2 i 
 
 I cannot accept this view, and therefore dissent from the opinion and 
 judgment of the court. 
 
 I am authorized by Mr. Justice Brown to say that he concurs in this 
 opinion. 
 
 Mr. Chief Justice Fuller, dissenting. 
 
 In my judgment, the second and third sections of the Interstate 
 Commerce Act are rigid rules of action, binding the commission as well 
 as the railwaj' companies. The similar circumstances and conditions 
 referred to in the act are those under which the traffic of the railways 
 is conducted, and the competitive conditions which may be taken into 
 consideration by the commission are the competitive conditions within 
 the field occupied by the carrier, and not competitive conditions arising 
 wholly outside of it. 
 
 I am therefore constrained to dissent from the opinion and judgment 
 of the court. 
 
 WIGHT v. UNITED STATES. 
 Supreme Court of the United States, 1897. 
 
 [167 U. S. 512.] 
 
 Mr. Justice Brewer delivered the opinion of the court. 1 
 In order to induce Mr. Bruening to transfer his transportation from 
 a competing road to its own line, the Baltimore & Ohio Railroad Com- 
 pany, through the defendant, in the first place, made an arrangement 
 b} T which, for 15 cents per hundred weight, it would bring the beer from 
 Cincinnati, and deliver it at his warehouse ; that afterwards this ar- 
 rangement was changed, and it delivered the beer to Mr. Bruening at 
 its depot, and allowed him 3h cents per hundred for carting it to his 
 warehouse. As Mr. Bruening had the benefit of a siding connection 
 with the competing road, and could get the beer delivered over that road 
 at his warehouse for 15 cents, it apparent!} could not induce him to 
 transfer his business from the other road to its own without extending 
 to him this rebate. During all this time it was carrying beer for Mr. 
 Wolf from the same place of shipment (Cincinnati) to the same depot 
 in Pittsburg, and charging him 15 cents therefor. Mr. Wolf had no 
 siding connection with the rival road, and therefore had to pay for his 
 cartage, by whichever road it was carried. His warehouse was, in a 
 direct line, 140 j'ards from the depot, while Mr. Bruening's was 172 
 yards, though the latter generally carted the beer b} T a longer route, on 
 account of the steepness of the ascent. Now, it is contended by the 
 defendant that it was necessary for the Baltimore & Ohio Company to 
 
 1 Part of the opinion is omitted — Ed.
 
 268 WIGHT V. UNITED STATES. 
 
 offer this inducement to Mr. Bruening in order to get his business, and 
 not necessary to make the like offer to Mr. Wolf, because he would 
 have to go to the expense of carting. Iry whichever road he transported ; 
 that therefore the traffic was not " under substantially similar circum- 
 stances and conditions," within the terms of section 2. We are unable 
 to concur in this view. Whatever the Baltimore & Ohio Company 
 might lawfully do to draw business from a competing line, whatever 
 inducements it might offer to the customers of that competing line to 
 induce them to change their carrier, is not a question involved in this 
 case. The wrong prohibited by the section is a discrimination between 
 shippers. It was designed to compel even - carrier to give equal rights 
 to all shippers over its own road, and to forbid it by any device to en- 
 force higher charges against one than another. Counsel insist that the 
 purpose of the section was not to prohibit a carrier from rendering 
 more service to one shipper than to another for the same charge, but 
 only that for the same service the charge should be equal, and that the 
 effect of this arrangement was simply the rendering to Mr. Bruening of 
 a little greater service for the 15 cents than it did to Mr. Wolf. They 
 say that the section contains no prohibition of extra service or extra 
 privileges to one shipper over that rendered to another. They ask 
 whether, if one shipper has a siding connection with the road of a car- 
 rier, it cannot run the cars containing such shipper's freight onto that 
 siding, and thus to his warehouse, at the same rate that it runs cars to 
 its own depot, and there delivers goods to other shippers who are not 
 so fortunate in the matter of sidings. But the service performed in 
 transporting from Cincinnati to the depot at Pittsburg was precisely 
 alike for each. The one shipper paid 15 cents a hundred; the other, 
 in fact, but ll£ cents. It is true, he formally paid 15 cents, but he 
 received a rebate of 31- cents ; and regard must always be had to the 
 substance, and not to the form. Indeed, the section itself forbids the 
 carrier, "directly or indirectly by any special rate, rebate, drawback, or 
 other device," to charge, demand, collect, or receive from any person 
 or persons a greater or less compensation, etc. And section 6 of the 
 act, as amended in 1889, throws light upon the intent of the statute; 
 for it requires the common carrier, in publishing schedules, to "state 
 separately the terminal charges, and any rules or regulations which in 
 anywise change, affect or determine any part or the aggregate of such 
 aforesaid rates and fares and charges." It was the purpose of the sec- 
 tion to enforce equality between shippers, and it prohibits any rebate 
 or other device b} r which two shippers, shipping over the same line, the 
 same distance, under the same circumstances of carriage, are compelled 
 to pay different prices therefor. 
 
 It may be that the phrase, "under substantially similar circumstances 
 and conditions," found in section 4 of the act, and where the matter 
 of the long and short haul is considered, ma}- have a broader mean- 
 ing or a wider reach than the same phrase found in section 2. It 
 will be time enough to determine that question when it is presented.
 
 INTERST. COMMERCE COM. V. DETROIT, GRAND HAVEN, ETC. R. 269 
 
 For this case it is enough to hold that that phrase, as found in 
 section 2, refers to the matter of carriage, and does not include 
 competition. 
 
 We see no error in the record, and the judgment of the District Court 
 is affirmed. 
 
 Mr. Justice White concurs in the judgment. 
 
 INTERSTATE COMMERCE COMMISSION v. DETROIT, 
 GRAND HAVEN, & MILWAUKEE RAILWAY. 
 
 Supreme Court of the United States, 1897. 
 [167 U. S. 633.] 
 
 Mr. Justice Shiras delivered the opinion of the court. 1 
 
 The petition of Stone & Carten, retail merchants at Ionia, addressed 
 to the Interstate Commerce Commission, alleged violations by the 
 railway company of sections 2, 3, and 4 of the Interstate Commerce 
 Act. 
 
 The opinion of the commission sustained the petition avowedly 
 under section 4 of the act. . . . 
 
 The sole complaint urged is that the railway company carts goods 
 to and from its station or warehouse at Grand Rapids without charg- 
 ing its customers for such service, while its customers at Ionia are 
 left themselves to bring their goods to and take them from the com- 
 pany's warehouse, and that, in its schedules posted and published at 
 Grand Rapids, there is no notice or statement by the company of the 
 fact that it furnishes such cartage free of charge. These acts are 
 claimed to constitute violations of sections 4 and 6 of the Interstate 
 Commerce Act. . . . 
 
 For a period of upward of twenty-five years before these proceed- 
 ings this company has openly and notoriously, at its own expense, 
 transferred goods and merchandise to and from its warehouse to the 
 places of business of its patrons in the city of Grand Rapids. The 
 station of the company, though within the limits of the city, is dis- 
 tant, on an average, 1^ miles from the business sections of the city 
 where the traffic of the places tributary to the company's road origi- 
 nates and terminates. . . . 
 
 Under the facts as found and the concessions as made, the Com- 
 mission's proposition may be thus stated. There is, conventionally, 
 no difference, as to distance, between Ionia and Grand Rapids, and 
 the same rates and charges for like kinds of property are properly 
 made in the case of both cities. But, as there is an average distance 
 
 1 Part of the opiuiou is omitted.
 
 270 INTERST. COMMERCE COM. V. DETROIT, GRAND HAVEN, ETC. R. 
 
 of 1^ of a mile between the station at Grand Rapids and the ware- 
 houses and offices of the shippers and consignees, such average dis- 
 tance must be regarded as part of the railway company's line, if the 
 company furnishes transportation facilities for such distance; and if 
 it refrains from making any charge for such transportation facilities, 
 and fails to furnish the same facilities at Ionia, this is equivalent to 
 charging and receiving a greater compensation in the aggregate for 
 the transportation of a like kind of property for a shorter than for a 
 longer distance over the same line, in the same direction, the shorter 
 being included within the longer distance. 
 
 The Circuit Court of Appeals was of opinion that this proposition 
 is based on a false assumption, namely, that the distance between 
 the company's station and the warehouses of the shippers and con- 
 signees is part of the company's railway line, or is made such by the 
 act of the company in furnishing vehicles and men to transport the 
 goods to points throughout the city of Grand Rapids. The view of 
 that court was that the railway transportation ends when the goods 
 reach the terminus or station and are there unshipped, and that any- 
 thing the company does afterwards, in the way of land transporta- 
 tion, is a new and distinct service, not embraced in the contract for 
 railway carriage. The court, in a learned opinion by District Judge 
 Hammond, enforced this view by a reference to numerous English 
 cases, which hold that the collecting and delivery of goods is a sepa- 
 rate and distinct busiuess from that of railway carriage; that, when 
 railroad companies undertake to do for themselves this separate 
 busiuess, they thereby are subjected to certain statutory regulations 
 and restrictions in respect to such separate business ; and that they 
 cannot avoid such restrictions by making a consolidated charge for 
 the railway and cartage service. 43 U. S. App. 808. 
 
 "VVe agree with the Circuit Court of Appeals jn thinking that the 
 fourth section of the Interstate Commerce Act has in view only the 
 transportation of passengers and property by rail, and that, when 
 the passengers and property reached and were discharged from the 
 cars at the company's warehouse or station at Grand Rapids, for the 
 same charges as those received for similar service at Ionia, the duties 
 and obligations cast upon this company by the fourth section were 
 fulfilled and satisfied. The subsequent history of the passengers and 
 property, whether carried to their places of abode and of business by 
 their own vehicles, or by those furnished by the railway company, 
 would not concern the Interstate Commerce Commission. . 
 
 The decree of the Circuit Court of Appeals is affirmed.
 
 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 271 
 
 INTERSTATE COMMERCE COMMISSION v. ALABAMA 
 
 MIDLAND RAILWAY. 
 
 Supreme Court of the United States, 1897. 
 
 [168 if. S. 144.] 
 
 On the 27th day of June, 1892, the board of trade of Troy, Ala., 
 filed a complaint before the Interstate Commerce Commission, at 
 Washington, D. C, against the Alabama Midland Railway Company 
 and the Georgia Central Railroad Company and their connections; 
 claiming that, in the rates charged for transportation of property by 
 the railroad companies mentioned, and their connecting lines, there 
 was a discrimination against the town of Troy, in violation of the 
 terms and provisions of the Interstate Commerce Act of Congress of 
 1887. 
 
 The general ground of complaint was that, Troy being in active 
 competition for business with Montgomery, the defendant lines of 
 railway unjustly discriminate in their rates against the former, and 
 gave the latter an undue preference or advantage, in respect to certain 
 commodities and classes of traffic. 1 . . . 
 
 The commission, having heard this complaint on the evidence 
 theretofore taken, ordered, on the 15th day of August, 1893, the 
 roads participating in the traffic involved in this case " to cease 
 and desist " from charging, demanding, collecting, or receiving any 
 greater compensation in the aggregate for services rendered in such 
 transportation than is specified. . . . 
 
 The defendants having failed to heed these orders, the commission 
 thereupon filed this bill of complaint in the Circuit Court of the 
 United States for the Middle District of Alabama, in equity, to com- 
 pel obedience to the same. 
 
 Mr. Justice Shiras delivered the opinion of the court. 
 
 Several of the assignments of error complain of the action of the 
 Circuit Court of Appeals in not rendering a decree for the enforce- 
 ment of those portions of the order of the Interstate Commerce Com- 
 mission which prescribed rates to be thereafter charged by the 
 defendant companies for services performed in the transportation of 
 goods. 
 
 Discussion of those assignments is rendered unnecessary by the 
 recent decisions of this court, wherein it has been held, after elabo- 
 rate argument, that Congress has not conferred upon the Interstate 
 Commerce Commission the legislative power of prescribing rates, 
 either maximum, or minimum, or absolute, and that, as it did not give 
 the express power to the commission, it did not intend to secure the 
 same result indirectly, by empowering that tribunal, after having 
 
 1 Part of the statement of facts is omitted. — Ed.
 
 272 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 
 
 determined what, in reference to the past, were reasonable and just 
 rates, to obtain from the courts a peremptory order that in the future 
 the railroad companies should follow the rates thus determined to 
 have been in the past reasonable and just. Cincinnati, New Orleans, 
 & Texas Pacific Railway v. Interstate Commerce Commission, 162 
 U. S. 184; Interstate Commerce Commission v. Cincinnati, New 
 Orleans, & Texas Pacific Railway, 167 U. S. 479. 
 
 Errors are likewise assigned to the action of the court in having 
 failed and refused to affirm and enforce the report and opinion of the 
 commission, wherein it was found and decided, among other things, 
 that the defendant common carriers which participate in the trans- 
 portation of class goods to Troy from Louisville, St. Louis, and 
 Cincinnati, and from New York, Baltimore, and other Northeastern 
 points, and the defendants, common carriers which participate in the 
 transportation of phosphate rock from South Carolina and Florida to 
 Troy, and the defendants, common carriers which participate in the 
 transportation of cotton from Troy to the ports of New Orleans, 
 Brunswick, Savannah, Charleston, West Point, or Norfolk, as local 
 shipments, or for export, have made greater charges, under substan- 
 tially similar circumstances and conditions, for the shorter distance 
 to or from Troy than for longer distances over the same lines in the 
 same direction, and have unjustly discriminated in rates against 
 Troy, and subjected said place and dealers and shippers therein to 
 undue and unreasonable prejudice and disadvantage in favor of 
 Montgomery, Eufaula, Columbus, and other places and localities, 
 and dealers and shippers therein, in violation of the provisions of 
 the act to regulate commerce. 
 
 Whether competition between lines of transportation to Mont- 
 gomery, Eufaula, and Columbus justifies the giving to those cities 
 a preference or advantage in rates over Troy, and, if so, whether 
 such a state of facts justifies a departure from equality of rates 
 without authority from the Interstate Commerce Commission, under 
 the proviso to the fourth section of the act, are questions of con- 
 struction of the statute, and are to be determined before we reach the 
 question of fact in this case. 
 
 It is contended in the briefs filed on behalf of the Interstate Com- 
 mission that the existence of rival lines of transportation, and con- 
 sequently of competition for the traffic, are not facts to be considered 
 by the commission or by the courts when determining whether prop- 
 erty transported over the same line is carried under " substantially 
 similar circumstances and conditions," as that phrase is found in 
 the fourth section of the act. 
 
 Such, evidently, was not the construction put upon this provision 
 of the statute by the Commission itself in the present case, for the 
 record discloses that the Commission made some allowance for the 
 alleged dissimilarity of circumstances and conditions, arising out of 
 competition and situation, as affecting transportation to Montgomery
 
 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 2 , 3 
 
 and Troy, respectively, and that among the errors assigned is one 
 complaining that the court erred in not holding that the rates pre- 
 scribed by the commission in its order made due allowance for such 
 dissimilarity. 
 
 So, too, in In re Louisville & Nashville Railroad, 1 Interst. Com- 
 merce Com. R. 31, 78, in discussing the long and short haul clause, it 
 was said by the Commission, per Judge Cooley, that " it is impos- 
 sible to resist the conclusion that in finally rejecting the ' long and 
 short haul clause' of the house bill, which prescribed an inflexible 
 rule, not to be departed from in any case, and retaining in substance 
 the fourth section as it had passed the Senate, both houses under- 
 stood that they were not adopting a measure of strict prohibition in 
 respect to charging more for the shorter than for the longer distance, 
 but that they were, instead, leaving the door open for exceptions in 
 certain cases, and, among others, in cases where the circumstances 
 and conditions of the traffic were affected by the element of competi- 
 tion, and where exceptions might be a necessity if the competition 
 was to continue. And water competition was, beyond doubt, espe- 
 cially in view." 
 
 It is no doubt true that in a later case (Railroad Commission of 
 Georgia v. Clyde S. S. Co., 5 Interst. Commerce Com. R. 326) the 
 commission somewhat modified their holding in the Louisville & 
 Nashville Railroad Company Case, just cited, by attempting to 
 restrict the competition that it is allowable to consider to the cases 
 of competition with water carriers, competition with foreign rail- 
 roads, and competition with railroad lines wholly in a single State; 
 but the principle that competition in such cases is to be considered 
 is affirmed. 
 
 That competition is one of the most obvious and effective circum- 
 stances that make the conditions under which a long and short haul 
 is performed substantially dissimilar, and as such must have been 
 in the contemplation of Congress in the passage of the act to regu- 
 late commerce, has been held by many of the Circuit Courts. It is 
 sufficient to cite a few of the number: Ex parte Koehler, 31 Fed. 
 315; Missouri Pacific Ry. v. Texas & Pacific Ry., Id. 862; Inter- 
 state Commerce Commission v. Atchison, T. & S. F. Railroad, 50 
 Fed. 295; Interstate Commerce Commission v. New Orleans & Texas 
 Pacific Railroad, 56 Fed. 925, 943; Behlmer v. Louisville & Nash- 
 ville Railroad, 71 Fed. 835; Interstate Commerce Commission v. 
 Louisville & Nashville Railroad, 73 Fed. 409. 
 
 In construing statutory provisions forbidding railway companies 
 from giving any undue or unreasonable preference or advantage to 
 or in favor of any particular persou or company, or any particular 
 description of traffic, in any respect whatever, the English courts 
 have held, after full consideration, that competition between rival 
 lines is a fact to be considered, and that a preference or advantage 
 theuce arising is not necessarily undue or unreasonable. Uenaby 
 
 18
 
 274 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 
 
 Main Colliery Co. v. Manchester, Sheffield, & Lincolnshire Railway, 
 11 App. Cas. 97; Phipps v. London & Northwestern Railway, [1892] 
 2 Q. B. 229. 
 
 But the question whether competition, as affecting rates, is an 
 element for the Commission and the courts to consider in applying 
 the provisions of the act to regulate commerce, is not an open ques- 
 tion in this court. 
 
 In Interstate Commerce Commission v. Baltimore & Ohio Rail- 
 road, 145 U. S. 263, it was said, approving observations made by 
 Jackson, Circuit Judge (43 Fed. 37), that the act to regulate com- 
 merce was " not designed to prevent competition between different 
 roads, or to interfere with the customary arrangements made by rail- 
 way companies for reduced fares in consideration of increased mileage, 
 where such reduction did not operate as an unjust discrimination 
 against other persons travelling over the road; in other words, it was 
 not intended to ignore the principle that one can sell at wholesale 
 cheaper than at retail; that it is not all discriminations or prefer- 
 ences that fall within the inhibitions of the statute, — only such as 
 are unjust or unreasonable"; and, accordingly, it was held that the 
 issue by a railway company, engaged in interstate commerce, of a 
 "party-rate ticket" for the transportation of ten or more persons 
 from a place situated in one State or Territory to a place situated in 
 another State or Territory, at a rate less than that charged to a single 
 individual for a like transportation on the same trip, does not thereby 
 make " an unjust or unreasonable charge " against such individual, 
 within the meaning of the first section of the act to regulate com- 
 merce, nor make " an unjust discrimination " against him, within the 
 meaning of the second section, nor give " an undue or unreasonable 
 preference or advantage" to the purchasers of the party-rate ticket, 
 within the meaning of the third section. 
 
 In Texas & Pacific Railway v. Interstate Commerce Commission, 
 162 U. S. 197, it was held that, " in passing upon questions arising 
 under the act, the tribunal appointed to enforce its provisions, 
 whether the commission or the courts, is empowered to fully con- 
 sider all the circumstances and conditions that reasonably apply to 
 the situation, and that, in the exercise of its jurisdiction, the tri- 
 bunal may and should consider the legitimate interests as well of 
 the carrying companies as of the traders and shippers, and, in con- 
 sidering whether any particular locality is subjected to an undue 
 preference or disadvantage, the welfare of the communities occupy- 
 ing the localities where the goods are delivered is to be considered as 
 well as that of the communities which are in the locality of the place 
 of shipment; that among the circumstances and conditions to be 
 considered, as well in the case of traffic originating in foreign ports 
 as in the case of traffic originating within the limits of the United 
 States, competition that affects rates should be considered, and in de- 
 ciding whether rates and charges, made at a low rate to secure foreign
 
 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 2 , 5 
 
 freights which would otherwise go by other competitive routes, are 
 or are not undue and unjust, the fair interests of the carrier com- 
 panies and the welfare of the community which is to receive and 
 consume the commodities are to be considered." 
 
 To prevent misapprehension, it should be stated that the conclu- 
 sion to which we are led by these cases, that, in applying the pro- 
 visions of the third and fourth sections of the act, whicu make it 
 unlawful for common carriers to make or give any undue or unrea- 
 sonable preference or advantage to any particular person or locality, 
 or to charge or receive any greater compensation in the aggregate 
 for the transportation of passengers or of like kind of property, 
 under substantially similar circumstances and conditions, for a 
 shorter than for a longer distance over the same line, in the same 
 direction, competition which affects rates is one of the matters to 
 be considered, is not applicable to the second section of the 
 act. 
 
 As we have shown in the recent case of Wight v. U. S., 167 U. S. 
 512, the purpose of the second section is to enforce equality between 
 shippers over the same line, and to prohibit any rebate or other de- 
 vice by which two shippers, shipping over the same line, the same 
 distance, under the same circumstances of carriage, are compelled 
 to pay different prices therefor; and we there held that the phrase, 
 "under substantially similar circumstances and conditions," as used 
 in the second section, refers to the matter of carriage, and does not 
 include competition between rival routes. 
 
 This view is not open to the criticism that different meanings are 
 attributed to the same words when found in different sections of the 
 act; for what we hold is that, as the purposes of the several sections 
 are different, the phrase under consideration must be read, in the 
 second section, as restricted to the case of shippers over the same 
 road, thus leaving no room for the operation of competition, but that 
 in the other sections, which cover the entire tract of interstate and 
 foreign commerce, a meaning must be given to the phrase wide 
 enough to include all the facts that have a legitimate bearing on the 
 situation, among which we find the fact of competition when it 
 affects rates. 
 
 In order further to guard against any misapprehension of the scope 
 of our decision, it may be well to observe that we do not hold that 
 the mere fact of competition, no matter what its character or extent, 
 necessarily relieves the carrier from the restraints of the third and 
 fourth sections, but only that these sections are not so stringent and 
 imperative as to exclude in all cases the matter of competition from 
 consideration, in determining the questions of " undue or unreason- 
 able preference or advantage," or what are " substantially similar 
 circumstances and conditions." The competition may in some cases 
 be such as, having due regard to the interests of the public and of 
 the carrier, ought justly to have effect upon the rates, and in such
 
 276 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 
 
 cases there is no absolute rule which prevents the commission or the 
 courts from taking that matter into consideration. 
 
 It is further contended, on behalf of the appellant, that the courts 
 below erred in holding, in effect, that competition of carrier with 
 carrier, both subject to the act to regulate commerce, will justify a 
 departure from the rule of the fourth section of the act without 
 authority from the Interstate Commerce Commission, under the pro- 
 viso to that section. 
 
 In view of the conclusion hereinbefore reached, the proposition 
 comes to this: that when circumstances and conditions are substan- 
 tially dissimilar the railway companies can only avail themselves of 
 such a situation by an application to the commission. 
 
 The language of the proviso is as follows : — 
 
 "That upon application to the Commission appointed under the 
 provisions of this act, such common carrier may, in special cases, 
 after investigation by the Commission, be authorized to charge less 
 for longer than shorter distances for the transportation of persons or 
 property, and the Commission may from time to time prescribe the 
 extent to which such designated common carrier may be relieved from 
 the operation of this section of this act." 
 
 The claim now made for the Commission is that the only body 
 which has the power to relieve railroad companies from the operation 
 of the long and short haul clause on account of the existence of com- 
 petition, or any other similar element which would make its applica- 
 tion unfair, is the Commission itself, which is bound to consider the 
 question, upon application by the railroad company, but whose de- 
 cision is discretionary and unreviewable. 
 
 The first observation that occurs on this proposition is that there 
 appears to be no allegation in the bill or petition raising such an 
 issue. The gravamen of the complaint is that the defendant com- 
 panies have continued to charge and collect a greater compensation 
 for services rendered in transportation of property than is prescribed 
 in the order of the Commission. It was not claimed that the defend- 
 ants were precluded from showing in the courts that the difference of 
 rates complained of was justified by dissimilarity of circumstances 
 and conditions, by reason of uot having applied to the Commission 
 to be relieved from the operation of the fourth section. 
 
 Moreover, this view of the scope of the proviso to the fourth sec- 
 tion does not appear to have ever been acted upon or enforced by the 
 Commission. On the contrary, in the case of In re Louisville & Nash- 
 ville Railroad v. Interstate Commerce Commission, 1 Interst. Com- 
 merce Com. R. 31, 57, the Commission, through Judge Cooley, said, 
 in speaking of the effect of the introduction into the fourth section 
 of the words, " under substantially similar circumstances and condi- 
 tions," and of the meaning of the proviso: " That which the act does 
 not declare unlawful must remain lawful, if it was so before; and 
 that which it fails to forbid the carrier is left at liberty to do, with-
 
 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 277 
 
 out permission of any one. . . . The charging or receiving the 
 greater compensation for the shorter than for the longer haul is seen 
 to be forbidden only when both are under substantially similar cir- 
 cumstances and conditions; and therefore, it' in any case the carrier, 
 without first obtaining an order of relief, shall depart from the gen- 
 eral rule, its doing so will not alone convict it of illegality, since, 
 if the circumstances and conditions of the two hauls are dissimilar, 
 the statute is not violated. . . . Beyond question, the carrier must 
 judge for itself what are the ' substantially similar circumstances and 
 conditions' which preclude the special rate, rebate, or drawback 
 which is made unlawful by the second section, since no tribunal is 
 empowered to judge for it until after the carrier has acted, and then 
 only for the purpose of determining whether its action constitutes a 
 violation of law. The carrier judges on peril of the consequences, 
 but the special rate, rebate, or drawback which it grants is not ille- 
 gal when ij: turns out that the circumstances and conditions were not 
 such as to forbid it; and, as Congress clearly intended this, it must 
 also, when using the same words in the fourth section, have intended 
 that the carrier whose privilege was in the'same way limited by them 
 should in the same way act upon its judgment of the limiting cir- 
 cumstances and conditions." 
 
 The view thus expressed has been adopted in several of the Circuit 
 Courts. Interstate Commerce Commission v. Atchison, Topeka, &c. 
 Railroad, 50 Fed. 295, 300; Interstate Commerce Commission v. Cin- 
 cinnati, N. O. & Tex. Pac. Ry., 56 Fed. 925,942; Behlmer v. Louisville 
 & Nashville Railroad, 71 Fed. 835, 839. And we do not think the 
 courts below erred in following it in the present case. We are unable 
 to suppose that Congress intended, by the fourth section and the pro- 
 viso thereto, to forbid common carriers, in cases where the circum- 
 stances and conditions are substantially dissimilar, from making 
 different rates until and unless the Commission shall authorize them 
 so to do. Much less do we think that it was the intention of Con- 
 gress that the decision of the Commission, if applied to, could not 
 be reviewed by the courts. The provisions of section 1G of the act, 
 which authorize the court to " proceed to hear and determine the 
 matter speedily as a court of equity, and without the formal plead- 
 ings and proceedings applicable to ordinary suits in equity, but in 
 such manner as to do justice in the premises, and to this end such 
 court shall have power, if it think fit, to direct and prosecute in such 
 mode and by such persons as it may appoint, all such inquiries as 
 the court may think needful to enable it to form a just judgment in 
 the matter of such petition," extend as well to an inquiry or proceed- 
 ing under the fourth section as to those arising under the other sec- 
 tions of the act. 
 
 Upon these conclusions, that competition between rival routes is 
 one of the matters which may lawfully be considered in making rates, 
 and that substantial dissimilarity of circumstances and conditions
 
 278 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 
 
 may justify common carriers in charging greater compensation 
 for the transportation of like kinds of property for a shorter than 
 for a longer distance over the same line, we are brought to con- 
 sider whether, upon the evidence in the present case, the courts 
 below erred in dismissing the Interstate Commerce Commission's 
 complaint. 
 
 As the third section of the act, which forbids the making or giv- 
 ing any undue or unreasonable preference or advantage to an}* par- 
 ticular person or locality, does not define what, under that section, 
 shall constitute a preference or advantage to be undue or unreason- 
 able, and as the fourth section, which forbids the charging or re- 
 ceiving greater compensation in the aggregate for the transportation 
 of like kinds of property for a shorter than for a longer distance 
 over the same line, under substantially similar circumstances and 
 conditions, does not define or describe in what the similarity or dis- 
 similarity of circumstances and conditions shall consist, it cannot be 
 doubted that whether, in particular instances, there has been an 
 undue or unreasonable prejudice or preference, or whether the cir- 
 cumstances and conditions of the carriage have been substantially 
 similar or otherwise, are questions of fact, depending on the matters 
 proved in each case. Denaby Main Colliery Co. v. Manchester, &c. 
 Ry. Co., 3 Railway & Can. Cas. 426; Phipps v. London & North- 
 western Railway, [1892] 2 Q. B. 229; Cincinnati, N. O. & Tex. 
 Pac. Ry. v. Interstate Commerce Commission, 162 U. S. 184, 194; 
 Texas & Pacific Railway v. Interstate Commerce Commission, 162 
 U. S. 197, 235. 
 
 The Circuit Court, after a consideration of the evidence, expressed 
 its conclusion thus: — 
 
 " In any aspect of the case, it seems impossible to consider this 
 complaint of the board of trade of Troy against the defendant rail- 
 road companies, particularly the Midland and Georgia Central Rail- 
 roads, in the matter of the charges upon property transported on their 
 roads to or from points east or west of Troy, as specified and com- 
 plained of, obnoxious to the fourth or any other section of the Inter- 
 state Commerce Act. The conditions are not substantially the same, 
 and the circumstances are dissimilar, so that the case is not within 
 the statute. The case made here is not the case as it was made be- 
 fore the Commission. New testimonv has been taken, and the con- 
 elusion reached is that the bill is not sustained; that it should be 
 dismissed; and it is so ordered." 69 Fed. 227. 
 
 The Circuit Court of Appeals, in affirming the decree of the Cir- 
 cuit Court, used the following language: — 
 
 kt Only two railroads, the Alabama Midland and the Georgia Cen- 
 tral,, reach Troy. Each of these roads has connection with other 
 lines, parties hereto, reaching all the long-distance markets men- 
 tioned in these proceedings. The commission finds that no depart- 
 ure from the long and short haul rule of the fourth section of the
 
 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 279 
 
 statute, as against Troy, as the shorter distance point, and in favor 
 of Montgomery, as the longer distance point, appears to be charge- 
 able to the Georgia Central. The rates in question, when separately 
 considered, are not unreasonable or unjust. As a matter of business 
 necessity, they are the same by each of the railroads that reach Troy. 
 The Commission concludes that as related to the rates to Mont- 
 gomery, Columbus, and Eufaula the rates to and from Troy unjustly 
 discriminate against Troy, and, in the case of the Alabama Midland, 
 violate the long and short haul rule. 
 
 " The population and volume of business at Montgomery are 
 many times larger than at Troy. There are many more railway 
 lines running to and through Montgomery, connecting with all the 
 distant markets. The Alabama River, open all the year, is capable, 
 if need be, of bearing to Mobile, on the sea, the burden of all the 
 goods of every class that pass to or from Montgomery. The compe- 
 tition of the railway lines is not stifled, but is fully recognized, 
 intelligently and honestly controlled and regulated, by the traffic 
 association, in its schedule of rates. There is no suggestion in the 
 evidence that the traffic managers who represent the carriers that are 
 members of that association are incompetent, or under the bias of 
 any personal preference for Montgomery or prejudice against Troy, 
 that has led them, or is likely to lead them, to unjustly discriminate 
 against Troy. When the rates to Montgomery were higher a few 
 years ago than now, actual active water line competition by the river 
 came in, and the rates were reduced to the level of the lowest prac- 
 tical paying water rates; and the volume of carriage by the river is 
 now comparatively small, but the controlling power of that water line 
 remains in full force, and must ever remain in force as long as the 
 river remains navigable to its present capacity. And this water line 
 affects, to a degree less or more, all the shipments to or from Mont- 
 gomery from or to all the long-distance markets. It would not take 
 cotton from Montgomery to the South Atlantic ports for export, but 
 it would take the cotton to the points of its ultimate destination, if 
 the railroad rates to foreign marts through the Atlantic ports were 
 not kept down to or below the level of profitable carriage by water 
 from Montgomery through the port of Mobile. The volume of trade 
 to be competed for, the number of carriers actually competing for it, 
 a constantly open river present to take a large part of it whenever 
 the railroad rates rise up to the mark of profitable water carriage, 
 seem to us, as they did to the Circuit Court, to constitute circum- 
 stances and conditions at Montgomery substantially dissimilar from 
 those existing at Troy, and to relieve the carriers from the charges 
 preferred against them by the Board of Trade. We do not discuss 
 the third and fourth contention of the counsel for the appellant, 
 further than to say that within the limits of the exercise of intelli- 
 gent good faith in the conduct of their business, and subject to the 
 two leading prohibitions that their charges shall not be unjust or
 
 280 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 
 
 unreasonable, and that they shall not unjustly discriminate so as to 
 give undue preference or disadvantage to persons or traffic similarly 
 circumstanced, the act to regulate commerce leaves common carriers, 
 as they were at the common law, free to make special rates looking 
 to the increase of their business, to classify their traffic, to adjust 
 and apportion their rates so as to meet the necessities of commerce 
 and of their own situation and relation to it, and generally to man- 
 age their important interests upon the same principles which are 
 regarded as sound, and adopted, in other trades and pursuits. The 
 carriers are better qualified to adjust such matters than any court or 
 board of public administration, and, within the limitations sug- 
 gested, it is safe and wise to leave to their traffic managers the ad- 
 justing of dissimilar circumstances and conditions to their business." 
 41 U. S. App. 453. 
 
 The last sentence in this extract is objected to by the commission's 
 counsel, as declaring that the determination of the extent to which 
 discrimination is justified by circumstances and conditions should be 
 left to the carriers. If so read, we should not be ready to adopt or 
 approve such a position. But we understand the statement, read in 
 the connection in which it occurs, to mean only that, when once a 
 substantial dissimilarity of circumstances and conditions has been 
 made to appear, the carriers are, from the nature of the question, 
 better fitted to adjust their rates to suit such dissimilarity of circum- 
 stances and conditions than courts or commissions; and when we 
 consider the difficulty, the practical impossibility, of a court or a 
 commission taking into view the various and continually changing 
 facts that bear upon the question, and intelligently regulating rates 
 and charges accordingly, the observation objected to is manifestly 
 just. But it does not mean that the action of the carriers, in fixing 
 and adjusting the rates, in such instances, is not subject to revision 
 by the Commission and the courts, when it is charged that such action 
 has resulted in rates unjust or unreasonable, or in unjust discrimina- 
 tions and preferences. And such charges were made in the present 
 case, and were considered, in the first place by the commission, 
 and afterwards by the Circuit Court and by the Circuit Court of 
 Appeals. 
 
 The first contention we encounter upon this branch of the case is 
 that the Circuit Court had no jurisdiction to review the judgment 
 of the Commission upon this question of fact; that the court is 
 only authorized to inquire whether or not the Commission has 
 misconstrued the statute, and thereby exceeded its power; that 
 there is no general jurisdiction to take evidence upon the merits 
 of the original controversy; and, especiall} 7 , that questions under 
 the third section are questions of fact, and not of power, and hence 
 unreviewable. 
 
 We think this contention is sufficiently answered by simply refer- 
 ring to those portions of the act which provide that, when the court
 
 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 281 
 
 is invoked by the Commission to enforce its lawful orders or require- 
 ments, the court shall proceed, as a court of equity, to hear and 
 determine the matter, and in such manner as to do justice in the 
 premises. 
 
 In the case of Cincinnati, N. O. & Texas Pac. Railway v. Inter- 
 state Commerce Commission, 162 U. S. 184, the findings of the 
 commission were overruled by the Circuit Court, after additional evi- 
 dence taken in the court, and the decision of the Circuit Court was 
 reviewed in the light of the evidence, and reversed, by the Circuit 
 Court of Appeals; and this court, in reference to the argument that 
 the commission had not given due weight to the facts that tended to 
 show that the circumstances and conditions were so dissimilar as to 
 justify the rates charged, held that, as the question was one of fact, 
 peculiarly within the province of the commission, and as its con- 
 clusions had been accepted and approved by the Circuit Court of 
 Appeals, and as this court found nothing in the record that made it 
 our duty to draw a different conclusion, the decree of the Circuit 
 Court of Appeals should be affirmed. Such a holding clearly implies 
 that there was power in the courts below to consider and apply the 
 evidence, and in this court to review their decisions. 
 
 So in the case of Texas & Pacific Railway v. Interstate Commerce 
 Commission, 162 U. S. 197, the decision of the Circuit Court of 
 Appeals, which affirmed the validity of the order of the commission, 
 upon the ground that, even if ocean competition should be regarded 
 as creating a dissimilar condition, yet that in the case under consid- 
 eration the disparity in rates was too great to be justified by that 
 condition, was reversed by this court, not because the Circuit Court 
 had no jurisdiction to consider the evidence, and thereupon to affirm 
 the validity of the order of the commission, but because that issue 
 was not actually before the court, and that no testimony had been 
 adduced by either party on such an issue; and it was said that the 
 language of the act, authorizing the court to hear and determine the 
 matter as a case of equity, " necessarily implies that the court is not 
 concluded by the findings or conclusions of the Commission." 
 
 Accordingly our conclusion is that it was competent, in the pres- 
 ent case, for the Circuit Court, in dealing with the issues raised by 
 the petition of the Commission and the answers thereto, and for the 
 Circuit Court of Appeals ou the appeal, to determine the case upon 
 a consideration of the allegations of the parties, and of the evidence 
 adduced in their support; giving effect, however, to the findings of 
 fact in the report of the Commission, as prima facie evidence of the 
 matters therein stated. 
 
 It has been uniformly held by the several Circuit Courts and the 
 Circuit Courts of Appeal, in such cases, that they are not restricted 
 to the evidence adduced before the commission, nor to a considera- 
 tion merely of the power of the commission to make the particular 
 order under question, but that additional evidence may be put in by
 
 282 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 
 
 either party, and that the duty of the court is to decide, as a court 
 of equity, upon the entire body of evidence. 
 
 Coming at last to the questions of fact in this case, we encounter 
 a large amount of conflicting evidence. It seems undeniable, as the 
 effect of the evidence on both sides, that an actual dissimilarity of 
 circumstances and conditions exists between the cities concerned, 
 both as respects the volume of their respective trade and the compe- 
 tition, affecting rates, occasioned by rival routes by land and water. 
 Indeed, the Commission itself recognized such a state of facts, by 
 making an allowance in the rates prescribed for dissimilarity re- 
 sulting from competition; and it was contended on behalf of the 
 Commission, both in the courts below and in this court, that the 
 competition did not justify the discriminations against Troy to 
 the extent shown, and that the allowance made therefor by the Com- 
 mission was a due allowance. 
 
 The issue is thus restricted to the question of the preponderance 
 of the evidence on the respective sides of the controversy. We have 
 read the evidence disclosed by the record, and have endeavored to 
 weigh it with the aid of able and elaborate discussions by the re- 
 spective counsel. 
 
 No useful purpose would be served by an attempt to formally state 
 and analyze the evidence, but the result is that we are not convinced 
 that the courts below erred in their estimate of the evidence, and 
 that we perceive no error in the principles of law on which they pro- 
 ceeded in the application of the evidence. 
 
 The decree of the Circuit Court of Appeals is accordingly 
 
 Affirmed. 
 
 Mr. Justice Harlan, dissenting. — I dissent from the opinion and 
 judgment in this case. Taken in connection with other decisions 
 defining the powers of the Interstate Commerce Commission, the 
 present decision, it seems to me, goes far to make that Commission 
 a useless body, for all practical purposes, and to defeat many of the 
 important objects designed to be accomplished by the various enact- 
 ments of Congress relating to interstate commerce. The Commission 
 was established to protect the public against the improper practices 
 of transportation companies engaged in commerce among the several 
 States. It has been left, it is true, with power to make reports and 
 to issue protests. But it has been shorn, by judicial interpretation, 
 of authority to do anything of an effective character. It is denied 
 many of the powers which, in my judgment, were intended to be con- 
 ferred upon it. Besides, the acts of Congress are now so construed 
 as to place communities on the lines of interstate commerce at the 
 mercy of competing railroad companies engaged in such commerce. 
 The judgment in this case, if I do not misapprehend its scope and 
 effect, proceeds upon the ground that railroad companies, whei: com- 
 petitors for interstate business at certain points, may, in order to
 
 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 283 
 
 secure traffic for and at those points, establish rates that will enable 
 them to accomplish that result, although such rates may discriminate 
 against intermediate points. Under such an interpretation of the 
 statutes in question, they may well be regarded as recognizing the 
 authority of competing railroad companies engaged in interstate 
 commerce — when their interests will be subserved thereby — to build 
 up favored centres of population at the expense of the business of 
 the country at large. I cannot believe that Congress intended any 
 such result, nor do I think that its enactments, properly interpreted, 
 would lead to such a result.
 
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